A plea for caution on panhandling ban

Last week, when I wrote about Cedar Rapids' proposed panhandling ordinance, I tossed in some stuff near the end about begging being free speech. I was sort of flip about it.

But for David Furlow, a Houston attorney and historian who has litigated a variety of First Amendment issues as high as the U.S. Supreme Court, it's a serious argument.

“It's a form of speech,” Furlow said. “When I put out my hand when you pass by, you're not just seeing an outthrust hand. You're understanding the message conveyed, which is, ‘brother can you spare a dime?' That's a form of expressive speech.”

Furlow knows most folks don't see it that way. He suggests switching out the panhandler for a pastor seeking donations from the pulpit. “Would anybody doubt that's protected speech? It's all in context,” he said.

I sent Furlow a copy of Cedar Rapids' draft panhandling ordinance provided by the police department. I know it's being revised, but I wanted to see what he thought about its basic provisions.

A main focus of the ordinance is banning “aggressive panhandling.” And Furlow contends that if the City Council sticks strictly to specific, aggressive behavior, it can create an ordinance that restricts conduct but not speech or expression. That way, if it was challenged in court, the city would have a lower legal threshold to clear in proving the ordinance's necessity.

But he also sees red flags. Furlow believes the ordinance's larger prohibition against any soliciting from motorists along all public streets is overly broad and could ensnare other activities, and potentially protected speech. He said courts across the country have tossed similar provisions, some pointing out, for example, that kids yelling to cars from a lemonade stand might break the law.

Cedar Rapids' ordinance seeks to carve out exceptions for charities, church groups and student organizations. Council members also say they want to exempt “passive” panhandling.

“So you're selecting that speech which is permitted based on the worthy ideals being advanced, versus that which is prohibited, someone daring to say I need money.” Furlow said, arguing that those carve-outs may actually put the ordinance on shakier legal ground.

It is tough to have much sympathy for some of our local panhandlers. But it's also true that throughout our history, the task of asserting our First Amendment rights has often fallen to a rogues' gallery of pornographers, neo-Nazis and assorted characters at society's fringe. Most efforts to limit speech are first sold as public safety measures. No matter how undesirable the target might be, we should think long and hard before accepting such limits.

Basically, the council needs to be very careful. Don't overshoot aggressive beggars and hit the Constitution.