July 24, 2015
Ken Strobeck
Executive Director
League of Arizona Cities and Towns
1820 West Washington Street, Suite 200
Phoenix, Arizona 85007
Re:
Panhandling (Aggressive Solicitation) Model Ordinance
Dear Ken:
When we were Interim General Counsel for the League of Arizona Cities and Towns, we
prepared a model ordinance regulating certain behavior of panhandlers.
Recently, there was an interesting development out of the United States Supreme Court
that caught our attention, since it addressed a similar ordinance. In Thayer v. City of Worcester,
755 F.3d 60 (1st Cir. 2014), the First Circuit Court of Appeals had upheld a local aggressive
solicitation ordinance that is similar to the model ordinance. On June 29, 2015, the United States
Supreme Court remanded the case back to the First Circuit for further consideration in light of
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). In Reed, the Supreme Court invalidated certain
Town of Gilbert, Arizona sign regulations based on First Amendment concerns. That decision
impacts sign regulations all over the country, and this subsequent case therefore concerned us.
Reed addresses the regulation of signs. The Supreme Court held that sign codes that
require the government to read a sign or determine its subject matter in order to know what
regulations apply are content-based and subject to strict scrutiny, which means in most cases the
regulation will not be valid.1 Reed did not, however, address the public safety issues that
aggressive solicitation ordinances address. It is unclear how Reed would apply in the context of
Thayer or what the First Circuit will consider on remand. Our opinion remains unchanged that
the model aggressive solicitation ordinance contains reasonable time, place, and manner
restrictions to protect public safety. We will, however, monitor the First Circuit decision in
Thayer and advise of any developments in the law.
A full discussion follows.
1
To pass the strict scrutiny test, the government must have a compelling governmental interest and the regulation
must be narrowly tailored to achieve that interest. Reed, 135 S. Ct. at 2231.
Ken Strobeck,Executive Director
League of Arizona Cities and Towns
July 24, 2015
Page 2
The City of Worcester (“City”) passed two ordinances. One prohibited aggressive
begging, soliciting, and panhandling. The other was aimed at protecting pedestrian safety. It
barred walking or standing in a traffic island after receiving a warning from a police officer (with
limited exceptions for crossing the roadway at an intersection or crosswalk and entering or
exiting a vehicle for lawful purpose). The aggressive solicitation ordinance is similar to the
model ordinance.
The City defines aggressive solicitation as obviously threatening behavior as by (1)
soliciting in a manner likely to cause a reasonable person to fear immediate bodily harm; (2)
using violent or threatening language; or (3) blocking a person’s way. It also provided a range of
potentially coercive behaviors which were prohibited such as (a) soliciting from someone
waiting in line, (b) soliciting after dark;2 (c) continuing to solicit from a person after the receipt
of a negative response; and (d) soliciting anyone within 20 feet of an entrance to a bank, ATM,
public transportation stop, pay phone theater, or any outdoor commercial seating area (like a
sidewalk café).
Both ordinances were challenged under the First Amendment and the Due Process and
Equal Protection Clauses of the Fourteenth Amendment. The First Amendment claim was
presented as a facial challenge based on substantial overbreadth and an as-applied vagueness
challenge. There was no dispute that the speech and physical activity performed to deliver the
messages occur in public forums (e.g., sidewalks in the City). Accordingly, the first question the
court addressed was whether the regulations are based on the content of the speech. “If yes, the
standard of scrutiny is strict: the regulation ‘must be narrowly tailored to promote a compelling
Government interest,’ such that no ‘no less restrictive alternative would serve the Government’s
purpose.’” Thayer, 755 F.3d at 67 (quoting United States v. Playboy Entm’t Grp., 529 U.S. 803,
813 (2000). “If no, that standard is less demanding: the government ‘may impose reasonable
restrictions on the time, place, or manner of protected speech,’ so long as ‘they are narrowly
tailored to serve a significant governmental interest’ and ‘leave open ample channels for
communication of the information.’” Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989). The court explained, “Under this more lenient ‘intermediate scrutiny,’ a law need
not be the ‘least restrictive’ means of achieving the government’s interest, so long as the interest
‘would be achieved less effectively absent the regulation’ and the law does not ‘burden
substantially more speech than is necessary to further the government’s legitimate interests.’” Id.
These tests are not changed by Reed. However, it is likely that the Supreme Court
remanded Thayer due to the content-neutral test employed by the First Circuit. The First Circuit
explained that, “[i]n determining whether a particular regulation is content-neutral, the principal
enquiry is ‘whether the government has adopted a regulation of speech because of disagreement
with the message it conveys.’” Id. (quoting Ward, 491 U.S. at 791). The Supreme Court cited
this test in Reed, acknowledging that these types of regulations are indeed subject to strict
2
The League did not include this language in its model ordinance. There is an Arizona case striking down this type
of broad ban against night-time solicitation. State v. Boehler, 262 P. 3d 637, 640-41 (App. 2011). The parties in
Thayer agreed to an injunction against enforcement of this provision so the issue was not litigated.
