RICHMOND - An ACLU of Virginia lawsuit challenging Charlottesville's ban on panhandling on the Downtown Mall within 50 feet of cross streets may proceed, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled today. The opinion reverses the earlier dismissal of the case by U.S. District Court Judge Norman Moon.
"[B]egging is communicative activity within the protection of the First Amendment," the Court of Appeals wrote. The court found it "plausible" that the purpose of the ordinance was to prevent the homeless men's "undesired presence on the Mall - in other words, to prevent [them] from conveying their unwanted message."
"The presence of homeless people begging in public places makes some people feel uncomfortable. But the First Amendment does not allow the government to ban speech simply to prevent discomfort," said ACLU of Virginia legal director Rebecca Glenberg, one of the attorneys for five homeless men who regularly request money from pedestrians on the Downtown Mall.
The Court of Appeals held that Judge Moon should not have accepted Charlottesville's "public safety" rationale for the ordinance without hearing evidence about whether such a rationale was valid.
"Localities may not ban people from asking for money simply by invoking the magic words 'public safety," said Glenberg, who also represented the plaintiffs. "We are confident that the evidence will show that asking for money within 50 feet of a street is no more 'distracting' to motorists than any other activity on the Downtown Mall."
In addition to Glenberg, the plaintiffs were represented by Charlottesville attorney Jeffrey Fogel, who argued the case before the Court of Appeals in December.
The Court of Appeals decision can be found at https://acluva.org/wp-content/uploads/2013/02/20130221ClatterbuckFourthCircuitOpinion.pdf