This column by ACRU Senior Fellow Robert Knight was published August 31, 2012 on the American Thinker website.
Visitors to downtown Colorado Springs are besieged by panhandlers, according to city officials. So they drafted an anti-solicitation law that prohibits begging in a designated area.
Quicker than you can say "Got a quarter?," the American Civil Liberties Union issued a warning that the proposal may violate the First Amendment.
"I would advise them not to pass this severely flawed ordinance," said Mark Silverstein, legal director of the ACLU of Colorado, according to the Colorado Springs Gazette. Unspoken is the threat of an ACLU lawsuit, an uncannily accurate indicator that the city is on to something good.
City officials don't seem worried by the ACLU's reaction, and they note that the proposed law is based on a Fort Lauderdale anti-begging statute upheld years ago by federal courts. Colorado Springs' proposed statute will get a first reading and public hearing on Sept. 11.
"What the downtown 'no solicitation zone' is seeking to do is not to prohibit content of speech but to prohibit conduct, which is to approach a person to solicit," said Colorado Springs City Attorney Chris Melcher.
Although the city appears to be on solid legal ground, Mr. Melcher said officials will meet with ACLU representatives to iron out a compromise, if possible. If the ACLU begs to differ too much (sorry), the city will go ahead anyway with its plan, he said. Also, city officials may expand the no-begging zone to take in a park, which may complicate things because parks have long been considered free speech zones. Try walking across a park in Washington, D.C., for instance, without being accosted by a panhandler or a political, uh, enthusiast.
In James Dale Smith v. City of Fort Lauderdale (June 2, 1999), the 11th U.S. Circuit Court of Appeals affirmed a District Court's ruling in favor of the Florida city's ordinance. The 11th Circuit opinion acknowledged that, "[l]ike other charitable solicitation, begging is speech entitled to First Amendment protection."
But, the court elaborated, "[e]ven in a public forum, the government may 'enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.'"
Fort Lauderdale's ordinance, the Court said, is "content-neutral and leaves open ample alternative channels of communication. Plaintiffs also expressly concede that the City's interest in providing a safe, pleasant environment and eliminating nuisance activity on the beach is 'a significant government interest.'"
One might think that Colorado Springs, also a tourist destination, would have a similar interest in encouraging downtown foot traffic, even if it's not near a beach and is instead in the shadow of Pike's Peak (14,115 feet).
For that matter, so would Washington, D.C., which attracts an estimated 25 million visitors annually to the national mall area and nearby monuments, and has an army of homeless people year round.
The challenge for a free but compassionate society is to balance the need for a safe, crime-free environment for all against the truly tragic circumstances of many of the down and out and their freedom to depend on the kindness of strangers.
Colorado Springs, like Fort Lauderdale and other magnets for transient populations, has a network of shelters and services for the homeless, and appears to be trying to thread that needle despite the ACLU's implied threat.