I recently wrote about speech law as the Oregon courts apply it. <https://danielreitman.wordpress.com/2016/07/15/the-right-to-troll-the-net/>. Unlike in Oregon, Washington courts interpret the speech clause in the state constitution identically to the First Amendment. A recent case, City of Lakewood v. Willis, No. 91827-9 (Wash., July 21, 2016), <http://www.courts.wa.gov/opinions/pdf/918279.pdf>, confirms that under the federal standards as applied in Washington, people retain the right to panhandle at freeway exits and similar locations.
A city ordinance prohibits begging in certain locations, including “at” ramps and intersections from state highways to city streets and intersections on major arterials. Mr. Willis, who has a disability, entered a crosswalk across a freeway exit ramp while carrying a sign asking for money. He was cited for begging in a restricted area, and he challenged the constitutionality of the ordinance.
As noted by the Washington Supreme Court, asking for money, including panhandling, is considered protected speech generally. It may however, be regulated as to the time, place, or manner of speech. The validity of a time, place or manner restriction depends to a significant extent on whether the location is a public or private forum.
Public forums include streets, sidewalks, parks, or other areas that have traditionally been used for public debate. Note, however, that the courts do not extend the scope of public forums to malls, airports, or other areas that did not exist at the time the Constitution was adopted. Restrictions in a public forum must be neutral as to its content. It must also be narrowly tailored to met its purpose and allow a reasonable alternative. On the other hand, in other forums, restrictions on time, place, or manner, need only be reasonable in light of the purpose of the forum. They must, however, remain content neutral.
For procedural reasons, the Washington Supreme Court limited its review of Mr. Willis’ challenge to the general constitutionality of the ordinance instead of the constitutionality of its application to his case. The only questions addressed by the court were whether the ordinance applied to a large number of public forums and whether they were neutral as to content.
As the court noted, the ordinance uses the word “at,” and not “in,” to describe the areas covered by the ordinance. Therefore, the sidewalks near freeway ramps and intersections were covered. The city has sidewalks at many ramps and intersections, and very few of them are designed to serve private areas. Although the city raised a few cases to argue that freeways were not public forums, the court noted that they did not refer to sidewalks at intersections. Other courts had ruled that rest areas and their walkways were not public forums, primarily because they could not be reached by pedestrians from outside the freeway. The other case cited by the city involved adopt-a-highway programs, which had nothing to do with intersections. The court concluded that the ordinance affected a wide range of public forums.
The next question as whether the ordinance regulated speech by content. For a general challenge, the court looked at whether, by its terms, the ordinance regulated speech based on the function or purpose of the speech. Because the ordinance restricted only begging and not speech in general, the court ruled that it did. Based on this conclusion, it ruled that the ordinance was unconstitutional. The court relied in part on a case from the Supreme Court last year, which involved restrictions on outdoor signs with political or other messages or directing the public to an event (Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) , <https://www.supremecourt.gov/opinions/14pdf/13-502_9olb.pdf>), and noted that federal courts in several other states have since then come to the same conclusion with regard to laws against panhandling.
Panhandling at intersections does present a legitimate safety and crime concern. Banning begging at these locations, however, is not an acceptable tactic. One approach that the court signaled would be accepted would be to prohibit solicitation for any purpose. Until cities and counties adopt ordinances of that kind, you can expect to continue to see panhandlers at the exit.