The city of Dayton is considering new panhandling rules because its current regulations are likely unconstitutional and unlawfully restrict free speech.
The Dayton commission today is expected to introduce an ordinance to amend, replace and eliminate some regulations on solicitation that the city’s law department believes do not pass constitutional muster.
Recent court decisions have concluded that asking for money or expressing a need for assistance is protected free speech, and the Montgomery County Public Defender’s Office recently challenged Dayton’s rules on this basis.
Dayton is looking at eliminating the requirement that people who engage in solicitation register with the city. The city also is considering eradicating a prohibition on soliciting before sunrise or after dark.
“I’m glad to hear that Dayton is taking a good look at its ordinance,” said Joseph Mead, cooperating attorney with the ACLU of Ohio, which challenged the constitutionality of the city of Akron’s “anti-panhandling” ordinance. “Hopefully the city take steps to avoid the litigation that Akron faced.”
In April 2015, the Montgomery County Public Defender’s Office filed a motion to dismiss some solicitation charges that were pending in a Dayton Municipal Court case involving Clayton Peck. Peck has been arrested more than 200 times for panhandling.
Angelina Jackson, assistant public defender, argued Dayton’s panhandling rules are unconstitutional because they prohibit certain types of speech based on content.
Jackson said the city also was inappropriately restricting First Amendment rights by requiring people to get a permit to solicit. Prosecutors dismissed the charges before a judge issued a ruling.
But today, Dayton’s own law department says the city’s ordinances on solicitation are unlikely to survive a legal challenge because of the U.S. Supreme Court’s decision in the case Reed v. Town of Gilbert, Ariz.
In that case, the Supreme Court clarified how laws that restrict the topic or content of free speech are unconstitutional.
Since then, federal courts have ruled against municipalities’ “anti-panhandling” laws for violating the free speech of poor and homeless people, according to advocacy groups.
“In the wake of that decision, a number of federal courts have invalidated panhandling laws that imposed more regulations on begging than on other forms of speech,” wrote the National Law Center on Homelessness & Poverty.
The Reed v. Gilbert case has cast doubt on the constitutionality of laws like Dayton’s that seek to restrict charitable solicitations, said Mead, the attorney.
Earlier this year, the ACLU of Ohio sued Akron, claiming its “anti-panhandling” ordinance improperly singled out one type of free speech — related to charitable donations — for special restrictions.
The city repealed its ordinance a few days after the ACLU filed suit, and the case recently settled, Mead said.
The ACLU said one of the most “odious” provisions of Akron’s law was requiring solicitors to pre-register with the police department and obtain a permit before asking for donations and assistance.
Dayton’s new proposed ordinances would get rid of the city’s registration program and would no longer restrict solicitation activities before sunrise and after sunset.
In 2011, the city of Dayton passed an ordinance requiring solicitors to obtain permits that required presenting photo identification or agreeing to be fingerprinted and photographed.
The city also barred people from obtaining permits if they were convicted of multiple soliciting violations.
Like many communities across the nation, Dayton needs to change its solicitation laws, because they currently would not withstand the test of strict scrutiny, said Jackson.
The proposed ordinances would change the language on some restrictions. The rules now focus more on the activity of distribution instead of on oral or written requests for assistance, according to city documents. The city defines distribution as an exchange or an attempt to exchange a physical item between two or more people.
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