City Council Member Tim Burgess's aggressive-solicitation bill is unconstitutional, a national organization on homelessness warned the city council over the weekend. Meanwhile, a law professor at the University of Washington predicts that, if the council passes the bill, courts will gut parts of the measure that violate the First Amendment.
The proposed ordinance "imposes an unconstitutional burden on speech in violation of the First Amendment by targeting speech based on its content in a manner that is not narrowly tailored enough to withstand strict scrutiny by a court as it does not address a legitimate public interest," writes Eric Tars, human rights program director of the National Center on Homelessness and Poverty, in a letter packed with legal citations. "The stated purpose for needing to pass this ordinance is that aggressive solicitation is a public safety issue. However, the data the city collected does not indicate that the reason people feel unsafe downtown is directly linked to solicitation.
(The letter is in this .pdf.)
"Simply being 'concerned' with an issue is not the same as feeling that the issue is a public safety threat. Even if aggressive solicitation was a public safety threat, this ordinance does nothing to reduce that threat," Tars says.
The bill would create legal problems for the city by skirting due process standards for defendants, Tars adds, and fails to provide the sort of services that historically have helped manage issues around homelessness and poverty.
Meanwhile, Stewart Jay, a law professor at the University of Washington and constitutional expert, says, "My prediction is that a court will have to narrow the statute through judicial construction to avoid potential First Amendment problems," Seattlepi.com reports.
Courts have found that governments must have a compelling interest in restricting speech (in this case, an identifiable public safety threat related to panhandling, which data do not show). Legislation that restricts speech must also be narrowly tailored (taking the lightest possible hand to solve a problem, but this bill sets up violators with fines that, according to the Seattle Human Rights Commission, will likely lead to criminal convictions).
Burgess's bill fines violators $50 per incident of aggressive solicitation, at an officer's discretion. If defendants don't pay the fine or don't show up for court (likely scenarios for the poor), suspects get a warrant and can go to jail.
The council is expected to pass the measure this afternoon, but Mayor Mike McGinn said yesterday he is sure to veto the bill, regardless of how many council members vote for it. The council will then have to vote again.
