ACLU Asks Hampton to Fix Ordinance Banning Protected Speech on City Sidewalks

Affiliate: ACLU of Virginia
August 10, 2010 12:00 am

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Earlier comments by ACLU got city council’s attention


Hampton, VA –The ACLU of Virginia today sent a letter to the members of Hampton City Council asking them to amend a recently adopted ordinance that bans expression protected by the First Amendment in a traditional public forum.

The ordinance prohibits individuals from soliciting money from or offering goods or services to the occupants of motor vehicles while “on or adjacent to a highway.” Although banning such activities in a roadway where cars travel is a reasonable restriction intended to protect public safety, sidewalks adjacent to streets are considered public forums where such speech is protected.

Shortly after the new ordinance was passed last month, the ACLU of Virginia made it clear to public officials in Hampton that it was unconstitutional. According to news reports, city council is now considering amending the ordinance to remove the speech restrictions on public sidewalks. The amendments could be voted on as early as tomorrow.

The City of Newport News passed a similar non-solicitation ordinance about the same time as Hampton, but with much vaguer language. However, soon after passage — and after the ACLU voiced its objections — city officials announced that it would not be enforced against individuals on sidewalks.

“In difficult times, when there are more homeless people asking for donations and more day laborers seeking work, there is a tendency to pass these kinds of blatantly unconstitutional ordinances,” said ACLU of Virginia executive director Kent Willis.

“But local government officials, out of step with the concept of free speech, try to clear the sidewalks of people just because they consider them to be less desirable members of our society,” added Willis. “These individuals have a story to tell, whether it is the need for a job or for more money, and they have a right to tell it while standing in public places such as sidewalks. We can’t make poverty or a bad economy go away by silencing its messengers, but that is exactly what we seem to be trying to accomplish with these ordinances.”

“Elected officials need to be reminded that the same constitutional principle of free speech that gives them the right to hand out literature and ask for contributions to their campaigns also protects the right of homeless persons to ask for donations,” said Willis.

The ACLU’s letter, written by ACLU of Virginia legal director Rebecca Glenberg, follows.

August 10, 2010

City of Hampton City Council
8th Floor, Hampton City Hall
22 Lincoln Street
Hampton, VA 23669

Dear Council Members:

I write regarding the recent enactment of City Code Sec. 21-188, which regulates leafleting, solicitation, and sale of goods on public roads. As it stands, the ordinance appears to include an unconstitutional prohibition on speech on public sidewalks. It is my understanding that Council intends to consider an amendment at this Wednesday’s meeting that will address that problem, and I urge you to vote in favor of that amendment.

The ordinance prohibits any person distributing literature to, soliciting money from, or offering goods or services to the occupants of motor vehicles while “on or adjacent to a highway.” While the term “adjacent to” is undefined in the ordinance, it could reasonably be interpreted to include public sidewalks.

Public sidewalks are “traditional public forums” that “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. C.I.O., 307 U.S. 496, 515-16 (1939). Speech in public forums may be limited only by “content-neutral and reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999) (internal quotation marks and citation omitted).

To the extent that it includes activities on public sidewalks, the ordinance is not narrowly tailored to serve the government’s interests in traffic flow and traffic safety, because it prohibits a broad array of speech that does not implicate those concerns. For example, it prohibits speech directed to the occupants of lawfully parked vehicles, speech directed to vehicles that may lawfully pull over into a parking lane, and speech that invites drivers to pull into a parking lot to receive the speakers’ information.

It is my understanding that the proposed amendment to the ordinance would remove the words “or adjacent to” from the ordinance, clarifying that the ordinance extends only to activity that takes place on the highway itself. In our view, this amendment would fix the constitutional problem.

Should you have any questions, please do not hesitate to call me at (804) 644-8080. Thank you for your attention to this matter.


Rebecca K. Glenberg
Legal Director

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