520 S.W.3d 331 | Ky. | 2017
OPINION OF THE COURT BY
The Lexington-Fayette Urban County Government adopted Ordinance 14-5 prohibiting all begging and soliciting from public streets or intersections within the urban-county area.
I. FACTUAL AND PROCEDURAL BACKGROUND.
In 2007, the Lexington-Fayette Urban County Government enacted Ordinance 14-5, a blanket prohibition against all “begging and solicitation of alms.” Precisely, the ordinance criminalizes the following behavior:
(1) No person shall beg or solicit upon the public streets or at the intersection of said public streets within the urban county area.
(2) Any person who violates any provision of this section shall be fined not less than one hundred dollars ($100.00) or be imprisoned not less than ten (10) days nor more than thirty (30) days or both for each offense.
According to the text of the ordinance, any person in the city streets or at city intersections seeking any form of financial contribution may suffer criminal liability despite the ordinance’s title suggesting this prohibition is limited only to solicitation of “alms.”
Dennis 'Champion was standing with a handmade sign at a prominent Lexington intersection begging for financial assistance when he was spotted by law enforcement. The officer apprehended him and cited him for violátion of Ordinance 14-5. Champion failed to appear at his designated court date in district court, and a bench warrant was issued for his arrest. He was later arrested and arraigned, at which time he was offered a three-day jail sentence with credit for jail-time served in exchange for a guilty plea. Champion entered a conditional guilty plea, and the district court entered judgment accordingly. Champion appealed the judgment to circuit court.
On appeal, Champion challenged the constitutionality of Lexington’s ordinance, raising two primary arguments. First, he questioned the legitimacy of Ordinance 14-5 as a valid exercise of local governmental power to criminalize particular behavior.
II. ANALYSIS.
A. First Amendment Standards of Review.
The First Amendment to the United States Constitution boldly declares that “Congress shall make no Law ... abridging the freedom of speech.”
Panhandling itself can simplistically be defined as “any in-person solicitation for immediate charitable giving of either cash or goods for the purpose of benefiting the person doing the solicitation.”
The Supreme Court has yet to extend fully this protection to individuals soliciting for their own well-being. But the Second Circuit Court of Appeals did embrace this rule in Loper v. New York City
Critical to any First Amendment analysis is, as a threshold matter, the type of forum implicated in any governmental speech regulation. Public streets and intersections are paradigmatic examples of traditional public forums—areas that serve an important function for “purposes of assembly, communicating thoughts between citizens, and discussing public questions.”
In Reed v. Town of Gilbert, the United States Supreme Court invalidated an Arizona sign code as an unconstitutional content-based regulation of free speech,
The circuit court affirmed Champion’s conviction because it determined Lexington’s Ordinance 14-5 is a content-neutral regulation of speech, thereby requiring a less-exacting standard of scrutiny to remain constitutionally viable. But this opinion was issued before the Supreme Court’s decision in Reed. So we must now review Ordinance 14-5’s constitutionality in light of this most recent addition to First Amendment jurisprudence.
B. Ordinance 14-5 is a Content-Based Regulation of Speech.
As the initial prong in his constitutional challenge, Champion argues that Ordinance 14-5 is a content-based regulation of speech, which would accordingly trigger strict-scrutiny review. The circuit court disagreed and declared the ordinance content-neutral. But Lexington now concedes, in light of Reed, that its ordinance distinguishes speech based on the underlying message. Because of evolving Supreme Court precedent, we agree that Ordinance 14-5 is content-based.
The Supreme Court’s ruling in Reed can be seen as a paradigm shift in the interpretation of public-speech legislation. To be sure, long before Reed, the Court took strong positions in determining whether a statute engaged in content-based regulation. In Police Department of Chicago v. Mosley, the Court reviewed a picketing statute that barred picketing within 150 feet of schools during the school day, notably excluding labor disputes from its strictures.
But over time, court precedent chiseled away at this bright-line understanding of regulation on the basis of content—particularly in cases involving sexually explicit entertainment. The Supreme Court upheld regulations specific to adult theaters by determining that such laws may be “justified without reference to the content of the regulated speech,” because of the “secondary effects” of conduct surrounding those enterprises.
The Reed Court rejected this approach. The government’s purpose is only relevant to this analysis after concluding that the regulation is facially content-neutral.
