Appeals court studies Los Angeles’ panhandling ordinance

Tuesday, March 17, 1998

Civil-liberties organizations and advocates for the homeless are hoping an appeals court doesn't see it the city's way when it comes to aggressive panhandling in Los Angeles.

City officials recently appealed to the 9th Circuit a U.S. district court judge's preliminary injunction against the newly enacted aggressive-solicitation ordinance.

The main provisions of the ordinance, drafted a year ago, prohibit panhandlers from asking people in a confined space, such as a restaurant, for money; following someone and trying to intimidate them into giving money; threatening people; using abusive and threatening language; soliciting money from people who are at an automatic-teller machine, a bus stop or similar place of public transportation where they have to stand and wait.

The Los Angeles City Council enacted Ordinance No. 171664 in July 1997, and it was set to become effective last August. The American Civil Liberties Union of Southern California and First Amendment attorney Carol Sobel filed an appeal in September, saying the ordinance violates the First Amendment's protection of free speech as well as the California constitution's free-expression guarantees.

In October, Judge Richard Paez granted a preliminary injunction blocking enforcement of the ordinance. ACLU attorney Peter Eliasberg hailed the ruling as a victory for free speech and fair play.

“This law is nothing more than a mean-spirited attempt by the city of Los Angeles to infringe on the free-speech rights of the less fortunate,” Eliasberg said at the time. “There are laws currently on the books to stop people from dangerous, harassing and abusive behavior. This law is unnecessary grandstanding and only chills speech which is constitutionally protected.”

The district court ruled that the law was invalid on its face under the California constitution because it restricts one form of speech–solicitation–while leaving other forms of speech unregulated. Therefore, the court said, the law constitutes an impermissible form of content discrimination.

Assistant city attorney Byron Boeckman disagrees. He said: “We believe that the ordinance does not implicate First Amendment-protected rights. We don't believe it violates free speech. It says you can't follow somebody, use foul language; you can't touch somebody, and you can't intimidate somebody. We think it's all pure commercial speech without any expressive content. Expressive speech is not implicated.”

Filed last month, Boeckman's brief challenges the decision of the district court to issue a preliminary injunction, and it also questions the power of the court to interpret state law rather than federal law. “The California Supreme Court should decide what the state constitution means, not a federal court,” Boeckman said.

“Some states interpret their First Amendment to be more protective of speech than the U.S. Constitution,” said Roger Conner, executive director of the Center for the Community Interest. On March 16, the Washington, D.C.,-based advocacy group for public safety and urban quality of life issues filed a friend-of-the-court brief supporting the city.

Conner said: “People are getting testy about federal judges interpreting the states' constitutions. It invites Congress to restrict the jurisdiction of the federal courts. Overreaching by federal judges is very dangerous thing to do for the integrity and independence of the federal courts in the long run.”

Sobel, who successfully defended Santa Monica street performers' free-speech rights, said, “CCI is not willing to deal with how poorly written this ordinance is and wants to focus instead on the general argument of whether someone could ban aggressive panhandling.”

In an interview with the First Amendment Center, Sobel said: “You look at the components of this ordinance, and you say to yourself that this is a classic case of First Amendment violations. No other ordinance that we have seen bears a significant similarity to this ordinance. It would be virtually impossible to enforce.”

All parties have indicated that a decision in Los Angeles Alliance for Survival v. City of Los Angeles could come down at any time. “Either way,” Sobel says, “The decision will have a significant impact on how cities can restrict such speech.”