Just days after celebrating victory in a 10-year-old lawsuit on behalf of a peace group barred from holding vigils at Baltimore’s Inner Harbor, the ACLU’s David Rocah was discussing another city policy – a panhandling ban that he says is sure to get the city into more constitutional hot water if enacted.

“It is clearly unconstitutional and the city solicitor’s legal defense of it is frankly incomprehensible,” said Rocah, senior staff attorney for the American Civil Liberties Union of Maryland.

Reached by phone, Rocah talked to The Brew about the “Prohibited Places” measure given preliminary approval on Tuesday by a City Council committee.

By banning soliciting near any business (the exact wording is “within 10 feet of any place where persons pay for goods or services with cash or credit cards”), the measure effectively prohibits soliciting any place in the city, Rocah said.

That provision in particular, he asserted, is overly broad and infringes on First Amendment free speech rights citywide.

Law Considers “Panhandling” Free Speech

Protecting the rights of people to approach others for money doesn’t mean putting up with assaultive behavior, Rocah said. Remarks by City Councilman James B. Kraft – that the bill should be passed to stop panhandlers from spitting on the food of outdoor restaurant patrons – are “ridiculous,” according to the lawyer.

“What does that have to do with the price of tea in China? Spitting in someone’s food is already illegal!” Rocah said.

Article 19, Subtitle 47 of the City Code already bans soliciting in traffic and “aggressive soliciting.”

The statute defines soliciting as “any act by which one person requests an immediate donation of money or other thing of value from another or others in person, regardless of the solicitor’s purpose or intended use of the money or other thing of value. The solicitation may be oral, written or by other means of communication.”

Is panhandling free speech? Of course, Rocah said.

“People have no trouble understanding that when it is the Sierra Club or NRA or the ACLU. Just because the destitute person does not have the same social status doesn’t mean they can’t ask for money,” he said.

Rocah said courts have allowed panhandling restrictions when narrowly aimed to address safety concerns. But broadly written bans, he said, leave the government open to charges of unequal justice.

“Are they going to enforce it on every marching band, every person selling bottles of water, every youth group, every fireman passing the boot?”

Captive Audience Argument

An early version of the bill was described as legally indefensible by the city’s chief solicitor, Elena R. DiPietro, in an August memo. Rocah said she was correct to slam that bill.

“There is simply no recognized substantial privacy interest in being free from listening to the speech of others when a person is standing in line or seated in areas defined in the amendment,” DiPietro wrote.

The bill is likely to cover “public park areas in the Inner Harbor or streets and sidewalk areas, both of which are considered public forums for First Amendment purposes,” she added, advising the city to “present evidence that the law was not enacted merely for the purpose of reducing the presence of beggars in some areas.”

Rocah said DiPietro should have applied the same argument to the even broader ban in the current amended bill. (The amendments were introduced at the behest of The Downtown Partnership.)  Instead, she gave the measure her approval. Rocah called the city’s legal reason in doing so “mystifying.”

The argument hinges on justifying the ban as a safety measure and focusing on the notion of people standing in line, buying a meal or taking out their wallets as “a captive audience.” Rocah said that argument makes no sense. “People are always carrying money, why would they be so much more vulnerable at that moment than another?”

These arguments have brought mixed success to other cities attempting to regulate panhandling with broad prohibitions. 

A judge last year shot down Arcata, Calif.’s ban on non-aggressive panhandlers within 20 feet of stores. In the absence of unique circumstances, the judge wrote, Arcata “may not restrict solicitation merely because it makes people uncomfortable.”

Indianapolis was taken to court for its “No Solicitation Zone.” Flagstaff, Seattle and Portland, Maine, are among the many cities that have enacted panhandling bans, only to have them legally challenged or struck down.

“People may not like being approached by others in public,” Rocah said, “but as the city law department itself said, this is not a constitutional basis to regulate people’s speech.”