Cities in Illinois and across the country have laws regulating panhandling. But courts are tossing them out, and Springfield’s ordinance could be next. How can local governments balance First Amendment rights and maintaining public order?
Karen Otterson spends hours most days standing on a corner in Springfield, holding a sign that asks people who pass by to give her money. She tries to dodge the city’s police officers, who frequently arrest or ticket her and fellow Springfield resident Don Norton for panhandling. Otterson and Norton have sued the city to stop an ordinance that bans verbally asking for a donation in the downtown historic district.
“We decided we feel this is a First Amendment violation,” Norton says. “So we needed to seek out a lawyer.’”
Cities across the country have panhandling ordinances and are enacting even more, but many aren’t standing up to legal challenges. Panhandling laws in various cities, including Chicago; Grand Junction, Colorado; Lowell, Massachusetts; Portland, Oregon; and Worchester, Massachusetts have been struck down on First Amendment grounds.
Panhandling is a complicated issue for many cities. The First Amendment protects panhandlers’ speech, but local government officials say they need to regulate it to shield the public from aggressive soliciting. Panhandlers also face opposition from companies and economic development organizations who complain that their presence makes cities look unsafe and costs them business. Panhandlers and advocates for the homeless call panhandling ordinances and other laws directed at the homeless and poor a criminalization of poverty.
Both local governments and advocates in Illinois and around the country are closely watching the Springfield case as cities attempt to create restrictions that will pass constitutional muster.
Technically, panhandling is legal in Springfield, but it’s regulated. Norton says he and Otterson have panhandled in the city for about eight years. They met in a Springfield homeless shelter in 2000. Otterson says she was fleeing a violent husband and was trying to cope with physical and mental disabilities. Norton got stuck in Springfield with no money after being arrested for drunken driving while visiting the city for job interview. He attributes the arrest to a difficult period in his life. He has going through a divorce, and his mother had died.
The couple currently rents a home. Otterson gets disability payment, and Norton works occasional odd jobs. But they say it’s not enough to pay their bills.
They started talking about filing a lawsuit against the city of Springfield about five years ago after feeling harassed by law enforcement. “I’m tired of being arrested for no reason at all,” Otterson says. “You can be homeless or you can’t be homeless, it don’t matter. If you’re needing a lot of help because of the homelessness you went through, then you should not have to sit there and be subject to being beaten, battered, starved or thrown out of the city.” They also filed another lawsuit last year over an ordinance requiring panhandlers stay five feet away from the person they’re soliciting.
Cities generally define panhandling as soliciting an immediate donation in public places, such as streets or parks. Many cities bar “aggressive” panhandling, which includes touching someone, following them or cursing. Some cities, like Springfield, have tried to restrict panhandling in certain areas. The city of Carbondale in Southern Illinois passed a law a few years ago that bars panhandling in areas covering most businesses located along Illinois Routes 51 and 13. It also prohibits panhandling on all public property, including sidewalks and parks.
Statutes like panhandling ordinances have a long history in the United States. Laws against vagrancy, which criminalized things such as homelessness, unemployment and begging for money go back centuries, according to the Criminal Justice Legal Foundation, a public interest law nonprofit group.
Vagrancy laws in England from around the 14th century were widely copied here in the U.S. Author Kenneth Kusmer, who has traced the history of homelessness, says these laws were a response to economic depression after the Civil War that left masses of soldiers and laborers unemployed. In Illinois, two-thirds of the vagrants were military veterans. Known as hobos, most of the people arrested for vagrancy were white single men who worked as traveling laborers. In the South, vagrancy laws were used to discriminate against African American slaves freed as a result of the 1868 14th Amendment of the U.S. Constitution. *
Legal challenges over the years have chipped away at such restrictions on free speech grounds, but constitutional law experts agree that the U.S. Supreme Court’s 2015 decision in Reed v. the Town of Gilbert dramatically expanded free speech protections for panhandlers.
