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February 20, 2015

Anti-solicitation ordinance violates free speech, says court.

Charlottesville, VA – Yesterday afternoon, U.S. District Court Judge Norman K. Moon ruled in favor of the American Civil Liberties Union (ACLU) of Virginia in a case involving a Charlottesville prohibition on begging in certain parts of the downtown pedestrian mall.  Judge Moon’s ruling found the city’s ordinance to be unconstitutional, and ordered the City to stop enforcing the ban.  The ACLU of Virginia represented the plaintiffs in the case, homeless men who regularly ask passersby for contributions on the mall. 

“This litigation was not about homelessness but rather about the right of everyone in our community to exercise free speech,” said Charlottesville attorney Jeffrey Fogel, who represented the plaintiffs as cooperating attorney for the ACLU. “As the court found, it was ‘the City’s intention to discriminate against a particular type of speech (panhandling) and a particular kind of speaker (beggars).’ Fortunately, the First Amendment does not allow government to pick and choose the speech it will allow.”

The ordinance, which was passed in 2010, prohibited solicitation of funds within 50 feet of the two streets that cross the mall.  The City had argued that the ban was needed to prevent drivers from being distracted by beggars.  It also argued that pedestrians seeking to avoid panhandlers might walk into the street.  Judge Moon rejected these rationales, finding that the City had produced no evidence that begging was any greater threat to public safety than any other distractions on the mall.

“This decision reaffirms that the government must act carefully when it seeks to curtail people’s right to free speech,” said ACLU of Virginia Legal Director Rebecca K. Glenberg, who also represented the plaintiffs.  “The government must show that the restriction actually addresses some concrete problem.  In this case the City did not even come close to providing such evidence.”

The case was filed in 2010.  Judge Moon initially dismissed the case, holding that the City’s traffic safety concerns were sufficient justification for the ordinance.  On appeal, the U.S. Court of Appeals for the Fourth Circuit reversed that decision and instructed the lower court to examine more whether Charlottesville had intended to discriminate against certain types of speech.  Yesterday’s decision was the result of Judge Moon’s reconsideration of the issue.

In recent years, the ACLU of Virginia has actively opposed ordinances that restrict begging and/or roadside solicitations in Richmond, Herndon, Newport News, and Hampton.  In most of these jurisdictions, proposals were dropped or amended during the legislative process that enabled the ordinances to pass constitutional muster.
In addition to Fogel and Glenberg, the plaintiffs were represented by Charlottesville lawyer Steve Rosenfield.

Click here to read the court's opinion.