Washington Supreme Court Finds Begging Ordinance Unconstitutional Under Reed v. Town of Gilbert

If your jurisdiction has an ordinance restricting begging, it’s time for your legal counsel to give it a close review. On July 21, the Washington Supreme Court, in City of Lakewood v. Robert Willis, struck down two sections of a City of Lakewood “begging” ordinance as unconstitutional restrictions on the First Amendment rights of an individual who was at a freeway ramp holding a sign that indicated he had disabilities and needed help.

What was the Court’s Holding in Willis?

The sections of the ordinance at issue in Willis were codified as Lakewood Municipal Code (LMC) 9A.04.020A(1) and (2), and prohibit “begging”:

(1) at on and off ramps leading to and from state intersections from any City roadway or overpass; [or] (2) at intersections of major/principal arterials (or islands on the principal arterials) in the City . . . .

Though trial court testimony indicated that the defendant was approaching cars in the lane of travel, the Washington Supreme Court focused on the fact that there were sidewalks and an intersection at the freeway ramp location and stressed that such locations are traditional public forums, where the First Amendment prohibits the government from imposing restrictions based on the content of someone’s speech. Citing Reed v. Town of Gilbert, the court found LMC 9A.04.020A(1) and (2) to be just that: unconstitutional content-based restrictions on free speech in a traditional public forum.

Reed is a U.S. Supreme Court decision that has been causing consternation among local governments over this past year because the holding limits the authority of local governments to have regulations on speech that are “content based.” Under Reed, a law is impermissibly content based if “’on its face’ [it] . . . define[s] regulated speech by particular subject matter . . . [or] by its function or purpose.”

Applying the Reed test, the Washington Supreme Court found that LMC 9A.04.020A(1) and (2) prohibit solicitation for a particular purpose: “begging,” which is defined by LMC 9A.04.020(E) to mean “asking for money or goods as a charity, whether by words, bodily gestures, signs or other means.” Since LMC 9A.04.020A(1) and (2), on their face, regulate speech based on its purpose (i.e., “begging”), the court found them to be unconstitutional content-based restrictions on free speech in a traditional public forum.

Some Post-Willis Practical Advice for Local Governments

Free speech is a very nuanced issue, therefore the court’s decision in Willis deserves two close readings: once before you review your own local ordinance, and once after. Many of our cities and towns have seen an increase in begging, often near freeway ramps where cars stop or slow due to traffic congestion. Though there are obvious concerns about the flow of traffic and the safety of individuals on nearby sidewalks or road shoulders, police should be briefed on possible alternatives to deal with such situations. For example, in certain circumstances it might be more appropriate to charge an individual with obstructing traffic if they step into the roadway while begging, rather than charging the individual under a “begging” ordinance similar to the one at issue in Willis.

If your jurisdiction does already have such a “begging” ordinance, it may be worth considering whether it’s necessary or wise for the ordinance to impose criminal penalties. Only in rare situations would a judge impose jail time, so it might be simpler if the violation was designated as being a civil infraction (though collection of even a small fine is unlikely). Typically a minor criminal charge such as this would not wind its way up through the courts, but there are groups actively seeking to challenge laws that “criminalize poverty.”

Moreover, if challenged, any law targeting begging (as opposed to solicitation more generally) in a traditional public forum will likely be considered content-based and therefore unconstitutional under Reed. For example, on p. 18 of the Willis decision, the court cites a number of local “anti-panhandling” (or begging) ordinances that have been struck down post-Reed. In order to avoid such a challenge, wording an ordinance properly is the first task, but prudently using discretion regarding where and how to enforce such ordinances is the subsequent, more onerous task for police departments.

Finally, while the defendant in this case was holding a sign clearly showing the content of his “speech,” it’s important to note that the same result could be based on evidence that the defendant spoke the words rather than having them in writing. It is false to assume that the Reed decision only applies to written signs. What is at issue is whether the regulation prohibits expressive conduct, oral or written, based on its content, at a location that is a traditional public forum.

Have a question or comment about this information? Let me know below or contact me directly at jdoherty@mrsc.org.