Andrew Wolfson

@adwolfson

Once I built a railroad, I made it run

Made it race against time

Once I built a railroad, now it's done

Brother, can you spare a dime?

Panhandlers have been championed in song, like the classic ditty above from the Great Depression – and denounced by motorists and pedestrians as nuisances or worse.

Now the Kentucky Supreme Court will decide whether their right to beg for money on public streets and intersections is protected by the First Amendment.

In an emotional case involving poverty and homelessness and pitting public safety against free speech, the court will consider the fate of Dennis Champion, who was cited on Dec. 8, 2014, for holding up a sign begging for money at a busy Lexington intersection, in violation of the city’s anti-begging ordinance.

His lawyer, Assistant Public Advocate Linda Roberts Horsman, says the ordinance is “patently unconstitutional because it criminalizes speech.”

She said the case is also important because issues like poverty need to be addressed, not swept under the rug.

“The beggars’ message and indeed their very presence,” she says in a brief, “contribute to the interchange of ideas regarding homelessness” and make it impossible to be “oblivious to the poverty in their midst.”

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Defending the ordinance, which carries a maximum penalty of 30 days in jail, a $100 fine, or both, the Fayette County attorney’s office says the urban county government has a compelling interest in "pedestrians not being struck by motorists” and in the “efficient flow of traffic.”

But experts on constitutional law, including Robert Frommer, a staff attorney with the libertarian-leaning Institute for Justice in Arlington, Va., say the ordinance is likely to be struck down because it singles out only one type of speech – begging.

For that reason, courts have knocked out similar laws recently in Springfield, Mass., Portland, Maine, Grand Junction, Colo., and Worcester and Lowell, Mass.

Frommer said the Lexington ordinance could pass muster if it banned going into the street for any purpose, but the Fayette County attorney’s office concedes the law doesn’t apply to performers who sing songs or perform skits for motorists at red lights.

The bans in other cities were thrown out after the U.S. Supreme Court in 2015 held that such “content-based” speech restrictions are allowed only in the rarest of instances – when the government can show there is a compelling requirement for the law and that it is tailored to do that in the most narrow way possible.

That ruling came in a case in which an Arizona town imposed tougher restrictions on signs giving directions to a church than signs posted by political campaigns.

Frommer and others say Jefferson County’s ordinance, which is focused on “aggressive panhandling,” likely will survive even if Lexington’s law is struck own.

Lexington police issued 327 citations for panhandling last year and received more than 1,000 complaints about it in the first nine months of this year, spokeswoman Brenna Angel said.

The Fayette County attorney’s office says it doesn’t know of anyone who has been hit by a car or truck while panhandling.

Champion, 58, has been cited or arrested 558 times for begging, illegal solicitations and disorderly conduct since 2004 in Lexington and Louisville, court records show.

In the case before Kentucky’s high court, he initially received a citation but was charged when he failed to appear. He pleaded guilty and was sentenced to three days in jail, on the condition that he be allowed to appeal.

A circuit judge upheld his conviction, but Horsman said the court failed to consider that the streets are considered a public forum in which free speech must be given greater deference.

“The personal request for assistance from one's fellow man should be accorded the highest level of First Amendment protection,” Horsman says in her brief.

“Beggars actually serve a public good, particularly in a country as bountiful as ours,” she writes. “Their presence and activities also convey the truthful information that American citizens are living as destitute, homeless castaways."

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The Supreme Court is unlikely to decide the case for several months.

In its response, the county says the conduct that needs to be prohibited “is not standing on the sidewalk at the intersection holding a sign asking for money” but instead “stepping into the street to get money from the motorist and then walking in the street to the next car in line to get money from the next motorist, and so on."

“The motorist who is fifth in line waiting at a red light has a right to expect the four vehicles ahead of him or her to proceed when the light turns green,” Assistant County Attorney Jason Rothrock says in his brief. “The fifth motorist should not have to wait for the four motorists in front of him to conduct business or have some type of personal interaction with a person on foot,” he says, whether the solicitor is an indigent person begging, "a teenager soliciting money for a church mission trip, a Girl Scout selling cookies or a person selling newspapers."

But Horsman, whose arguments are supported by a friend-of-the court brief from the ACLU of Kentucky, points out that the ordinance has nothing to do with the interaction between pedestrians and vehicles.

And she says it is “disingenuous” for the government to say it’s designed to protect pedestrians when Champion was cited only for “soliciting/begging for alms” – not for endangering himself or blocking traffic.

She also said it is “absurd” to allow individual counties to criminalize behavior because it produces a patchwork of different laws.

“If the citizens of this great commonwealth chose, through their duly-elected representatives, to criminalize poverty in this manner, a statute would have been enacted,” she says in her brief.

“However, the citizens have no such desire,” she says. “Most of us can spare a dime for our fellow man.”

Reporter Andrew Wolfson can be reached at (502) 582-7189 or awolfson@courier-journal.com

Louisville’s panhandling ordinance

Enacted in 2007, Louisville’s law expressly says its purpose is not to “limit any persons from exercising their constitutional right to solicit funds, picket, protest or engage in other constitutionally protected activity.”

It says no person shall engage in panhandling or aggressive panhandling in a menacing manner:

• Within 20 feet of an automated teller machine, an outdoor dining area or a bus stop; or within a public parking structure.

• Within a crosswalk, street, road or highway, unless registered under the city solicitation ordinance.

• In a manner that that impedes or blocks the flow of pedestrian traffic on a sidewalk or public right of way. The law allows beggars to hold signs asking for money, as long as they are not within 6 feet of a freeway entrance or exit ramp.

It prohibits soliciting money:

• In a way that creates a reasonable fear of imminent bodily harm; using obscene/profane/abusive language; through intimidation or a threat; or by following a person, or after they have turned down an initial request.

Penalties

Non-aggressive panhandling

• First offense, panhandling: $25

• Third within a year: Fine up to $250, or community service

Aggressive panhandling

• Fine of $250, 90 days in jail, or both.