Cranston’s panhandling and leafleting ban on public roadways could be sidelined as early as this week, depending on how US District Court Judge William Smith rules on a request for a temporary restraining order in Rhode Island Homeless Advocacy Project v. Cranston.
‘There are some close calls here so I’m going to take it under advisement,” Smith said after listening to, and questioning, both sides on the merits of preventing Cranston from enforcing the ordinance while his court rules on the constitutionality. He hopes to issue a decision on the TRO by Thursday, he said.
A lawsuit, filed by the Rhode Island American Civil Liberties Union, contends the new Cranston ordinance runs afoul of the First Amendment because it prevents panhandling and leafleting – protected speech – on public roadways. The Cranston City Council, on the advice of Mayor Alan Fung, approved the new law in February. Fung and the Cranston City Council contend the law seeks to improve public safety. Anti-poverty activists say the law intends to push panhandlers out of the public view and free speech advocates insist the ordinance is unconstitutional.
Activists openly flouted the law and were subsequently cited by Cranston police during a panhandling/leafleting demonstration. The citations gave them standing to protest the new law in federal court. Lynette Labinger is arguing the case for the ACLU and Marc DeSisto was hired by Cranston in defense. The RIACLU and Cranston settled a similar lawsuit last year about a similar Cranston ordinance that resulted in the city agreeing to halt enforcement (it was not repealed) and acknowledge it is unconstitutional.
At issue with the preliminary injunction seems to be whether the Cranston law is “content specific” or “content neutral.”Both lawyers presented to Smith their interpretations of Thayer v. Worcester and Cutting v. Portland.
“One way you can win is if you can convince me it is content based,” Smith told Labinger. However, he also told her, “I’m having a hard time understanding why the handing of something would make it content-based. A homeless person could stand on the median and say ‘send money to charity’ or ‘will work for food.'”
Labinger countered that Cranston’s ordinance actually prohibits more than just the activity of giving or receiving information or money, but also purposes of doing so. “If you go out there for the purpose of getting a donation you are already in violation,” she said.
DeSisto disagreed with Labinger that Cranston’s law is content based. “I can’t think of how this could be content based because what is the content? When I hear Lynette’s reasoning, I think that really goes to the manner of communication.”
But rather than debate the merits, DeSisto said it was too early in the process to halt enforcement. He said the city should not be required to produce findings that there was a public safety need for the new law. He and Labinger agreed such findings should be central to the decision.
About the merits of the case, he said, “I know the First Amendment is paramount, and it should be, but this is a public safety issue. That should at least be a major concern.”
Labinger said, “there is no evidence this has anything to do with public safety.” But she agreed the First Amendment was paramount.
“I don’t know how to show more clearly how burdened the speech rights are of the plaintiffs,” she said to Judge Smith. “They want to leaflet and they want to collect donations.”