Cities can’t bar people from simply asking passers-by for money at night, the Arizona Court of Appeals has ruled.
In a unanimous decision, the judges struck down a Phoenix ordinance that makes it illegal to verbally approach someone after dark for the purpose of soliciting money.
The court specifically rejected arguments by city attorneys that the 2003 law is designed to “shield citizens from the fear, intimidation, abusive language, or crime that sometimes accompany solicitation.” The city also said that dangers of panhandling are “heightened at night, when darkness provides a cover for harassing or criminal conduct.”
But Judge Diane Johnsen, writing for the court, pointed out there already is a valid city ordinance that bans “aggressive” solicitation. And that includes not only intentionally touching someone but also approaching or following someone “in a manner that is intended or is likely to cause” reasonable fear.
Johnsen said where this law goes wrong, legally speaking, is that it bans any verbal panhandling, regardless of how the request was made.
“It would prohibit both a cheery shout by a Salvation Army volunteer asking for holiday change and a quiet offer of a box of Girl Scout cookies by a shy pre-teen if either were uttered on a street corner after dark,” the judge wrote.
Conversely, Johnsen noted, there are things that remain legal.
“It permits written requests for in-hand donations after dark,” she pointed out. “Under the ordinance, one may ask for spare change by silently holding a sign seeking donations.”
And the judge said that oral requests for funds remain legal during the day.
Separately, Johnsen said the law is unconstitutional because it improperly criminalizes one kind of speech but not all types.
“For example, a person standing on a street corner at 8 p.m. asking for cash contributions to a candidate’s campaign could be cited for violating the ordinance, while one urging passersby to come to a rally to hear the same candidate speak would avoid citation,” she wrote.
“A person violates the ordinance by asking passersby after dark to donate change to a church fund for the poor,” Johnsen continued. “On the other hand, the ordinance does not apply to a sidewalk proselytizer — as long as he refrains from orally requesting donations.”
Johnsen said ordinances restricting public conduct must be “narrowly tailored” to achieve the legitimate governmental interest without burdening more speech than necessary to advance that interest. She said the ordinance against aggressive solicitation did that; the 2003 changes went too far because they banned all after-dark approaches.
And Johnson said that, even if individuals are concerned about being approached after dark, that does not justify such a broad ban.
“Our constitution does not permit government to restrict speech in a public forum merely because the speech may make listeners uncomfortable,” she wrote.