Questions about whether it is legal in Arkansas to hold up signs in public places begging for food or money, and under what circumstances this may be done, will be aired at 9:30 a.m. Tuesday in a Little Rock federal courtroom.
U.S. District Judge Billy Roy Wilson has scheduled a hearing to decide whether to block the enforcement of a recently rewritten state law that the American Civil Liberties Union of Arkansas says continues to unconstitutionally ban begging but that the state says only disallows begging in limited circumstances, making it constitutional.
In a lawsuit filed Aug. 7, the ACLU contends that revisions made during the 2017 legislative session to Section (A)(3) of Arkansas Code Annotated 5-71-213 don't resolve the constitutionality problem that caused Wilson to invalidate that section of the law last fall. Wilson's ruling in November was in response to a lawsuit the ACLU had filed a month earlier. Until then, the law had been on the books for about 30 years but had never been challenged.
The previous version of the law made it illegal for a person to "linger or remain in a public place or on the premises of another for the purpose of begging."
By singling out loitering "for the purpose of begging," the law violated the First Amendment, Wilson found.
Under a U.S. Supreme Court decision handed down in 2000, any law that regulates speech on the basis of its content must be narrowly tailored to promote a compelling government interest in order to be constitutional.
In this case, the only speech that was outlawed was asking for charity, and Wilson said the state didn't show that outlawing that type of speech served a valid state interest.
In his November ruling, Wilson noted that the state had asked him to abstain from deciding the matter because the Arkansas Supreme Court "might someday interpret the anti-begging law" in a way that avoids constitutional concerns in the way it is applied. While it's true that federal courts should defer to the authority of state courts to interpret state law in such cases, Wilson said, "here ... even assuming the Arkansas Supreme Court might someday be presented an opportunity to interpret this statute, I can imagine no interpretation shy of metaphysical contortions that would save the anti-begging law from constitutional concerns. According, I decline to abstain."
Almost immediately after Wilson struck down Section (A)(3), street corners in Little Rock were brimming with people holding up signs asking for food, money or work. Often, several panhandlers are present at the same intersection.
In response, Arkansas legislators rewrote the section, which now says: "A person commits the offense of loitering if he or she ... lingers or remains on a sidewalk, roadway or public right-of-way, in a public parking lot or public transportation vehicle or facility, or on private property, for the purpose of asking for anything as a charity or a gift: (A) in a harassing or threatening manner, (B) in a way likely to cause alarm to the other person, or (C) under circumstances that create a traffic hazard of impediment."
Assistant Attorney General Delena Hurst has argued that the new version is "significantly different" from the previous version, which was considered too broad.
She argued that the new wording requires a person to engage in conduct consisting of all three elements -- lingering, asking for charity, and doing so in a harassing or threatening manner -- to violate the section and face criminal penalties.
But the ACLU said the additional elements still don't resolve the fact that the targeted conduct remains asking for charity, or begging.
Even under the new law, the ACLU said, "A solicitation to vote for a candidate, attend a meeting, join an organization or eat at a particular restaurant, delivered in the same manner and tone as that or money or other charity, would not result in citation or arrest under this provision."
The attorney general's office said the new version has resolved constitutional concerns by being more focused and less broad, and has again asked Wilson to defer to the authority of the state courts to interpret the more-tailored statute.
"A narrow construction by the Arkansas Supreme Court could avoid constitutional concerns in the statute's application," the attorney general's office has argued.
According to a legal-information website run by media company ALM, in constitutional law there is a distinction between liberal construction (broad construction) and strict construction (narrow construction). Liberal construction adds modern and societal meanings to the language, while strict construction adheres closely to the original language and intent without interpretation.
For Tuesday's hearing, Wilson has ordered that the two plaintiffs in the case, on whose behalf the ACLU filed both last year's and this year's lawsuits, be present. They are Michael Andrew Rodgers, a disabled veteran in Hot Springs who was cited in 2015 for violating the law, and Glynn Dilbeck, a homeless man who was cited in 2015 for holding a sign begging for money in Benton County.
ACLU attorneys Bettina Brownstein and Katherine Stephens asked Wilson to quash the subpoenas that the state issued for the men, arguing that Dilbeck currently lives in Tennessee, outside the geographical scope of the subpoena, and that for both men, the "practical hurdles are huge," including that Rodgers is penniless and has no means of traveling to Little Rock.
State attorneys responded that if Dilbeck now lives in Tennessee and doesn't work or transact business in Arkansas, then he also doesn't beg in Arkansas and cannot be a plaintiff. The attorneys also said they have a right to cross-examine both men about their claims that the new version of the law "chilled" them from begging for fear of being found in violation of the law.
Wilson has ordered both men to be present.
Regardless of what Wilson decides about the revised Section (A)(3), other sections of Arkansas Code Annotated 5-71-213, known as the anti-loitering law, have remained in effect despite the ACLU's complaint that they are also unconstitutional.
They prohibit lingering or prowling under circumstances that warrant concern for safety without a reasonable explanation for being present; around a school without having a responsibility for a student; for illegal gambling purposes; for soliciting a prostitute or deviate sexual activity; for buying illegal drugs or alcohol; for spying on someone or invading someone's property; or near an automatic teller machine.
Metro on 09/01/2017