390 F. Supp. 3d 114
D.C. Cir.2019Background
- The District of Columbia's Panhandling Control Act criminalizes "panhandling" (requests for immediate donations) and bars it in specified public places, including "aggressive" panhandling, within 15 feet of certain subway entrances (McFarlin zones), and from occupants of vehicles.
- Five named plaintiffs were arrested (and some prosecuted) under D.C. Code §§ 22-2302(a), (b), and (d); some allege detention and confiscation of money.
- Plaintiffs brought a class action under 42 U.S.C. § 1983 claiming the Act is a content-based restriction on protected speech that fails strict scrutiny after Reed v. Town of Gilbert.
- The District moved to dismiss under Rule 12(b)(6), arguing the Act is content-neutral or applies in nonpublic forums and, in any event, survives strict scrutiny and that some claims are duplicative.
- The court denied the motion to dismiss, holding Plaintiffs plausibly alleged First Amendment claims: the Act regulates expressive conduct in public forums, is plausibly content-based, and Plaintiffs allege less-restrictive alternatives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether panhandling is protected expressive conduct | Panhandling is expressive and protected by the First Amendment | Concedes speech is expressive for present purposes but disputes other elements | Court accepts Plaintiffs' allegation that panhandling is protected speech for 12(b)(6) purposes |
| Whether the Act is content-based (triggering strict scrutiny) | The Act targets requests for money (immediate donations) and thus discriminates based on message | The Act is content-neutral regulation of conduct or applies in nonpublic forums | Court finds Plaintiffs plausibly alleged the statute is content-based; merits reserved for later stages |
| Whether the fora targeted are public forums (affecting scrutiny level) | The challenged provisions apply in public forums (sidewalks, plazas, McFarlin zones) | District contends some areas (e.g., McFarlin zones/transportation areas) are nonpublic forums | Court treats forum characterization as a mixed question of law and fact and accepts Plaintiffs’ allegations for now |
| Whether claims should be dismissed as duplicative | Plaintiffs assert distinct relief for arrested-only vs. prosecuted class members | District argues Claim 3 (prosecution) duplicates Claim 1 (arrest) | Court declines to dismiss as duplicative at this stage; different relief and facts may apply |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based speech regulations are presumptively unconstitutional and subject to strict scrutiny)
- Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721 (2011) (strict scrutiny requires narrow tailoring to a compelling interest)
- Edenfield v. Fane, 507 U.S. 761 (1993) (government must show restrictions materially alleviate asserted harms)
- Boardley v. U.S. Dep't of the Interior, 615 F.3d 508 (D.C. Cir. 2010) (First Amendment forum analysis and factual record often necessary)
- Norton v. City of Springfield, Ill., 806 F.3d 411 (7th Cir. 2015) (ordinance barring immediate requests for money found content-based post-Reed)