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Springfield, Ill.'s Panhandling Ban Is Constitutional: 7th Cir.

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By Mark Wilson, Esq. on September 29, 2014 2:42 PM

An ordinance in Springfield, Illinois, prohibits panhandling in the historic downtown shopping district. The ordinance is specific in that panhandling is an oral request for money right now -- not an immediate request for money via a sign or an oral request for money at a later date.

Don Norton and Karen Otterson are panhandlers who've been arrested numerous times for violating the ordinance. On appeal to the Seventh Circuit, they claimed that the ordinance infringed on their First Amendment rights.

Not a Content-Based Restriction

While everyone agreed for purposes of simplifying the litigation that panhandling was speech, the key question was whether the ordinance was a viewpoint- or content-based restriction. It is so, argued the plaintiffs, because the statute distinguishes between requests for money now and requests for money later. In ISKCON v. Lee, however, Justice Kennedy said that this limitation made the regulation narrowly tailored, and therefore, permissible. So their argument is somewhat at odds with the Supreme Court's rule.

Or maybe not. The Supreme Court has only delineated two kinds of content-based restrictions that give rise to heightened scrutiny. One is a restriction on speech because of the ideas it conveys; the other is a restriction on speech because the government disapproves of the message.

The ordinance in question falls into neither category, Chief Judge Diane Wood explained: An immediate request for money "does not express an idea or message about politics, the arts, or any other topic on which the government may seek to throttle expression in order to protect itself or a favored set of speakers."

The ordinance also doesn't regulate the message; for example, by permitting a panhandler to request money because a child is sick, but forbidding a request for money for food. Simply put, the temporal component of the request is not part of the request's content.

Dissent: It's Obviously a Content-Based Restriction

Judge Daniel Manion disagreed, noting that in the face of a circuit split on whether panhandling ordinances prohibiting immediate requests for money, but not future ones, are constitutional, the Seventh Circuit sided with the minority. It's plain, he said, that an ordinance that must delve into the content of the speech to determine if the speech is prohibited is necessarily a content-based restriction: "That the [police] officer must listen to and understand the speech to determine if the ordinance has been violated means that the ordinance is content-based, unlike those laws which can be imposed based merely on the volume, location, or conduct accompanying the speech."

Moreover, he said, the ordinance "is still content-based because it advantages commercial speech over charitable speech." Someone is prohibited from soliciting money for charity ("I need money for food"), but not in exchange for a product or service ("Come buy a muffin!").

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