Alabama fights to revive bans on panhandling

ATLANTA (CN) — An attorney for the state of Alabama on Wednesday asked an 11th Circuit panel to overturn a federal judge’s determination that two state laws against panhandling are unconstitutional.

An Alabama federal judge last year handed down a permanent injunction of the state's enforcement of the laws against begging and pedestrian solicitation on a state highway. The decision came after the Southern Poverty Law Center, the ACLU of Alabama and the National Homelessness Law Center filed a class action against the city of Montgomery and the Alabama Law Enforcement Agency on behalf of three homeless citizens.

Although state attorneys conceded that 11th Circuit precedent says begging is protected speech, the state has asked the appeals court to rule the injunction invalid on the basis that older laws show the First Amendment was not historically understood to require the government to permit panhandling.

Alabama Deputy Solicitor General Robert Overing told the three-judge panel the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association Inc. v Bruen and the 2011 decision in Brown v. Entertainment Merchants Association require lower courts to consider long-standing tradition in determining whether certain speech is protected under the First Amendment.

In court filings, the state traced vagrancy laws to the time of the nation's founding and pointed to two Alabama laws as evidence of historic prohibitions on begging: an 1823 law prohibiting begging in the streets and an 1819 law giving the mayor and aldermen of Mobile the power to force vagrants to “indemnify the city against any charge for their support” under threat of being “confined to labor.”

“The Supreme Court said in Brown all the state has to [show] is persuasive evidence that its law is part of a long tradition of proscription,” Overing said. “If Alabama’s begging laws aren’t part of a long tradition then I don’t know what will qualify.”

An attorney for the plaintiffs on Wednesday urged the panel to abide by the 11th Circuit’s 1999 ruling in Smith v. City of Fort Lauderdale, which held that begging is speech protected by the First Amendment.

Arguing on behalf of the plaintiffs, Micah West, a senior staff attorney for the Southern Poverty Law Center’s Economic Justice Project, said there is “no longstanding tradition of regulating the speech of begging” but there may have been “a tradition of regulating and criminalizing poverty.”

West noted then-U.S. Supreme Court Justice Antonin Scalia opined in Brown that violent video games are protected under the First Amendment because they communicate ideas and social messages.

The attorney reminded the panel that one of the plaintiffs, Jonathan Singleton, was arrested six times for holding signs mentioning his situation. At one point, Singleton held a sign reading, “Hungry. Help me. I’m homeless. This could be you.”

“The speech at issue in this case is also communicating ideas and social messages about matters of public concern: hunger, poverty, homelessness, illness,” West said. “If there’s any north star in First Amendment jurisprudence it’s this: the government has no power to interfere with the marketplace of ideas.”

Overing argued begging can be “accompanied” by constitutionally protected speech but is not necessarily protected speech on its own.

At least one member of Wednesday’s panel appeared to disagree.

“Why is it assumed someone begging isn’t also communicating about the state of the economy currently or the way the homeless are treated? Why are those things not necessarily communicated by the homeless begging on the side of a particular roadway?” U.S. Circuit Judge Robert Luck, a Donald Trump appointee, asked.

Acknowledging "people could beg for all manner of reasons and mean to communicate or not communicate,” Overing added, “We’re asking for recognition that there’s some core exception based on the history of all the original states and the federal government proscribing some amount of begging [restriction].”

But West said the matter is simple: “A person asking for help to meet their own needs is communicating a message that they need help.”

Trump appointees U.S. Circuit Judge Barbara Lagoa and U.S. Circuit Judge Elizabeth Branch rounded out the panel, which did not indicate when the case will be decided.

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