As noted earlier, panhandling typically refers to immediate in-person charitable giving.
On its face, Ordinance 14-5 singles out speech for criminal liability based solely on its particularized message. Only citizens seeking financial assistance on public streets and intersections face prosecution. For example, someone standing at a prominent Lexington intersection displaying a sign that reads “Jesus loves you,” or one that says “Not my President” has no fear of criminal liability under the ordinance. But another person displaying a sign on public streets reading “Homeless please help” may be convicted of a misdemeanor. The only thing distinguishing these two people is the content of their messages. Thus, to enforce Ordinance 14-5, law en
The true beauty of the First Amendment is that it treats both Cicero and the vagabond as equals without prejudice to their message. Freedom of speech does not exist for us to talk about the weather; to accept this liberty is to welcome controversy and to embrace discomfort. Just as the government may not ban-Lolita because it is Lolita, it likewise may not criminalize the beggar for begging—no matter how noble or altruistic its intentions may be.
There is rarely a constitutionally valid reason for the government to filter the topics for public discourse. We cannot accept different rules and different procedures for different forms of protected speech without at least subconsciously injecting our own subjective values and without implicitly engaging in censorship. So it follows that any law regulating speech by its content—as we have just declared Ordinance 14-5 does—is only law if it satisfies our most engaging form of scrutiny. And we now turn our attention to address that question.
C. Application of Strict Scrutiny.
Now that we have conclusively determined that Ordinance 14-5 regulates particular speech on the basis of its content, Lexington bears the burden of establishing that this limitation survives strict scrutiny.
As a presumptively invalid statute, Lexington now bears the burden of showing that its content-based regulation of speech exists to safeguard individual rights rather than to inhibit them. And this is an admittedly challenging burden to meet. But when a lawmaking body threatens an individual’s rudimentary fundamental right, it should do so only out of absolute necessity and by the least-restrictive means possible. If government wishes to restrain an individual right in effort to remedy a societal problem, we do not presume the problem exists; the governing body must prove and justify that the behavior in question actually harms society.
Lexington’s primary justification for Ordinance 14-5—a reason it declares satisfies even strict scrutiny—is the city’s desire to ensure public safety and to ensure the free flow of traffic. And no doubt, this is something the Supreme Court has recognized as a legitimate governmental goal in regulating activities in its streets and sidewalks.
But the problem with Lexington’s rationale is the total lack of evidence that prohibiting panhandling furthers this governmental interest. We have been offered no evidence of traffic delays or auto accidents resulting from pedestrians—panhandlers in particular—approaching stopped motorists. Just because public safety is recognized as a compelling government interest does not empower the government to enact any measure or target particularized behavior in its name without justification. And invocation of that interest in this instance is disingenuous at best. Adding insult to injury, this was not the particular behavior for which Champion was cited; law enforcement cited Champion for holding a sign at an intersection, not approaching stopped vehicles. Without additional information, we have no proof he even targeted stopped motorists with this speech.
Even if we accept Lexington’s assertion that Ordinance 14-5 furthers its compelling interest to promote public safety and free traffic flow, this law is hopelessly under and overinclusive. The ordinance is under-inclusive because Lexington has not bothered to explain why panhandling poses a greater risk to public safety than other forms of speech. We have been given no reason to believe that begging presents substantially greater risks than similar conduct, such as street performances or simply asking for directions. And the ordinance is overinclusive because it chills speech otherwise unrelated to interfering with traffic. A person targeting only pedestrians for in-person donations is equally culpable under this ordinance that is allegedly designed for traffic safety. The law does not justify why signage seeking help is inherently more dangerous that one directing motorists to a nearby car-wash fundraiser.
This is not to say we categorically reject the city’s interest in ensuring safe and efficient roadways; there is just simply no indication only one form of expression has actually served to make city streets less safe. And there remain a number of content-neutral ways the city could achieve the same goals without unjustifiably abridging individual rights to free speech. For instance, Lexington could prohibit all individuals from approaching stopped motorists—this more directly targets the behavior the city seeks to alleviate and does so without regard to why an individual steps into traffic. Laws that promote public safety reflect a fundamental government purpose when precisely enacted and not invoked as pretext to achieve other social interests.
So under a close and careful review of First Amendment precedent and principles, we must unavoidably hold that Lexington Ordinance 14-5 is an unconstitutional regulation of speech.
