The U.S. Supreme Court quietly reversed a decision Monday in a Massachusetts anti-panhandling case that most likely will keep a similar law off the books in Portland, according to the American Civil Liberties Union of Maine.
The nation’s high court reversed a ruling by the 1st U.S. Circuit Court of Appeals in Boston concerning a Worcester, Massachusetts, anti-panhandling ordinance, according to information posted on the Supreme Court’s website.
The high court sent the case back to the appellate court with instructions that the three-judge panel apply the Supreme Court decision announced June 18 that overturned a sign ordinance in Gilbert, Arizona.
While an anti-panhandling ordinance and a law regulating signs may appear to have nothing in common, both cases raised issues about the ability of a municipality to place restrictions on the First Amendment right to free speech in public spaces, according to Zachary Heiden of the ACLU of Maine.
The Supreme Court found that the Arizona law was unconstitutional because it regulated the display of signs based on their content.
Similarly, a federal judge in Maine found that a Portland ordinance that banned panhandlers from medians violated the First Amendment because it allowed people access to the same medians to put up political and other types of temporary signs.
City councilors who approved the Portland ordinance said the law was necessary for safety reasons, pointing to drivers’ complaints of median strip panhandlers acting aggressively or nearly falling into the paths of oncoming cars.
Portland appealed the case to the 1st Circuit after U.S. District Court Judge George Z. Singal ruled in February 2014, following a trial on the issues, that the city’s 2013 ordinance that banned standing in median strips was unconstitutional.
“The city’s safety justification does not correspond to the favoring of campaign messages over all others. … Instead, on its face, the ordinance, as officially interpreted, is a content-based restriction on free speech,” Singal wrote, in part.
A three-judge 1st Circuit panel heard oral arguments on the Portland appeal in January in Boston but decided to wait to issue a ruling until the Supreme Court made a decision in the Worcester case.
Which leads back to the case in Arizona, Reed v Gilbert, which drew a unanimous rejection from the high court.
“The sign code’s provisions are content-based regulations of speech that do not survive strict scrutiny,” Justice Clarence Thomas wrote for the court in the Arizona case. The strict scrutiny standard presumes the policy or law to be invalid unless the government can demonstrate a compelling interest to justify it, according to Black’s Law Dictionary.
The Arizona ordinance limited the size of temporary signs, how many could be displayed where and how long they could be displayed based on their content. For example, signs directing the public to an event were limited to six square feet in size and allowed only four on a single property at any time. The signs also could be displayed for no more than 12 hours before the event and had to be removed one hour after it ended.
Signs defined as “communicating a message or ideas” could be up to 20 feet in size and had no restrictions on placement or how long they could be displayed.
This applies to the Portland case, the attorneys representing the plaintiffs wrote in a June letter to the 1st Circuit. The American Civil Liberties Union of Maine helped bring the original lawsuit against the city on behalf of three Portland residents, two who had used median strips to hold political signs and one who stood in the narrow traffic dividers to ask for money from passing drivers.
“[Portland’s] ordinance is content based and subject to strict scrutiny because it treats one category of speech (displaying campaign signs) more favorably than all other speech on city medians,” it said.
Attorneys for the city disagreed in a letter submitted last week before the order in the Worcester case was issued.
“This case is not about the constitutionality of any sign ordinance,” a letter to the 1st Circuit from the city said. “It is conduct, and conduct alone with which the median ordinance is concerned. That is, it is the presence of a person in the medians that matters, not whether they are holding or installing a sign or what that sign might say.”
Efforts to reach an attorney for the city of Portland were unsuccessful Tuesday, Wednesday and Thursday.
The eventual ruling in the Portland case is not expected to affect Bangor’s ban on “aggressive” panhandling, according to City Solicitor Norm Heitmann. Passed two years ago, it forbids unreasonable solicitation.
That is defined as occurring when an individual asking for money, a signature or another “item of value” blocks a passer-by on a sidewalk, street or public way; follows a person asking for money repeatedly; threatens a person with physical harm through words or gestures; or touches a person without his or her consent, according to a previously published report. That applies whether the person being solicited is on foot or in a vehicle.
The aim of the ordinance was to “impose reasonable limitations on solicitation in order to protect the safety of the general public against unreasonable solicitation while respecting the constitutional right of free speech.”
Heitmann said that because the Bangor ordinance is based on behavior and not on speech, the decision in the Arizona case is not likely to apply.