Over the past decade, there has been a dramatic increase in the number of areas where asking for help is restricted or banned. Whether called begging, panhandling, or solicitation, cities were spurred on by concerns of business owners and residents to ban or highly restrict this type of speech from occurring in public areas. Yet laws such as these have been repeatedly struck down by courts in recent months, fueled in large part by the Supreme Court’s decision in Reed v. City of Gilbert.
In this essay I argue that, at least in the context of anti-panhandling legislation, Reed was a needed answer to local governments passing overly broad restrictions motivated by a desire to drive an unpopular type of speech from the city square. To illustrate my argument, I use anti-panhandling ordinances from three local jurisdictions—the City Akron, the City of Fairlawn, and Summit County—as case studies in content-neutrality before and after Reed.
This essay relies on two primary arguments. First, I defend Reed’s clarification of the test for content-neutrality as a needed measure to prevent censorial purpose from being masked by local government in pretextual reasons. To develop this argument, I highlight the mischief caused in Reed by drawing on public records, newspaper articles, and other contemporary evidence of legislative intent to argue that anti-panhandling ordinances have become an exercise in concocting pretextual justifications that bear little resemblance to the true motives behind the restrictions.
Second, I argue that the restrictions found in anti-panhandling ordinances locally and nationally are poorly tailored to satisfy any weighty, non-censorial government objective, and therefore are an unconstitutional abridgement of the right to ask for help. In fact, every single federal court in recent year (including several decisions issued over the past few months) has sided with free speech challengers to anti-panhandling laws. I tie both arguments together as a way of illustrating the problems with the City of Akron’s anti-panhandling law, which I am currently in the process of challenging.
Mead, Joseph, "Why We Need Reed: Unmasking Pretext in Anti-Panhandling Legislation" (2016). Law Faculty Articles and Essays. 859.