Wednesday, March 12, 2014
BY GILLIAN GRAHAM
Portland Press Herald
A lawsuit against Portland's new ban on panhandling on traffic medians has put the city on the front line of a legal debate about constitutional free-speech rights that is spreading around the country as a growing number of communities restrict when and where people can ask for money.
Many bans similar to Portland's have yet to be challenged in court, and the local case could set a precedent for other Maine communities. In Michigan, a federal court struck down a more sweeping state law that prohibited begging in public places, ruling that it violated free-speech rights. In Massachusetts, a pending lawsuit challenges a more narrow Worcester law that limits when and where people can panhandle.
Portland's new rules, which took effect in August, prohibit panhandling, loitering and other activities on street medians.
City officials and supporters of the ordinance say the limit is needed to protect the safety of the growing number of pandhandlers, as well as motorists. Mayor Michael Brennan defended the ordinance this week, saying it led to a decline in the number of people standing in traffic medians, and so far it hasn't required city police to issue citations or arrest anyone.
Along with free-speech complaints, opponents argue that the limit unfairly targets people who are poor or homeless as a way to keep poverty out of sight.
Three Portland residents -- a woman who panhandles and two men who engage in political demonstrations -- filed a motion Tuesday in U.S. District Court seeking to prevent the city from enforcing the ordinance. In the motion, Zachary Heiden, an attorney for the American Civil Liberties Union of Maine, and Kevin Martin, an attorney with Boston-based Goodwin Procter, argue that the ban is unconstitutional because it hinders free speech, both for panhandlers and anyone who might use those public spaces for political statements or similar activities.
The case's outcome could affect other Maine communities directly.
Lewiston also recently approved a ban on standing in median strips. Despite the Portland lawsuit, the Biddeford City Council is expected to move forward with a plan to prohibit any activity -- including panhandling -- in traffic medians.
"We're not abridging free speech. You can stand on the sidewalk; you can stand in areas that are safe and say whatever you want to say," City Manager John Bubier said Wednesday. "What we're saying, and what Portland has said, is there are places that are patently unsafe to stay."
The Biddeford council will take a final vote on the ban on Oct. 1. As in Portland, Biddeford's proposal follows reports of an influx of panhandlers who stand in the city's busiest intersections, according to city officials.
Maine communities are not alone in looking at panhandling bans.
The ACLU, on behalf of three residents, is suing the city of Worcester, Mass., claiming its laws violate the right to solicit donations peacefully in public and engage in political speech. The city's anti-begging laws prohibit people from holding signs asking for help during certain hours and in certain places and make it illegal to stand on traffic islands.
In 2012, a federal judge ruled that a Michigan state law banning begging in public places violated First Amendment protections of free speech and the 14th Amendment's equal-protection clause. The civil lawsuit was brought by two men who were arrested for holding signs asking for help and spare change.
The ruling in Michigan is not considered a direct threat to Portland's ordinance because that state's laws were much broader and specifically targeted people asking for money.
"We really are seeing a trend of legislation of this nature in communities across the country," said Jeremy Rosen, policy director for the Washington D.C.-based National Law Center on Homelessness and Poverty.
A 2011 study of 188 cities by the National Law Center on Homelessness and Poverty showed a 7 percent increase since 2009 in prohibitions on begging or panhandling, a 7 percent increase in bans on camping in particular places and a 10 percent increase in prohibitions on loitering in particular public places.
"In general, the one reason the criminal justice approach seems to be gaining traction is because communities are frustrated as the economic crisis continues," Rosen said. "There is less federal, state and local money available for solutions, like providing housing and health care. They feel compelled to respond with a criminal justice approach."
Alan Casavant, Biddeford's mayor, disputes what he calls stereotyping of such local ordinances. The primary concern in Biddeford is not the presence of panhandlers, he said, but any activity in medians that could cause safety problems for pedestrians or motorists.
"The majority of the council looked at this not as a rights issue but a safety issue," he said. "People are concerned about abrupt stopping to give money. Route 111 (which has medians) is a nightmare to begin with."
Casavant said he understands there is a "very fine line" between banning panhandling specifically and addressing larger safety concerns. Biddeford's ordinance, like Portland's, would prohibit anyone from standing in the median, including demonstrators or people raising money for nonprofits.
"They'll still have the right to panhandle on sidewalks," Casavant said.
Rachel Healy, spokeswoman for the ACLU of Maine, said the organization believes that "any ban as broad as the one in Portland poses constitutional problems." However, the ACLU isn't likely to challenge similar ordinances in other Maine communities immediately.
"I think at this point we'll start with Portland because it's about legal precedent," Healy said. "Our hope is by establishing that the Portland ordinance is overbroad that Lewiston, Biddeford and other towns considering such a policy will take note and adjust accordingly."
Alison Prior is one of the Portland plaintiffs and, before the ordinance took effect, used to stand in a Portland street median with a sign asking for money. Prior, who is described as homeless in the lawsuit, did not respond to a request to be interviewed Wednesday.
During an interview in May, before the ordinance passed, Prior said she started begging after a string of bad luck and earned as much as $20 to $25 a day by asking for cash while standing on the median at Preble Street and Marginal Way.
"A stick of deodorant -- that's four people who are nice enough to give me dollar," she said.