13:49, November 07 320 0 abajournal.com

2019-11-07 13:49:06
Anti-panhandling law likely violates First Amendment, 8th Circuit says; dissenter disagrees on injunction reach

First Amendment

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A ban on harassing panhandling in Arkansas is likely unconstitutional and enforcement of the law may be banned statewide, a federal appeals court has ruled.

The 8th U.S. Circuit Court of Appeals at St. Louis upheld a statewide preliminary injunction in a First Amendment challenge filed by the American Civil Liberties Union of Arkansas. Courthouse News Service, the Arkansas Democrat-Gazette and the Associated Press have coverage of the Nov. 6 decision. A press release is here.

The law bans begging in a manner that is harassing, causes alarm or impedes traffic.

The ACLU had filed its suit on behalf of Michael Andrew Rodgers and Glynn Dilbeck, two men cited under a prior version of the law. Rodgers and Dilbeck said they had changed their begging behavior because they fear arrest under the new law.

The 8th Circuit said the law is a content-based restriction that singles out charitable solicitation, and it is not “narrowly tailored to achieve its public and motor-vehicle safety interest.”

The panel majority upheld the statewide reach of the preliminary injunction banning enforcement of the law. Such broad relief may be appropriate when a facial First Amendment challenge is likely to succeed, the 8th Circuit said. Judge Michael Melloy wrote the majority opinion.

In a partial dissent, Judge David Stras said enforcement of the law should be enjoined only as applied to the two plaintiffs. “I do not agree that the district court could prevent the entire Arkansas State Police force from enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs,” he wrote.

Stras is an appointee of President Donald Trump. Melloy is an appointee of President George W. Bush.