‘Brother, Can You Spare A Dollar?’

“Brother, Can You Spare A Dollar?”

By Scott Forsyth This article appeared in the ‘Daily Record’ on February 11, 2009. All of us have been so solicited. As more people lose their jobs and are dispossessed, we will hear the plea more and more. Sometimes such pleas occur at an exit off of an expressway or along a public road. The elected officials of Richmond, Va. tried to do away with the practice. In late 2008 the City of Richmond drafted an ordinance prohibiting the solicitation of “contributions of any nature from the drivers of motor vehicles or the passengers therein.” Five years ago, Rochester City Council took a similar dim view of roadside solicitations and banned them. The local council characterized the practice as “aggressive panhandling.” Also labeled “aggressive” was more threatening conduct, such as “following [a] person being solicited, if” doing so “is likely to cause a reasonable person to fear imminent bodily harm,” “making physical conduct” with the person and “blocking the safe or free passage of the person being solicited.” Violators here can be fined and imprisoned. Code of the City of Rochester, §44-4. The solicitation of money is protected speech under the First Amendment. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980). There is “little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed.” Lopez v. New York City Police Dept., 999 F.2d 699, 704 (Second Cir. 1993). The message is the same: Charities and beggars need money to thrive. Charities call it achieving their mission; beggars simply are less subtle. The money is necessary in order to survive. Since soliciting for money in a public place is Constitutionally-protected speech, government only may regulate the time, place and manner of its expression. Such regulation must be “content neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 45 (1983). The burden is on the government to demonstrate that the regulation passes the test. The purpose of the ordinances in Richmond and Rochester is to promote “the free flow of pedestrian and vehicular traffic on streets and sidewalks,” a legitimate government interest. Unfortunately, the ordinances are not narrowly tailored to serve that interest. The ordinances apply in a number of situations in which traffic problems are not likely to arise. Both prohibit people from soliciting the occupants of vehicles parked lawfully at the side of the road, or who could pull over easily to the side of the road, for instance. Rochester’s ordinance one-ups Richmond’s by prohibiting solicitation at bus stops. Unlike the conduct I’ve mentioned, the ordinances do not require proof that the roadside or bus stop solicitor intends to disrupt pedestrian or vehicular traffic, nor that a reasonable pedestrian or driver would feel intimidated into giving or that evasive action needs to be taken. Richmond’s council has yet to adopt its ordinance, waiting instead for the results of studies on objections raised by the ACLU. To the best of my knowledge, Rochester has not enforced the suspect provisions of its ordinance. Hopefully, we never will. We face much greater challenges than a few folks standing along the road asking for a dollar.