Catch-22 on Panhandlers?

August 28, 1994

Let's see if we have this straight: U.S. District Court Judge Frederic Smalkin ruled that Baltimore's law to prevent "aggressive" panhandling is not an unconstitutional infringement of beggars' First Amendment free speech rights (as lawyers for panhandlers claimed). The judge ruled that some types of speech can be outlawed, if there is a "compelling" state interest in outlawing it, and if the law doing that is not overly broad.

The city has a "compelling" interest in protecting people from intimidating behavior, in promoting downtown tourism and business, and in "preserving the quality of urban life," Judge Smalkin said. He also said the city's "Aggressive Panhandling Ordinance" is "narrowly tailored" to serve its interest. But, he continued, precisely because the ordinance is so narrow, it violates the Constitution's "equal protection clause." In other words, because the law doesn't include everybody -- because it isn't unconstitutionally overly broad -- it is unconstitutionally narrow.

Confused yet?

Judge Smalkin suggests the city prohibit "all aggressive solicitation for money. . " in the ordinance. Then "it might be on stronger constitutional grounds." Yes, and no. Such an ordinance might be so broad as to violate the First Amendment. It looks more like quicksand than stronger ground. We doubt that even Judge Smalkin believes this approach would work. He quotes Chief Justice William Rehnquist's comment in a similar case that this is a "Catch-22" situation.

It never occurred to us that there needed to be a law to stop the Salvation Army, the March of Dimes, the Dole for President Committee and similar groups from doing those things specified in the ordinance: threatening bodily harm; physically accosting and following non-givers and not taking no for an answer; blocking safe passage; using obscene language and otherwise intimidating people in the course of asking for money. Those were the practices of a specific group of people that prompted the ordinance. But if a catch-all law is now required, maybe the only option is to go for it and hope it survives. Downtown Baltimore needs protection from aggressive, abusive panhandlers who threaten not only the individuals they confront but, in the long run, the city itself.

Lawyers for the city and the Downtown Partnership seem to believe they can draft a law that is neither too narrow nor too broad. The panhandlers' lawyers at the American Civil Liberties Union say it's possible, but not probable. They say the city is "between a rock and a hard place." Both sides say they want to see something done about the problem that is in everybody's best interest. If so, the best thing to do now is for the two sides to work together to draft such an ordinance.

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