Begging to differ: Panhandling battle rests on First Amendment fight and judge’s discretion

A federal judge heard arguments last week in the suit challenging the city’s Downtown Mall restriction on panhandling near traffic crossings. File photo. A federal judge heard arguments last week in the suit challenging the city’s Downtown Mall restriction on panhandling near traffic crossings. File photo.

The legal battle over Charlottesville’s controversial ordinance banning panhandling within 50′ of traffic crossings on the Downtown Mall is back in the hands of a federal judge who threw out the case last year.

Judge Norman K. Moon previously dismissed the argument that the ordinance unfairly restricts the First Amendment rights of people who beg on the Mall, but the Fourth Circuit Court of Appeals reversed his ruling, sending the case back to Charlottesville. Both the plaintiffs and the city have asked for summary judgment, which puts the ball squarely in Moon’s court—no jury needed.

Last Thursday’s hour-long hearing included long-winded arguments about just how much space was necessary to keep distracted pedestrians from being driven into traffic by panhandlers. But ACLU-backed Charlottesville human rights attorney Jeffrey Fogel, who is representing a local homeless man named Albert Clatterbuck and one other plaintiff, said it’s about more than that.

“You’ve really got to look at this as a fight over a symbol,” he said. “And the symbol to me was that the city singled out panhandlers.”

Fogel’s argument goes like this: By writing the ordinance to specifically ban soliciting for money—as opposed to, say, petition signatures—the city made it clear its goal was to curtail begging. That makes it what’s known as a content-based restriction, said Fogel, something the law takes very seriously.

If the city wants to ban a certain kind of speech, it has to prove it used the least restrictive means possible to do so. Even if Moon doesn’t agree with the content-based claim, he said, the city still has to show it narrowly tailored its rule, and that the restrictions were a “reasonable fit” to address public safety concerns.

And it can’t do either, said Fogel. Even the city’s attorney, Richard Milnor, agreed that nobody could determine who decided a 50′ buffer zone would be sufficient to keep potentially distracted pedestrians safe. It was, Fogel contends, an arbitrary number supported by a city traffic engineer after the fact, and he says that proves officials weren’t weighing the impact the rule had on free speech.

Milnor said the 50′ buffer—approximately the length of three cars–—was reasonable. Even Clatterbuck agreed in earlier testimony.

“He said pedestrians would move away from him even if there were cars in the street,” Milnor said, evidence there was a real risk that people might dart into traffic to avoid panhandlers.

Moon called the idea of a buffer zone between panhandlers and cars “common sense.”

“Asking a person to go into their wallet, their purse, is distracting,” he said, and potentially dangerous. “It seems to me the question in this case is, where do you draw the line?”

We’ll have to wait for the answer. It could be months before Moon hands down his ruling on the case.

In the meantime, Clatterbuck, who could be awarded some money in damages if he prevails, is doing well, said Fogel. He has a room at The Crossings now. A disability suit was settled in his favor, and he bought a scooter with his payout, which he uses to get around town.

But the case that bears his name is about more than one man. It comes down to whether people have the right to make others uncomfortable in a public forum, Fogel said. “We can’t judge the law based on people’s hostility to free speech,” he said.

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