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FORT SMITH -- The way to regulate panhandling in towns and cities is not to try to regulate panhandling, Arkansas Municipal League attorneys told members Thursday during the group's winter conference at the Fort Smith Convention Center.

"There's no real success when you're trying to regulate panhandling because what you're doing is regulating protected speech," which the courts have consistently rejected, league attorney Lanny Richmond said.

Richmond and league general counsel Mark Hayes talked to league members about the problems dealing with panhandling and how to devise ordinances that may pass judicial muster.

Courts have said panhandling is speech protected by the First Amendment and that attempts to regulate it treats it differently from other forms of protected speech.

The American Civil Liberties Union of Arkansas last year challenged Arkansas' newly rewritten panhandling law that took effect Aug. 1. Despite being rewritten, the ACLU contended, the new law unfairly singles out panhandlers for a criminal violation.

The state argued the law conforms to the U.S. Supreme Court precedent that requires state laws restricting First Amendment freedoms to be "narrowly tailored" to protect state interests.

The state says the law is necessary to protect people from harassment, fear and traffic accidents.

U.S. District Judge Billy Roy Wilson issued a preliminary injunction in September against enforcement of the new law. The state has appealed the ruling to the 8th U.S. Circuit Court of Appeals.

There have been a couple of successful court cases in other states, Richmond said, but those efforts have centered on maintaining public safety and not focusing on stopping people from begging.

To be successful, towns and cities have to write ordinances that have documented facts showing the dangers an ordinance is attempting to regulate, the attorneys said.

"If you don't do that kind of fact-finding, the chances of surviving a federal court action are pretty remote even if your ordinance is well-written," Hayes said.

The ACLU is suing three cities in the federal court's western district -- Fort Smith, Hot Springs and Rogers -- over their panhandling laws.

Hot Springs amended its ordinance Dec. 5, intending to promote safety on the public rights of way by prohibiting pedestrians and motorists from "interacting physically" and to keep all pedestrians out of the streets and rights of way.

The ACLU argues in its amended complaint that the Hot Springs ordinance is regulating activity "intrinsic" to panhandling and still targets panhandlers.

The ACLU filed its fifth amended complaint last week against Rogers in federal court. It says Rogers' new ordinance prohibits a person from approaching an occupied vehicle of another that is in operation on a public street.

"This ordinance also failed all relevant tests applied by the United States Supreme Court and other federal and state courts because it was a content-based restriction on freedom of speech that was facially invalid under strict scrutiny," the complaint said.

Fort Smith repealed and replaced its ordinance in July to keep all pedestrians out of the street. A portion of the ordinance said "no person not occupying a motor vehicle shall walk on, stand in, sit in, extend any body part or device into or otherwise occupy any portion of a roadway within any public street right of way."

In October, the ACLU amended its complaint against Fort Smith challenging the latest ordinance.

State Desk on 01/12/2018

Print Headline: Panhandling protected speech, attorneys say

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