The Effects of Reed v. Town of Gilbert on Panhandling Laws

Photo Credit: Courtesy of Quinn Dombrowski

By Megan Shook, Staff Member (Vol. 16)

An old English nursery rhyme illustrates an early antipathy to beggars:

Hark! Hark! The dogs do bark;

The beggars are coming to town.

Some gave them white bread;

And some gave them brown,

And some gave them a good horsewhip,

And sent them out of town.

The seemingly harsh story containing the rhyme finds some sympathy in modern law, especially in the anti-panhandling ordinances enacted by cities across the country.

To panhandle, according to the dictionary, is “to stop people on the street and ask for food or money.” As of 2016, 27% of American cities prohibited panhandling citywide, a 43% increase from 2006. Another 61% of cities banned panhandling in specified public places, a 7% increase from 2006. This uptick in anti-panhandling ordinances has been attributed to a perfect storm of two factors: an increase in homelessness as a result of the Great Depression and a “renaissance of development” in cities’ downtown areas.

The Supreme Court of the United States has never directly spoken on the constitutionality of anti-panhandling ordinances, but Reed v. Town of Gilbert, a 2015 Supreme Court decision concerning church signage, has become “the unexpected reason panhandling bans are being struck down across the country.” Indeed, one commentator wrote that the legal community predicted Reed would have “‘unintended consequences’ in not just signage codes but in a wide range of areas historically considered fair game for governmental regulation.” This premonition became especially true for the constitutional issue of panhandling.

In order to determine whether a law is content neutral on its face, Reed instructs a court to ask whether the “law applies to particular speech because of the topic discussed or the idea or message expressed.” If a distinction is “drawn based on the message a speaker conveys,” the law is subject to strict scrutiny. An additional recognized category of content based laws “‘cannot be justified without reference to the content of the regulated speech,’ or [was] adopted by the government ‘because of disagreement with the message [the speech] conveys.’”

Justice Kagan filed a concurring opinion to express her concern that Justice Thomas’s reformulated test would invalidate “‘entirely reasonable’” laws due to its rigid approach, recognizing that “it is the ‘rare case[ ] in which a speech restriction withstands strict scrutiny.’” That premonition may become true for “valid” panhandling regulations.

A whole host of panhandling ordinances have fallen after Reed, but Reed was not necessary to strike down anti-panhandling ordinances, as evidenced by the Pre-Reed circuit split on the ordinances’ constitutionality.  Some courts did not require Reed’s reasoning to hold that anti-panhandling ordinances were unconstitutional. Even before Reed, courts disallowed governmental justification to override content-based distinctions.

Constitutional law jurisprudence mandated even before Reed that content-based restrictions of speech must survive strict scrutiny. That rule makes Reed seem wholly unnecessary in the realm of panhandling challenges if one ignores the possibility of finding anti-panhandling ordinances content-neutral.  The traditional weight attached to the First Amendment never seemed to be applied with true vigor to ordinances prohibiting panhandling.

One commentator suggested that anti-panhandling ordinances can and should be upheld post-Reed in certain circumstances under the “captive audience” doctrine. The Supreme Court provides some support for this theory in Krishna, writing that “face-to-face solicitation presents risks of duress that are an appropriate target of regulation” because a “solicitor can target the most vulnerable.” This theory accords more concern to the listener’s safety and ability to escape a panhandler.  However, in the two years post-Reed, courts have not relied on this theory to evaluate anti-panhandling ordinances.

Another commentator maintains that anti-panhandling ordinances will be upheld if governments provide a sufficient showing of evidence supporting their non-speech-related interests. The most promising type of panhandling regulation to survive Reed (and thus strict scrutiny) would be a ban on “aggressive panhandling,” but such a ban must do more than merely purport to address those more dangerous panhandling occurrences.

Cities that wish to continue regulating panhandling despite Reed may attempt a workaround of a traditional regulation by using the nonpublic fora approach or arguing for reasonable time, place, and manner restrictions.  New York is considering a proposal called the “Times Square Commons” which would designate most of its unique Times Square location as “civic zones” or “flow zones” wherein panhandling is prohibited.  Smaller “activity zones” would be provided where panhandling could occur.

Proffered justifications for this plan relate to the unique nature of Times Square and safety concerns. The idea is put forth as a valid time, place, and manner restriction within a traditional public forum.  Whether or not Times Square Commons’ proponents are actively seeking to circumvent Reed, this case illustration seems to fall within the narrow category of anti-panhandling ordinances Reed would allow.

While we are currently enjoying a healthier economic period, it is also possible that in the event of another slump, cities and towns may try to reignite or work around the old bans on begging.  There is currently an additional backlash against panhandlers actually making “too much money” begging on the streets, i.e. not “really” being poor. Reed, not a universal understanding that panhandling is protected speech, will be the central impediment to efforts in response to a “crack down” on panhandling.  It is also possible that some justices will be persuaded by Justice Kagan’s concurrence that Reed strikes down “entirely reasonable” regulations – such as panhandling bans in certain parts of town. But that is a question for the new Supreme Court who so far has declined to reexamine Reed.