III. CONCLUSION.
For the foregoing reasons, we reverse the circuit court’s judgment and hold that Lexington’s Ordinance 14-5 is unconstitutional. Accordingly, the case is remanded to the Fayette District Court with direction that the charge against Champion be dismissed.
All sitting.
. See LFUCG Ordinance 14-5.
. Because we hold that the ordinance is unconstitutional under the First Amendment, it does not matter whether the city had the power to enact it or not. So we will not address that issue in today’s opinion.
. U.S. Const. amend. I.
. Agency for Intern. Development v. Alliance for Open Society, Intern., Inc., — U.S. —, 133 S.Ct. 2321, 2327, 186 L.Ed.2d 398 (2013) (quoting Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)).
. Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).
. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
. See, e.g., Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). Notably, the Kentucky Constitution also protects both "the right of freely communicating their thoughts and opinions” and "the right of acquiring and protecting property.” Ky. Const. § 1. Because Champion only argues against Ordinance 14-5 under the federal Constitution, we need not determine today whether Section l’s free-speech provision affords a greater protection independent of the First Amendment.
. Anthony D. Lauriello, Panhandling Regulation After Reed v. Town of Gilbert, 116 Colum. L. Rev. 1105, 1107 (2016).
. 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980).
. Id. at 632, 100 S.Ct. 826.
. 999 F.2d 699 (2nd Cir. 1993).
. Id. at 704.
. See Speet v. Schuette, 726 F.3d 867 (6th Cir. 2013) (invalidating Michigan statute against begging because "begging is a form of solicitation that the First Amendment protects.”) Id. at 875. For a survey of other circuit courts of appeal, see Reynolds v. Middleton, 779 F.3d 222, 225 (4th Cir. 2015); Gresham v. Peterson, 225 F.3d 899, 904 (7th Cir. 2000); ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006); and Smith v. City of Fort Lauderdale, 177 F.3d 954, 955-56 (11th Cir. 1999).
It should also be noted that each of these decisions predates the Supreme Count’s ruling in Reed v. Town of Gilbert, — U.S. —, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). The Reed decision may have further insulated this position within the lower federal courts because of its impact on a reviewing court’s determination of whether a regulation of speech is content-based. See infra. This has already set off a chain reaction of lower federal courts invalidating state or local panhandling laws. See Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015) (Easterbrook, J.) (reversing earlier decision relating to panhandling regulation following Reed) and Thayer v. City of Worcester, — U.S. —, 135 S.Ct. 2887, 192 L.Ed.2d 918 (2015) (remanding for consideration in light of Reed ).
. See Lauriello, supra note 8 at 1121 (academia has suggested panhandling has First Amendment value for raising awareness to societal ills such as homelessness and poverty, it may inform voter choices in the ballot box, it forces passersby to evaluate their own thoughts on giving alms to the needy, and it allows beggars the self-realization to express their values and share their plight with society in general.) See also Helen Hershkoff & Adam S. Cohen, Commentary, Begging to Differ: The First Amendment and the Right to Beg, 104 Harv. L. Rev. 896, 898 (1991).
. Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
. See Snyder v. Phelps, 562 U.S. 443, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (quoting United States v. Grace, 461 U.S. 171, 180, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983)).
. Reed v. Town of Gilbert, — U.S. —, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015).
. Id. at 2227.
. Id.
. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).
. 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
. Id. at 96, 92 S.Ct. 2286. See also Erznoznik v. Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (the government has no power to "selectively ... shield the public from some kinds of speech on the ground that they are more offensive than others.").
. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).
. 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) The Court elaborated, saying “The government’s purpose is the controlling consideration, A regulation that serves purposes unrelated to the content of the expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Id.
. Reed, 135 S.Ct. at 2228.
. Id. (emphasis added).
. Id.
. Indeed, "Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.” Id. at 2229. See also Hill v. Colorado, 530 U.S. 703, 743, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (Scalia, J„ dissenting) (“The vice of content-based legislation ... is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.”).
. See Lauriello, supra note 8.
. See Reed, 135 S.Ct. at 2231.
. See id.
. See McCullen v. Coakley, — U.S. —, 134 S.Ct. 2518, 2535, 189 L.Ed.2d 502 (2014) (recognizing "the legitimacy of the government’s interests in ensuring public safety and order promoting the free flow of traffic on streets and sidewalks ...”).