This week, a federal district court in Louisiana granted a motion for summary judgment invalidating the City of Slidell’s law requiring panhandlers to register and wear identification before soliciting donations.  In a lengthy but thorough order, the court found the city’s law, which applied only to individuals seeking to solicit donations of money or services, content based and unconstitutional, and issued a permanent injunction against enforcement of the law.

The backstory of Slidell’s “panhandler ID” law starts in 2015.  Since then, the city received 70 complaints relating to panhandling and solicitation, but only 14 were “connected to an identifiable individual.”  Because of the difficulty of tracking down panhandlers who were violating city laws, the city council passed an ordinance containing certain registration and identification requirements.  Specifically, the ordinance required individuals to complete an application at least 48 hours prior to panhandling.  To complete the application, a person was to physically appear at the police department between 9:00 and 5:00 on a weekday, fill out the written application (which required listing an address, telephone number, email, and other identifying information), and show a photo identification.  After a group of indigent individuals sued the city over the law, the city removed the 48-hour waiting period and required issuance of a permit for up to 72 hours of panhandling following filing of a complete application.  The 72-hour permit can be extended for up to a year on certain conditions.

The ordinance also regulated the form of the panhandling.  The permit was required to be kept on an individual’s chest while panhandling, and was to be shown to a police officer upon request.  Permits could be invalidated for a violation of the city’s begging and panhandling laws.

After determining that the case was justiciable, the court went on to analyze the panhandling law as an overbreadth challenge to the application of the law in a traditional public forum.  The city unsuccessfully argued that the speech in question—individuals’ solicitation of charitable donations—was not protected by the First Amendment.  The court’s rejection of that argument is consistent with virtually all other courts’ findings on that question.

The court then asked whether the law in question was content neutral.  Relying on Reed v. Town of Gilbert and other panhandling cases that have followed Reed, the law was found content based because it imposed a differential permitting requirement on speakers based on the message of their speech.  The city creatively presented three arguments as to why its panhandling law should be reviewed under intermediate scrutiny:  (1) the law was merely a regulation, not a prohibition on panhandling; (2) the law addresses harmful secondary effects of panhandling; and (3) Supreme Court precedent allows the imposition of reasonable regulations on solicitation.  But the court rejected all three of these arguments, finding that the regulation/prohibition distinction does not bear on the content neutrality analysis, that the secondary effects doctrine could not save a facially content-based law, and that the Supreme Court’s prior cases on solicitation did not uphold content based laws.  Applying strict scrutiny, the court found that Slidell had failed to provide evidence of a public safety problem so as to demonstrate a compelling governmental interest, and that the city had not chosen the least restrictive means to address any public safety problem.  The court provided several examples of less restrictive alternatives, such as stepped-up enforcement of criminal laws or adding cameras to streets in order to identify panhandlers.

The court further agreed with the plaintiffs that the law was substantially overbroad.  Under the First Amendment, a law may be found overbroad whether a substantial number of its applications are unconstitutional in comparison to the legitimate sweep of the law.  The court determined that, even if the city could constitutionally require a permit for individuals to panhandle in some locations, the law has a sufficient number of unconstitutional applications so as to render it unconstitutional.

This case is yet another example of the significant challenge facing local governments that seek to regulate in the area of panhandling and solicitation.  Slidell took a particularly offensive approach to the issue by requiring a permit of panhandlers.  Courts have long been skeptical of permitting requirements for individuals who wish to speak in a public forum.  While the court in this case did not analyze the matter under the prior restraint doctrine, which otherwise looks at the constitutionality of a permitting requirement, the court’s findings demonstrate the serious constitutional questions that are raised when a local government requires a permit for speech based on its subject matter.

Blitch v. City of Slidell, ___ F. Supp. 3d ___, 2017 WL 2634342 (E.D. La. Jun. 19, 2017).