Panhandling is likely a protected form of speech under the First Amendment, a federal appeals court has ruled.
Michael Rodgers, a disabled veteran, challenged an Arkansas anti-loitering law that got him ticketed, jailed and fined for panhandling.
His lawyers argued that he was afraid to risk further penalties and refrains from begging, on which he depends to survive.
Another plaintiff, Glynn Dilbeck, who is homeless, also has been ticketed for loitering.
Their lawyers from the American Civil Liberties Union argued that the new prohibition infringes on their clients’ First Amendment rights.
A three-judge panel of the U.S. Court of Appeals for the 8th Circuit agreed, ruling earlier this month that the ban likely infringes constitutional rights, leaving in place a statewide injunction that bars police from targeting loiterers.
“Having established that Rodgers and Dilbeck’s chilled speech amounts to a constitutional injury, we have no trouble concluding that the injury is fairly traceable to the potential enforcement of the anti-loitering law and would be redressed by an injunction prohibiting its enforcement,” the court ruled.
The three-judge panel was comprised of Chief Judge Lavenski Smith, and Judge Michael Melloy, both George W. Bush appointees, and Judge David Stras, a Trump appointee.
The law prohibited loitering with the purpose of asking for charity or a gift in a way that would harm another, threaten or harass, and in any way that may create a traffic hazard. An individual found in violation of the statute could be fined $500 and spend up to 30 days in jail.
Arkansas had argued it wouldn’t enforce the anti-loitering ban on “polite” beggars — suggesting that Mr. Dilbeck and Mr. Rodgers were not targets of the police.
“Even if true now, however, Arkansas’s in-court assurances do not rule out the possibility that it will change its mind and enforce the law more aggressively in the future,” the court said.
Citing a 1980 Supreme Court case, the court said that asking for a gift is protected speech, but it noted the government can regulate speech when it has a narrow interest in doing so. Such is the case with soliciting votes 100 feet within a polling place — conduct that was deemed illegal by the high court in 1992.
But in the case of Arkansas and its panhandling ban, the court said the state failed to show a significant enough reason — and a narrow ability — to curtail the otherwise protected speech.
Holly Dickson, legal director with the ACLU of Arkansas, said being poor isn’t a crime and people have a legal right to ask another for help.
“On behalf of our plaintiffs and all Arkansans, we’re grateful and relieved that this unconstitutional effort to criminalize poverty has been struck down once and for all,” Ms. Dickson said.
The ruling was the second time Arkansas’ attempts to curtail loitering hit a legal snag. A 2015 anti-begging law was ruled unconstitutional by a federal judge. The Arkansas General Assembly in 2017 responded by passing an updated version of the law that resulted in the ruling this month.
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