A challenge to Arkansas’ antiloitering statute brought before U.S. District Judge Bill Wilson Tuesday has resulted in a portion of that law being struck down after Wilson ruled the section that prohibits begging violates the U.S. Constitution guarantee regarding freedom of speech.
The statute, 5-71-213, deals with prohibitions against rioting or creating a public disturbance, specifically, loitering, and classifies the offense as a Class C misdemeanor, punishable by up to 30 days in jail and a fine of up to $500. (Ark. Code 5-4-401, 5-4-201.) The subsection of the statute, 5-71-213(a)(3), gives one definition of loitering to read, “Lingers or remains in a public place or on the premises of another for the purpose of begging.”
The ACLU filed the case on behalf of two men, Glenn Dilbeck and Michael Andrew Rodgers, who have been arrested in the past for panhandling. Dilbeck, a homeless man who said he is trying to pay his daughter’s medical expenses, and Rodgers, a disabled veteran, said in court paper they have been arrested after holding up signs asking for money from passersby.
The ACLU said the statute, as written, makes begging a crime in all places and in all circumstances, and as such, is overly broad to the point it infringes upon the right of free speech.
Bettina Brownstein, arguing on behalf of the American Civil Liberties Union of Arkansas, said the ACLU’s contention is that the entire statute is unconstitutional, but agreed to sever the section that specifically refers to begging, and asked that Judge Wilson rule only on that section.
“We actually believe the loitering statute as a whole is unconstitutional although I think that’s something we have to reserve to fight for another day,” Brownstein told Judge Wilson during oral arguments.
The ACLU’s case was centered on the contention that the statute, because it does not define what constitutes begging, is too vague, and that it can be too broadly applied as a prohibition against begging at any time, in any place, by any person, for any reason, and as such, violated the First Amendment guarantee of free speech.
“The statute applies all the time, day or night, anywhere,” Brownstein said. “That’s not substantially applicable, that’s universally applicable.”
Assistant Attorney General Colin Jorgensen, arguing on behalf of the state, asked Judge Wilson to dismiss the case, saying it should be a matter for the state supreme court to decide, and that the plaintiffs, because they are not subject to prosecution for panhandling, lacked the standing before the court required to be a part of any such litigation.
Jorgensen also contended that, as the law is written, the men’s actions would not be considered illegal. Brownstein disagreed, and said the law is written in such a way to prohibit begging under all circumstances.
Initially, Judge Wilson called a recess after about an hour of oral arguments, saying that, while inclined to side with the ACLU, he wanted to give consideration to the issue of severability of the begging clause from the rest of the statute. When he reconvened, Brownstein, in a move to hasten the ruling, said she was withdrawing the ACLU’s objection to severability.
Wilson issued his ruling later Tuesday afternoon. He wrote, “A statute that regulates speech based on its content, must be narrowly tailored to promote a compelling government interest. Banning begging in all places, at all times, by all people, in all ways does not come close to chinning this bar. Arkansas’ anti-begging law infringes on the freedom of speech guaranteed under the First Amendment to the Federal Constitution.”
Holly Dickson, legal director for ACLU of Arkansas, said the ruling won’t open the door for unrestricted panhandling, but said it will protect some of the most vulnerable people from being arrested for asking for help.
“If you’re violating a separate section of the code, if you’re impeding traffic or you assault someone for example, those things are covered elsewhere in the code. This isn’t a license to commit crime, it is just a recognition that peaceably asking for assistance is protected by the Constitution,” said Dickson.