While the case had nothing to do with panhandlers, its implications benefit them. The town of Gilbert, Arizona had restrictions on outdoor signs based on the type of sign. Political signs could stay up 60 days, while noncommercial event signs could only stay up for about 12 hours. The Good News Community Church sued the city in 2007 after the city repeatedly complained about the church’s signs being up too long.
Courts decide on whether a law limiting expression violates the Constitution based on whether the law is trying to restrict the message or the circumstances around the message. If it’s regulating the time, the place or manner in which the message is expressed, it’s considered content-neutral. If it’s targeting the message, it’s called content-based.
In other words, cities can’t ban a political protest because they don’t like what the group will say, but they can set the time or place for the protest and how the protest will happen.
“The Supreme Court has been wrestling for probably also 30 years over what it means to say something is content neutral or content discriminatory,” said Steve Wermiel, a constitutional law professor at American University. “That process wasn’t about panhandling, it was about the whole realm of free speech.”
The Supreme Court issued a unanimous decision in Reed, finding that the sign restriction was content-based because the city had different rules for signs with political messages than those for event signs.
Before the decision, most city panhandling laws were considered content-neutral — similar to an ordinance that bans loud music or blocking traffic. “Previously, we might have thought that the most obvious violation of the First Amendment would be a regulation that says, ‘you can have pro-war rallies in this park, but you can’t have anti-war rallies,’” Wermiel says. But he says that before the Reed decisions a government could have said, “‘in this public park you can talk about baseball, but you can’t talk about war’” and it “wouldn’t have been thought to violate the First Amendment.”
The court did leave the door open, but only crack, to laws that narrowly restrict speech based on its content. “Content-based laws — those that target speech based on its communicative content — are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests,” Justice Clarence Thomas wrote in the majority opinion.
Otterson and Norton filed their lawsuit in district court against the city of Springfield in 2013. They claim the city’s ordinance violates the First Amendment because it bans oral requests for an immediate donation when panhandling but not pleas for people to make donations at a later time. The suit also argues that banning panhandling in the downtown area violates free speech.
Steve Rahm represents the city of Springfield in both lawsuits and says the city has a compelling interest in regulating panhandling.
“If we are able to show that it’s still justified under a strict scrutiny, then we will win ultimately and the ordinance will be upheld as to the downtown historic district,” he says. “If we’re not able to succeed, then the downtown portion of the ordinance will be essentially overturned, held unconstitutional.”
The case itself has yet to go to trial, but the first battle over preventing the city from enforcing the law just recently ended at the U.S. Supreme Court.
Both the district court and the appeals court initially ruled against the panhandlers’ request to stop the ordinance from taking effect, saying Springfield’s ordinance was content neutral. But, the appeals court reconsidered its decision after the Reed ruling. It then sided with Otterson and Norton and issued an injunction. Springfield appealed to the nation’s highest court, but the justices declined to hear the case.
Chicago lawyer Mark Weinberg represents Norton and Otterson in their lawsuit pro bono. He’s nicknamed “king of the panhandlers” by friends. A civil rights attorney, he’s filed and won several lawsuits on behalf of panhandlers, starting in the early 2000s. One case he brought was a lawsuit against the city of Chicago because he claimed the city was wrongly banning panhandling along Michigan Avenue. The area is known as the city’s premier shopping destination. He and his clients won and received monetary compensation.
Weinberg got interested in the rights of panhandlers when he wanted to sell his book about former Chicago Black Hawks hockey team owner Bill Wirtz on city’s streets, but the city initially said no.
He says he was shocked after reading in Springfield’s ordinance that bars panhandlers from speaking. “Once I read the Springfield ordinance, I realized it was the most egregious, anti-panhandling, restrictive ordinance in the entire country against the rights of panhandlers.”
Weinberg says he doesn’t see the difference between the rights of panhandlers and the rights of girl scouts who sell cookies. “Listen, I get it,” he says. “I understand why these people are not liked by the general populace, and I understand why politicians try to pass laws that are very harsh towards them. But I’m a big believer in the First Amendment, and I don’t think these people should be stepped on just because people don’t like them.”
