Is Minneapolis' begging law doomed?

A pair of pieces on this page recently about the pros and cons of panhandling reflect clashing perspectives. But they obscure the larger point about the practice: The Minneapolis ordinance regarding begging by individuals may be doomed. ("Alms at the exit?" A shift in my street-corner strategy" Dec. 20, by Bill Boegeman, and "Your dollars at the exit are not doing panhandlers any favors," Dec. 22, by Linda Bennett-Graves).

A relatively minor decision by the U.S. Supreme Court a few months ago has taken on a life of its own and, like the gooey substance in the classic movie "The Blob," is spreading rapidly. One of its victims may be the ordinance restricting panhandling in Minneapolis and, for that matter, similar laws in a number of other Minnesota municipalities.

The anti-panhandling provision, which has been controversial since the outset, is directed at reining in intrusive begging on city streets, primarily in the downtown area. Although they are hardly pervasive, beggars occasionally seek money from pedestrians and at intersections of freeways and heavily trafficked roads in the Twin Cities area.

Panhandling, or begging, can be disturbing and disconcerting to those who are importuned and does not reflect well on the ethos of a community. However, it is a form of expressive behavior. It is akin to, although different in tenor from, some other, more socially acceptable types of solicitations, such as overtures to buy goods from youthful hawkers trying to raise money for their organizations or others canvassing neighborhoods for charitable purposes or even political causes and candidates.

But municipalities like Minneapolis frown on panhandlers, reminiscent of the caustic observation more than a century ago by French social critic and author Anatole France: "The law, in its majestic equality, forbids the rich as well as the poor … to beg in the streets …" In addition to its detrimental effect on the poor, the Minneapolis anti-begging law and other similar ones have a disparate impact on racial and ethnic minorities, who tend to go more wanting, especially in the inner cities. So, these measures are imbued with legal shortcomings and discriminatory hues.

In Minneapolis, panhandling, or begging, is regulated under the euphemism of "aggressive solicitation." The city ordinance bars "verbal requests for money or an item" if done in various "aggressive ways" or at sundry locations. The prohibited practices include physical contact; blocking a path or an entrance; following a person who has refused to give; using obscene, profane or abusive language; creating fear of bodily harm; using threatening or intimidating behavior; soliciting while under the influence of drugs or alcohol; begging after sunset or before sunrise, or begging in groups of more than one person.

The proscribed locations include restrooms; within 10 feet of a walkway; on public transportation vehicles or facilities; at parks, playgrounds and public entertainment sites or near them; at bus or light-rail stops or shelters; near sidewalk cafes; at entrances to commercial or government buildings; within 80 feet of an ATM or financial institution (expanded from the previous 20-foot perimeter); within 10 feet of a gas station, liquor store or convenience store, or at a parked or stopped vehicle. The prohibitions are, as many pedestrians and vehicle drivers will attest, often honored more in the breach than in the observance.

While perhaps the most well-defined, the Minneapolis ordinance is not novel. A number of other cities have their own versions, including St. Paul, Rochester and Brooklyn Center. Occasionally challenged in the courts, they have usually withstood judicial scrutiny on grounds that they protect the privacy of individuals against intrusive or abusive behavior.

But a sea change may be coming as a result of the Supreme Court decision, which came near the end of its 2014-15 term last June. In a case from Arizona entitled Reed vs. Town of Gilbert, the justices unanimously struck down a municipal law regulating the duration and size of signs directional to gatherings of nonprofit organizations, including church services and other religious worship events. Reversing two lower federal court decisions, the justices reasoned that the law was unconstitutional because it discriminated based upon the content of the signs. Justice Clarence Thomas, who authored the decision, wrote that the measure contributed an impermissible restriction on freedom of expression under the First Amendment because it was not "content neutral," singling out particular types of messages for restriction, while others were unrestrained.

The ruling stirred strong feelings. While agreeing with the outcome, Justice Elena Kagan disagreed with the reasoning, deeming the case an "easy one" that should not have prompted enunciation of a sweeping constitutional law doctrine. She viewed the Arizona law as not even being able to pass the "laugh principle," a variation of the "smell test," and said it should have been stricken without unnecessary elaboration.

The case has not been overlooked by others. The New York Times, in reviewing the 2014-15 rulings of the high court, characterized the decision as the "sleeper" case of the year, threatening the validity of laws governing securities fraud, warning labels on products and other consumer fraud matters. The "sleeper" ruling has also awakened other courts to the dichotomy in regulating content of communications. Based upon the Reed case, a number of courts around the country already have stricken various laws that singled out particular types of content, including restrictions on automated telephone calls, election laws and some panhandling laws, which have been stricken in Chicago and Colorado, among other places.

This unmistakable, and perhaps inevitable, trend imperils the panhandling law in Minneapolis and other municipalities, as well. The American Civil Liberties Union, which has opposed these measures in the past, as well as other institutional litigants are lurking, waiting for the right case to challenge the Minneapolis measure. Based upon the evolving pattern of the law, they may very likely succeed, not only in striking down the ordinance, but perhaps in requiring the municipalities to pay their legal fees for enacting constitutional measures, as well.

Minneapolis and other cities might be well-advised to take this likelihood into account and go back to the drawing board on the panhandling law. These laws have been modified from time to time in the past, and it behooves city officials to take another look at them in light of the Supreme Court's decision, and come up with measures that will achieve the salutary goals of protecting citizens from intrusive behavior without violating freedom of expression of individuals to engage in solicitation.

A solution is begging to be found.

Marshall H. Tanick, of Minneapolis, is a constitutional law attorney.