The exercise of free speech and expression is exempt from the city's latest attempt to regulate the interaction of pedestrians and motorists in public rights of way, according to the ordinance the Hot Springs Board of Directors will consider Tuesday night.
The exclusion comes after the board in August repealed the ordinance adopted last year to ban panhandling on streets and medians. The city said safety was the intent behind the regulation, which prohibited pedestrians from approaching vehicles on public rights of way for the purposes of soliciting any item, including money.
The subsequent legal challenge the American Civil Liberties Union of Arkansas brought in June claimed the city invoked safety to mask its true intent, ridding the streets of the unwanted public presence of panhandlers. The federal lawsuit was filed on behalf of Michael Andrew Rodgers, who claimed the ordinance restricted his constitutionally protected right to beg.
Negotiations between the city, Arkansas Municipal League and ACLU led to the city suspending enforcement of the ordinance in July and the board repealing it the following month. Bettina Brownstein, Rodgers' ACLU-sponsored attorney, said Friday that she thinks the new ordinance also runs afoul of the Constitution.
She said earlier this year that she was waiting to see the replacement ordinance before advising Rodgers on how to proceed with the lawsuit, which sought to declare the previous ordinance unconstitutional and permanently enjoin its enforcement.
"We'll do some legal research, but the ACLU anticipates filing an amended complaint challenging the validity of the proposed ordinance under the First and 14th amendments," she said Friday.
The new ordinance does not allow pedestrians and occupants of a vehicle that's in operation on a public right of way to "interact physically." It makes no reference to soliciting, and its definitions section states to interact physically does not include the exercise of "protected free speech or expression by any person."
The introductory section of the ordinance references data the National Highway Traffic Safety Administration has compiled on traffic accidents involving pedestrians. Pleadings the ACLU filed in Rodgers' lawsuit argued the city's safety rationale was unsupported by data or documented complaints about safety issues related to panhandling.
City Attorney Brian Albright told the board at its Nov. 28 agenda meeting that the Municipal League and Center for Local and State Government in Washington, D.C., helped draft the ordinance the board will consider Tuesday night. Brownstein said she wasn't consulted.
The ACLU won a preliminary injunction in September against the enforcement of the amended state loitering statute the Legislature passed earlier this year. Its pleadings said Rodgers, a co-plaintiff in the case, couldn't panhandle in certain areas for fear of being cited under the statute, which prohibits asking for charity or gifts in a harassing or threatening manner, in way likely to cause alarm or under circumstances that create a traffic hazard.
U.S. District Judge Billy Roy Wilson granted the preliminary injunction, ruling that the law imposed a content-based restriction of constitutionally protected speech.
"(The statute) restricts only a certain species of speech," Wilson wrote in his Sept. 26 order. "Thus, if two people created a traffic hazard or impediment by holding signs, but one asks passers-by to vote for a political candidate and the other asks passers-by to give to a charity, the statute would apply only to the person whose sign asks passers-by to give to a charity."
Wilson said other laws regulate the conduct targeted by the statute without infringing on protected speech, explaining that the statute against driving a vehicle so slow as to impede traffic could be used to stop panhandling in public rights of way.
The attorney general's office has appealed the ruling to the 8th U.S. Circuit Court of Appeals.
The Legislature amended the loitering statute after Wilson last December permanently enjoined the state from enforcing the previous statute, ruling that it, too, was a restriction on free speech. Rodgers, 53, was also a co-plaintiff in that case.
Hot Springs police arrested him on the authority of the previous loitering statute in October 2015. He was found guilty the following January in district court. The ACLU filed an appeal in Garland County Circuit Court, where Division 1 Circuit Judge John Homer Wright dismissed the misdemeanor conviction in June 2016.
Wright's order said the statute amounted to an overly broad limitation on free speech, with the state failing to show a legitimate purpose for restricting such a fundamental right.
"The state does not have a compelling interest in excluding those who beg in a peaceful manner," the order said. "Even if the state could show a compelling interest, which it has not done, this law is not narrowly tailored because it bans all begging everywhere at all times."
Local on 12/02/2017