File: 1974-000-0000-0000; Desc: StrobeckK Panhandlers- Thayer Case 7-24-15; Doc#: 234330v1
Ken Strobeck,Executive Director
League of Arizona Cities and Towns
July 24, 2015
Page 3
scrutiny. However, the Supreme Court went further. The Court stated that in addition to this
category of content-based laws, regulations that cannot be “justified without reference to the
content of the speech” are content-based. Reed, 135 S. Ct. at 2227. “Some facial distinctions
based on a message are obvious, defining regulated speech by particular subject matter, and
others are more subtle, defining regulated speech by its function or purpose. Both are
distinctions drawn based on the message a speaker conveys, and therefore, are subject to strict
scrutiny.” Id.
In the City of Worcester’s case, the First Circuit found that there was good reason to find
that the regulations were not intended to suppress speech but regulate their delivery. Thayer, 755
F.3d at 68. “A person can reasonably feel intimidated or coerced by persistent solicitation after a
refusal, and can reasonably feel trapped when sitting in a sidewalk café or standing in line
waiting for some service of admittance. And even the stout-hearted can reasonably fear assault
when requests for money are made near an ATM where cash may have been obtained and so
provide temptation to snatch a wallet or purse. These are not imaginary concerns that smell of
pretext.” Id. at 69. The First Circuit found that “the most obvious manifestation of contentbasis, discrimination turning on a speaker’s viewpoint, is of course absent here.” Id.
The focus on viewpoint discrimination must be broadened after Reed. The Supreme
Court clarified that the fact that there is no purpose to suppress speech is insufficient for
determining whether a regulation is content-based. Accordingly, we expect that the First Circuit
will be asked to determine, consistent with Reed, if the aggressive solicitation ordinance in
Worcester is content-based and subject to strict scrutiny. We do not know how this case will be
resolved or affect other ordinances across the country. However, our opinion remains unchanged
that these types of aggressive solicitation ordinances are not content-based.
As the First Circuit recognized, the regulation is not focused on the type of speech or
message, but delivery and location. For example, speech that is delivered near ATMs, within a
few feet of someone who has already provided a negative response, and blocking someone’s
way, is aggressive. The most susceptible parts of the aggressive solicitation ordinances are
probably those that focus on “violent or threatening language” which may arguably focus more
on the “content of the speech,” as in Reed. However, we think that these provisions are aimed at
behaviors associated with speech more than the speech itself (such as tone and volume that make
one fear “imminent bodily harm”). We do not think these types of regulations are content-based
and subject to strict scrutiny.
On remand, the First Circuit will likely consider this question. If the First Circuit
concludes again that the ordinance is not content-based, the regulations should survive under the
intermediate standard of review. The First Circuit provided substantial analysis of how the
aggressive solicitation ordinance is narrowly tailored to serve a significant government interest
and leaves open ample alternative channels of communication. The ordinance is a reasonable
time, place and manner restriction. See Thayer, 755 F.3d at 71-75. Similarly, the dismissal of
the due process and equal protection challenges should not be affected by Reed. See id. at 75-78.
File: 1974-000-0000-0000; Desc: StrobeckK Panhandlers- Thayer Case 7-24-15; Doc#: 234330v1
Ken Strobeck,Executive Director
League of Arizona Cities and Towns
July 24, 2015
Page 4
The only real issue should be whether these types of aggressive solicitation (or panhandling in
the medium) ordinances are subject to strict scrutiny by making distinctions on types of speech.
CONCLUSION:
The decision in Thayer supports the model ordinance. However, the Supreme Court
remanded the case for further consideration in light of Reed. As explained above, we are
uncertain as to what the appeals court will consider on remand. We do not think, however, that
the model aggressive solicitation ordinance is content-based or subject to strict scrutiny. We
continue to think the ordinance is a reasonable time, place, and manner regulation.
We will continue to monitor this case.
Very truly yours,
Susan D. Goodwin
For the Firm
SDG/TS
Enclosure:
cc:
Thayer v. Worcester, 755 F.3d 60 (2014)
Thayer v. Worcester, __ S. Ct. __ (2015) (ordering remand)
Christina Werther, General Counsel
File No. 1974
File: 1974-000-0000-0000; Desc: StrobeckK Panhandlers- Thayer Case 7-24-15; Doc#: 234330v1