Individuals who have lost everything—their homes, jobs, and dignity—are often forced to live on the street. Those with no reasonable alternative can find themselves relying on the generosity of others just to survive. In response, citizens petition, legislatures enact, and officers enforce laws that criminalize signs of visible poverty. Municipalities have made considerable attempts to remove visible poverty from their cities by drafting legislation that disproportionately punishes people experiencing homelessness. This Note focuses on a particular subset of such legislation, laws that criminalize panhandling. Section I of this Note provides an overview of the First Amendment and the protection of free speech. Section II provides a brief history of panhandling laws generally and a description of the path to second generation aggressive panhandling laws. Section III illustrates the language and structure of aggressive panhandling laws in Washington State, using Seattle and Tacoma’s panhandling ordinances as examples. Section IV provides a three-part critique of aggressive panhandling laws. In response to the critique, this Note concludes by proposing that legislatures either repeal or substantially modify their panhandling laws. First, legislatures should repeal provisions that provide vague, perception-based components that criminalize panhandling in a manner that causes “reasonable fear” or “compulsion.” Such provisions fail to provide reasonable notice of what conduct is prohibited and cater to established societal biases and prejudices about people experiencing homelessness and poverty. Second, legislatures should repeal time, place, and distance restrictions on panhandling that resemble provisions courts have already invalidated as unnecessary to serve a compelling public safety interest. Third, legislatures should repeal panhandling provisions that restrict conduct already prohibited by existing laws that cover the same conduct without restricting protected speech. Panhandling laws are, at their very core, content-based discriminations on protected speech. Accordingly, legislatures and readers are encouraged to question whether these strategic, constitutionally suspect components of aggressive panhandling laws are justified.
Drew Sena, A Constitutional Critique on the Criminalization of Panhandling in Washington State, 41 SEATTLE U. L. REV. 287 (2017).