An ‘important voice’ for the homeless is effectively silenced
The Contributor, a street newspaper dedicated to raising awareness of and money for homeless people, provides a valuable voice to the public in Middle Tennessee about the plight of homelessness. Unfortunately, that voice has been silenced in Brentwood, Tenn., by an ordinance that effectively prohibits the distribution of the newspaper and by a court decision favorable to the city.
Brentwood’s ordinance prohibits anyone from occupying public streets, medians, alleys or sidewalks for the purpose of “soliciting or accepting a donation of money” from occupants of motor vehicles. The Contributor, which is sold by homeless people, challenged the ordinance in federal court after two of its vendors received citations in the city. (The ordinance was revised in July 2011, but still prohibits going into the streets to sell to people in cars.)
The newspaper contended the ordinance violated the First Amendment, but the city countered the measure was a valid method for ensuring traffic safety and flow. U.S. District Judge for the Middle District of Tennessee Todd Campbell, an excellent jurist, characterized the newspaper as “an important voice against homelessness in the Nashville area.”
However, Campbell reasoned in his Oct. 29 opinion in The Contributor v. City of Brentwood that the law was a content-neutral, constitutional way for the city to further its safety interests.
In First Amendment law, the designation of a law as content-based or content-neutral often determines the outcome of a lawsuit. Content-based laws are subject to the highest form of judicial review, known as strict scrutiny. On the other hand, content-neutral laws are subject to a less-rigorous review known as intermediate scrutiny.
Campbell found the Brentwood ordinance content-neutral because it was passed for legitimate safety reasons — “public safety, traffic safety and traffic flow” — not because of any “disagreement with the message of The Contributor.” The judge noted the law applied to everyone, not just Contributor vendors.
According to Campbell, the ordinance is also a reasonable time, place and manner restriction on speech. Under this standard of intermediate scrutiny, the city prevails if its law is narrowly tailored to serve a significant government interest and leaves open ample alternative channels for communication.
The judge reasoned that the law furthered substantial government interests in safety and left The Contributor free to be distributed by other means — through door-to-door solicitations, to pedestrians, in vending machines and on private property with permission.
However, there is another way to view this ordinance.
It imposes a blanket ban rather than a reasonable time, place and manner restriction on protected speech. A blanket ban on a method of speech is not narrowly tailored. It wholly suppresses The Contributor’s preferred medium of communication. As the Associated Press reported today, Contributor attorney Irwin Venick said the newspaper’s distribution method was meant to “promote face-to-face interaction between homeless or formerly homeless vendors with the public.”
“There are very few sidewalks and few people who walk on sidewalks in Brentwood,” Venick told the AP.
A reasonable time, place and manner restriction would limit Contributor vendors to distributing the paper on public sidewalks near roads during certain hours of rush-hour traffic. (I personally have bought scores of these newspapers from my car in stopped traffic and never seen a safety hazard.)
In City of Ladue v. Gilleo (1994), a case concerning the prohibition of yard signs, the U.S. Supreme Court wrote: “Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression.”
In Campbell’s view, “Plaintiffs have made the choice as to the medium of their message, but they can select other available means as well.” But these other avenues for expression are a poor substitute for sales to motorists.
A federal district court upheld a state law prohibiting people from standing in the streets and soliciting against a challenge by major newspapers whose vendors were cited for violating the law in Hollywood, Fla. However, that court upheld the law in Sun Sentinel Co. v. City of Hollywood (2003) after noting vendors could stand on public sidewalks and hand out newspapers to stopped cars:
“Importantly, [the Florida law] does not completely foreclose the vendors’ business opportunities on Hollywood’s streets. So long as the vendors stand on the median or sidewalk, and never enter the paved roadway, the vendors may still solicit stopped automobile drivers and passengers.”
The Brentwood ordinance does not have this level of balancing. It tilts the playing field to the city’s safety interests.
A more appropriate way to balance First Amendment freedoms and municipal safety would be to prohibit vendors from actually entering the streets when cars are moving and perhaps to prohibit distribution at certain times when there is lots of traffic.
But prohibiting vendors from standing on sidewalks and other public property and selling newspapers to stopped drivers simply silences too much speech.