Communities are struggling to find a balance between protecting civil rights and maintaining public order. Panhandlers can make pedestrians uncomfortable or scared. Many cities limit panhandling in places where it’s hard to walk away, such as being near ATM machines, waiting in lines and eating in a sidewalk café.
Business owners in particular say they are frustrated with panhandlers soliciting near their establishments. Meghan Cole, executive director of Carbondale Main Street, a downtown economic development organization, spoke at the city council’s December 2012 meeting on prohibiting panhandling in business-zoned areas. Cole said she gets many complaints from businesses about aggressive and non-aggressive panhandlers. She said panhandlers have harassed her and other Main Street employees at least twice by pounding on their windshields and climbing on to their cars.
“This is going to sound very harsh, but I don’t care where they go, not in the business district,” she said. “Maybe we don’t want them in the residential districts either, but not in the business district.”
Carbondale Assistant City Attorney Jamie Snyder says the city’s panhandling law has never been challenged, but it’s being reviewed since the appeals court reversed its decision in the Springfield case.
Annie Coakley, executive director of Downtown Evanston, a pro-business nonprofit, says business owners tell her they watch shoppers cross the street from their businesses to avoid a panhandler.
Coakley is encouraging Evanston residents to donate to charities that could help the panhandlers instead of donating to the panhandlers directly. Some city residents blame Northwestern University students for giving panhandlers money.
“We’re also going to be reaching out and explaining to the students that, yes, people are asking for money because they probably need it,” Coakley says. “But at the same time, we’re not sure if that money is being spent specifically on sandwiches … or some other type of sustenance.”
Evanston resident Hank Goldman is president of his condo building board and on the Downtown Evanston Board of Directors. He says many of the city’s panhandlers are not homeless and don’t need the money to buy food. He says they harass residents and hurt downtown retail sales while making a lot of money. He wants the city to pass an ordinance similar to a law in Berkeley, California. Goldman says it would ban people from sitting in front of stores of leaning up against them and panhandling. It would also prohibiting people from sitting or lying down on the street and panhandling.
“Some of the homeless will also basically beg for money, there’s no question,” Goldman says. “But the professional — if I can use the word — professional panhandlers are the ones we’re trying to root out.”
The laws passed late last year in the California city, but have not been implemented. They are aimed more at regulating its homeless population than panhandling. The ordinances include banning going to the bathroom in public and dictating the amount of space someone’s belongings can take up on the sidewalk. The city of Berkeley did not respond to requests for comment.
Advocates for homeless people see Goldman’s proposed ordinance and many current panhandling laws as a way to criminalize living in poverty and on the streets. Tristia Bauman, a senior attorney for the National Law Center on Homelessness and Poverty says people become homeless for various reasons and are forced to panhandle for money. She says barriers to affordable housing and problems with the criminal justice system cause people to stay unemployed and homeless.
“There’s been a significant rise in criminalization laws generally in the past several years,” Bauman says. “Laws targeting panhandling activity have increased at least 25 percent in the study that we have done since 2009 in a core set of 187 cities across the country.”
The Chicago Coalition for the Homeless has filed the first lawsuit under the 2013 Illinois Bill of Rights for the Homeless Act. The coalition is suing Chicago on behalf of a homeless man named Robert Henderson, who claims the city destroyed his property, including prescription medication. Diane O’Connell, staff attorney for the collation, says ordinances that restrict panhandling in certain areas of cities could violate that new state law.
“We have the right to use and move about freely in public spaces and that includes public sidewalks,” O’Connell says of the law. “So, one complaint I’ve had from a lot of street-based homeless people is that they get aggressive panhandling tickets, whether they’re aggressively panhandling or not, just from kind of hanging out on the street and being homeless.”
Otterson and Norton say they’ve been harassed by Springfield police officers since filing their lawsuit. For Otterson, panhandling means standing at corners and holding a sign for hours in all kinds of weather, and being called names, propositioned or arrested. But she says there have also been people who have given generously to her or just treated her like a human being.
Despite the challenges of her lifestyle, Otterson says she still needs to panhandle to get by.
“My panhandling rights are my panhandling rights,” she says.