anti-panhandler ordinances ruled unconstitutional: major victory

Tom Boland (
Thu, 28 May 1998 11:37:09 -0700 (PDT)
FWD  05-27-98  The Cincinnati Post



     By Al Andry and Sarah Sturmon, Post staff reporters

A federal magistrate has sided with panhandlers and ruled that two
Cincinnati ordinances are unconstitutional and violate their right to free

Magistrate Jack Sherman Tuesday said the ordinances are overly broad and
restrict conduct protected by the First Amendment.

Begging and panhandling are expressive acts and are protected, the
magistrate said. Sidewalks constitute a traditional public forum.

Sherman noted that his 14-page deci sion does not affect a third ordinance,
which prohibits aggressive panhandling that coerces or intimidates people.

''A big part of the judge's rationale is there is no compelling
governmental interest in these types of law. I tend to think that rationale
is flawed,'' Deputy City Solicitor Robert Johnstone said.

He and City Council Member Phil Heimlich, who sponsored the two ordinances,
said the city likely will appeal Sherman's ruling to the U.S. 6th Circuit
Court of Appeals.

Lawyers for the panhandlers said they will ask the court to approve
attorneys' fees for them. If the fees are approved, the city may have to
pay the lawyers tens of thousands of dollars.

City Council passed the two ordinances in May, 1995, and they were to take
effect July 1, 1995. However, Sherman prohibited enforcement until their
constitutionality could be determined.

The two ordinances restrict where and when panhandlers can ask for money
and ban people from sitting or lying on business-district sidewalks between
7 a.m and 11 p.m. Sherman called the banned activity ''passive.''

Steve Stuhlbarg, who with Scott Greenwood represented the panhandlers,
said, ''We're delighted. We think this is a rigorous and proper application
of the First Amendment principle. These laws were designed to target
peaceful, non-coercive and non-disruptive panhandling.

''These ordinances were targeted at people who are peaceful. The city
doesn't have the power to intervene in what people say on a public
sidewalk,'' he said. ''People have the right to peacefully ask for money.''

''The stated purpose of these laws was to make panhandling disappear,''
Greenwood added.

''The ordinances, in flat and total violation of the First Amendment, ban
an entire type of speech based on its content from the most sacred area for
public speech: the public sidewalk.

''The court recognized that the poor and homeless have the same First
Amendment rights as business people and corporations.''

Heimlich said, ''This decision goes against court decisions in other cities
that have upheld ordinances just like ours. I think this is a case we can
win on appeal.''

He said that Santa Monica, Calif., has a law almost identical to
Cincinnati's and it has been upheld by the federal courts. A similar law in
Seattle has been upheld by state appeals courts.

Sherman said there are five reasons why the two ordinances fail the
constitutionality test:

The city did not have a significant interest in enacting the ordinances.

Even if the city did have a significant interest, the two ordinances are
not tailored to serve that interest.

The ordinances are not content-neutral.

The city's restrictions on speech are unreasonable.

The ordinances do not leave open alternative means for the panhandlers to


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