Atlanta Mayor Shirley Franklin says she expects to sign a measure to ban aggressive panhandling in parts of downtown Atlanta by week’s end.
The measure was pushed by business owners who say the area is awash in aggressive beggars . . .
Who wouldn't favor outlawing obnoxious, unruly panhandling? The trouble is, that's not what it's about. Laws already exist, even in Atlanta, to handle aggressive panhandling, fraudulent solicitation, public drunkenness, and other types of street misbehavior.
The Atlanta ordinance (.pdf from Aug. 15 City Council agenda) prohibits--among other things--all panhandling in a large central area designated the "Tourist Triangle." The Tourist Triangle includes a new state aquarium funded by Bernie Marcus, the founder of Home Depot. At the 11th hour it was augmented to include the area near the MLK Center "after some critics said the original proposal was neglecting tourist areas of interest to blacks." In many ways the ordinance resembles Chapel Hill's nighttime panhandling ban, which I opposed.
Let's call a spade a spade. This is an ordinance designed to get panhandlers out of sight. The preamble to the ordinance couldn't be more clear about it, actually:
WHEREAS, the City of Atlanta wants to protect and enhance the City’s attractions to citizens, tourists and visitors; and
WHEREAS, the City of Atlanta wants to continue to attract businesses to, and retain the current businesses in, Downtown Atlanta; and
WHEREAS, commercial solicitation causes a sense of fear and intimidation, particularly at night or in confined areas; and
. . .
WHEREAS, commercial solicitation in Downtown Atlanta impacts tourism and retail and causes a decrease in generated revenues to the City and its business community; and
WHEREAS, commercial solicitation has a negative impact on the retention of businesses in Downtown Atlanta and discourages businesses from locating in Downtown Atlanta; and
WHEREAS, commercial solicitation in Downtown Atlanta contributes to the negative perceptions of the City of Atlanta, which discourages tourism and retail and contributes to the lack of enjoyment of public places; and
WHEREAS, commercial solicitation throughout Downtown Atlanta is a common presence and disturbance to residents and businesses;
WHEREAS, commercial solicitation drives customers away from businesses in Downtown Atlanta, therefore affecting business transactions and threatening potential economic growth . . .
Panhandling has been recognized as a form of speech. In Loper v. New York City (1993), the 2nd Circuit held that beggars were engaging in protected speech, going on to note that “[e]ven without particularized speech, . . . the presence of an unkempt and disheveled person holding out his or her hand or a cup to receive a donation itself conveys a message of need for support and assistance.” And a sidewalk is a "quintessential public forum." So, restrictions on first amendment rights on downtown sidewalks are subject to "the highest scrutiny." The city "must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end."
Until recently, the "compelling state interest" that cities claimed was public safety. Ordinances restricting aggressive panhandling are designed to keep the peace, and by definition--since they focus on behavior--they don't impinge on the panhandlers' speech rights. So they are usually upheld. On the other hand, bans that reach beyond aggressive behavior can be stricken down if the court perceives them as broader than necessary for the given "state interest" of public safety.
In 1993, the City of Fort Lauderdale tried something different. It banned panhandling along a 5-mile strip of beachfront development, claiming as its "compelling state interest" not public safety but the protection of the recreational tourist trade. The argument was persuasive in the 11th Circuit: "Without second-guessing that judgment, which lies well within the City's discretion, we cannot conclude that banning begging in this limited beach area burdens 'substantially more speech than is necessary to further the government's legitimate interest.'" The city has a legitimate intertest in protecting its tourist trade, panhandlers are bad for said trade, therefore all is well. We don't know whether the court would have liked to second-guess the city's judgment, but it doesn't matter. The courts give a wide berth to city leaders.
Protestors of the Atlanta ordinance have vowed to appeal. But--this was not lost on the city--Atlanta too is in the 11th Circuit. The Atlanta ordinance is modeled on Fort Lauderdale's. Indeed, the preamble, jarringly out of synch with the PR spin, reads more like an argument to the court.
Meanwhile, here's the news from Fort Lauderdale:
A dozen years later, the sun-bleached city, with its palm trees and house-sized yachts, still attracts hordes of homeless people who hope for an easier life — and, presumably, still pose a threat to tourism.
Yet the panhandling ban goes unenforced.
In recent interviews, it was clear that many didn't even know of its existence, including police officers and those who work with the homeless.
"I'm not really sure we have a panhandling ban," said Laura Hansen, a leading advocate for the homeless in Broward County, which contains Fort Lauderdale.
Although the city fought in court for six years to keep the ban — battling all the way to the 11th U.S. Circuit Court of Appeals in Atlanta — it ultimately proved of little use as a tool to control beggars and homeless people, said Scott Walker, the assistant city attorney in charge of prosecuting nuisance crimes.
Walker found that traditional laws, such as prohibitions on trespassing, were more helpful for controlling the homeless population. "I don't really go out of my way to enforce panhandling anymore," he said.
Panhandlers, beggars, whatever you call them--and whether they are homeless or not--are a serious problem in our communities. But fearfully legislating them out of sight is not the solution.