Ariz. court strikes down Phoenix panhandling law

Thursday, September 15, 2011

A Phoenix ordinance prohibiting all panhandling after dark violates the First Amendment, an Arizona appeals court has ruled. The appeals court reasoned that the law was not narrowly drawn enough to satisfy constitutional standards.

The case began when undercover officers charged three men – Timothy J. Boehler, Clyde P. Davis and Frank A. Simpson – with violating the ordinance, which prohibits soliciting “in a vocal manner in a public area between sunset and sunrise.” Boehler asked an undercover officer whether he could spare some change.  Davis asked another officer: “Can you help me out? Can you spare some change?” For his part, Simpson asked two officers: “I’m homeless, on the streets. Can you spare some change?”

After being convicted in municipal court, the men appealed to the superior court, which consolidated their cases and affirmed their convictions. The men then appealed to the Arizona Court of Appeals, which reversed the lower court’s ruling in its Sept. 13 opinion in State v. Boehler.

The appeals court noted that Phoenix has had an ordinance prohibiting aggressive panhandling since 1996. However, in 2003 the city amended its law to prohibit any kind of verbal solicitation after dark. City officials said begging after dark increased people’s sense of fear and intimidation.

Attorneys in the case argued over whether the panhandling law was content-based or content-neutral – whether it was specifically aimed at restricting a certain kind of message, or covered a full range of speech involving anyone’s asking anyone for anything after dark. At stake in the argument was how the court should analyze the ordinance. If it was content-based, then the court would use the most stringent form of judicial review, called strict scrutiny. A content-neutral law would be subject to a lesser form of review known as intermediate scrutiny.

Courts across the country disagree over whether anti-panhandling laws are content-based or content-neutral, the Arizona appeals court noted. The court did not decide the question, finding that even under the more-deferential intermediate-scrutiny standard, the government must show that its law advances a substantial government interest in a narrowly tailored way so as to restrict speech as little as possible.

The appeals court unanimously determined that the law was not narrowly drawn because it applied to many forms of peaceful solicitations that did not threaten, intimidate or harass others. The law could apply to someone politely asking for cash contributions to a political campaign or a church volunteer asking for donations to the church, the court pointed out.

The state argued that the 2003 amendment prohibiting all panhandling after dark was justified because people generally fear being asked for money in the dark of night. But the judges said the amendment “does not distinguish between solicitations that occur in dark alleyways and solicitations that take place in lighted buildings or well-lit street corners.”

Furthermore, the appeals court said that the ban on nighttime panhandling was not justified by the effect that peaceful begging may have on recipients.

“Our constitution does not permit government to restrict speech in a public forum merely because the speech may make listeners uncomfortable,” the appeals court wrote. “The First Amendment does not allow the City to restrict speech in a public forum merely because listeners might prefer not to hear a message that may annoy them or make them uneasy.”