Friday, March 4, 2011
Arcata's Law Unconstitutional
Contending that Arcata’s panhandling ordinance is unconstitutional, resident Richard Salzman informed the City Council that he intends to file a lawsuit unless the ordinance is amended.
As written, the ordinance makes it a crime to merely hold up a sign asking for money. By denying citizens constitutional right of free speech, Salzman contends the City Council overstepped its authority.
“If first they silence the poor and the homeless, and I say nothing, who will speak up when they try to silence me?” Salzman asked.
He noted that the section of the ordinance against “aggressive panhandling,” including blocking one’s path, any physical contact or yelling, would be left unchallenged by this legal action.
February 14, 2011
Susan Ornelas, Mayor
Michael Winkler, Vice-Mayor
Shane Brinton, Council Member
Alexandra Stillman, Council Member
Mark Wheetley, Council Member
Randy Mendosa, City Manager
Nancy Diamond, Esq., City Attorney
City of Arcata
736 F Street
Arcata, CA 95521
Re: Unconstitutional Panhandling Ordinance enacted April 16, 2010, as Arcata Municipal Code [AMC] Sections 4280-4282.
Dear City Council, City Manager and City Attorney:
Please take notice that Mr. Richard Salzman, a resident of, and taxpayer within, the City of Arcata, has retained the undersigned to bring an action against the City of Arcata to declare its panhandling ordinance unconstitutional and to enjoin the City from any further enforcement of said ordinance. The purpose of this letter is to invite the City to amend its panhandling ordinance as set forth herein, and thereby avoid the expense, uncertainty and unpleasantness of contested litigation.
Specifically, Mr. Salzman contends that AMC Sections 4282B, 4282C, 4282D, 4282E, 4282F and 4282G are unconstitutional. The overall impact of these sections is to criminalize begging in most of the City where it would be fruitful to beg. Begging is a charitable solicitation. The First Amendment clearly protects charitable solicitations. No distinction of constitutional dimension exists between soliciting funds for oneself and for charity. The fact that a beggar keeps the money she receives does not strip the speech of First Amendment protection. A speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because she is paid to speak.
To be lawful, the ordinance must serve a compelling interest that is narrowly drawn to achieve its end. The City’s compelling interest, if one exists, is well-served by the ordinance’s ban on aggressive panhandling, to which Mr. Salzman does not take exception. Mr. Salzman objects to the near-total ban on begging in public fora, the justification for which can be little more than avoiding “annoyance” to the public, hardly a compelling interest in First Amendment jurisprudence. Moreover, the ordinance’s ban on begging is not “narrowly tailored;” indeed, it is embarrassingly broad. To achieve the City’s goal of criminalizing the speech of a few beggars, the City has criminalized all solicitations for money. A girl scout cannot sell cookies on the City’s streets. Nor may any charity solicit money in most of the City. A beggar cannot even hold a sign up to ask for money; a more clearly content-based restriction on speech is difficult to imagine.
The City’s attempt to justify these draconian restrictions on speech under the so-called “captive audience rule” is unavailing. The City’s expansion of that concept to include almost all public space within the City perverts the intent of the rule and strikes at the very heart of discourse in a democratic society- the right to communicate with one’s fellow citizens on the public commons.
Other constitutional concerns are implicated in the City’s ordinance. The criminalization of solicitation implicates equal protection concerns, to wit, the ordinance targets the First Amendment rights of the City’s poorest and most downtrodden residents, while it remains legal to accost members of the public to ask the time of day, or to sign a petition. The complexity of the ordinance, with its crazy patch-work of places where it is illegal to beg, implicates notice and due process concerns. A reasonable citizen of the City lacks adequate notice as to where she may beg and where she may not beg. Likewise, the ordinance’s definition of “panhandling” leaves questions unanswered: Is a check or credit card transaction on the City’s streets illegal, or just a cash transaction? This renders the ordinance subject to challenge for vagueness.
Mr. Salzman would prefer to resolve this matter without litigation, and to that end, invites the City and its attorneys to meet with the undersigned to work toward resolution of the issues raised herein.
Peter E. Martin
Read article in Arcata Eye
and post on Humboldt Herald.
Link to JPR radio show on subject (starts at 30:min mark):