Free speech versus public safety on the median strip.
By Edgar Allen Beem
The shrewdness of panhandling on a median strip at a busy intersection is that it places the panhandler on the driver’s side of vehicles when they stop at red lights. Cities all over the country have seen a rise in recent years in roadside panhandlers, and Maine cities are no exception.
Motorists in Portland have grown accustomed to seeing men and women standing on median strips, traffic islands, and curbs at Franklin Street Arterial, Deering Oaks park, and just about anywhere cars idle long enough for drivers to read crude, hand-lettered cardboard signs stating the person’s case for charity: “Homeless and hungry.” “Out of work.” “Traveling.” “Single parent.” “Veteran.” “Disabled.” “Will work for food.” “Homeless, but not hopeless.”
While panhandlers are most numerous in Portland, they have also popped up in Augusta, Bangor, Biddeford, Lewiston, Scarborough, South Portland, and even the seaside retreat of Kennebunk. In response, many cities and towns have proposed or passed ordinances designed to control how and where people ask for money. Portland enacted a new ordinance last August, but the American Civil Liberties Union of Maine (ACLU) challenged the ordinance in court, and in February a federal judge declared the law to be an unconstitutional infringement on free speech. The city has appealed that decision.
What has been missed in much of the ongoing public debate about the panhandling ordinance, says Portland Mayor Michael Brennan, is that it does not seek to prohibit panhandling; it only seeks to prohibit standing on median strips.
“It was never advanced as an issue around panhandling,” Brennan says. “It is permissible to ask for money in other public places. The Deering Oaks intersection was not affected. The corner of State and Park streets was not affected. The issue is about people standing on median strips. We have approached this as a public safety issue.”
Zachary Heiden, legal director of the Maine ACLU, reports that ACLU lawyers across the country began seeing a rise in panhandling ordinances two years ago and have been challenging them on constitutional grounds ever since. “The problem,” Heiden says, “is that many of the people who stand on the median are engaging in a constitutionally protected expressive activity — holding signs to protest something, to support a candidate, or to ask for acts of charity.”
While it might seem obvious that it’s unsafe to stand on a median strip in the midst of traffic, Heiden insists, “Surprisingly, it’s not. Almost nobody has ever been hurt while standing on the median, even at the busiest intersections.”
Heiden argues that Portland’s ordinance is not only unconstitutional, it’s also unnecessary. “All three of the problems the city cites are addressed within current law,” he says. “It’s already against the law to be intoxicated in public, to block traffic, and to engage in aggressive panhandling.”
Dee Clarke, an advocate with Portland’s Homeless Voices for Justice who was once homeless herself, says she has a different interpretation of the public safety issue than city officials do. “It’s unsafe,” Clarke says, “to be subjected to hate speech, to have change flung at you, to have coffee thrown on you, to be spit on and beat up.”
So far, free speech has trumped public safety in the panhandling debate. In his February 12 decision, U.S. District Court Judge George Singal found Portland’s ordinance “is a content-based restriction on free speech” because it allows political signs to be placed on medians but does not allow people with signs asking for help. Judge Singal also found that the ordinance “is not necessary to serve the city’s interest in public safety” and that “the medians in the city of Portland are traditional public fora,” meaning forums for the expression of opinions and ideas.
Mayor Brennan, however, says, “There’s a big difference between somebody spending 30 seconds to place a sign and somebody spending two to three hours every day standing on the median strip.”
That failure to differentiate between stopping on and standing on the median will be the basis of Portland’s appeal of the court decision if city officials decide to go ahead with it. Portland is awaiting a decision from the First Circuit Court of Appeals on a Worcester, Massachusetts, panhandling ordinance that prohibits standing or walking on traffic islands except for crossing a street. “If Worcester’s ordinance is thrown out by the First Circuit,” says Portland city attorney Trish McAllister, “then I’m not sure it makes sense for Portland to go ahead with the appeal.”
Biddeford, faced with roadside panhandlers at Exit 32 of the Maine Turnpike and the busy Five Points intersection, has a panhandling ordinance on hold. “We’re waiting for the Portland outcome,” says city manager John Bubier. “We don’t want to fight the same battle.” He thinks Biddeford might fare better than Portland because “we don’t allow signs on the median.”
Bubier says panhandlers on traffic islands raise concerns about not only public safety, but also liability. “If someone steps off the median, a motorist slams on their brakes, and the third or fourth car gets rear-ended, who do you suppose the family of a victim is going to sue?” he says.
In Augusta, police chief Robert Gregoire took the unusual step of taking to the median himself in April to counter panhandlers who work the traffic rotaries at Memorial Circle and Cony Circle, on either side of the Kennebec River.
“There are regulars I have known since I joined the Augusta Police Department 26 years ago,” Gregoire says. “They have signs that say they are homeless, but they are not homeless.”
Believing that it is better for people to give money to social service agencies than to individuals on the street, Chief Gregoire took a vacation day and, dressed in civilian clothes, held up a cardboard sign reading “Really want to help someone? Many? Give to the Salvation Army, Bread of Life Ministries, local food banks. They won’t use your money to buy alcohol, tobacco, illicit drugs.”
Panhandling on medians has increased, Gregoire believes, “because people have been successful. I don’t think it’s about the economy.”
“Hunger is increasing. Panhandling is increasing. Of course, they are connected,” insists Amy Regan Gallant, director of advocacy at Preble Street Resource Center, the Portland social services agency that serves some 400 poor and homeless people a day. “What we need are systemic solutions. We’d like the Augusta police chief to be calling up to support SNAP [Supplemental Nutrition Assistance Program].”
“The Constitution protects his right to be out there just as it protects my clients’ rights,” says the ACLU’s Heiden of Gregoire’s one-man lobbying effort. “While I may disagree with his message, he has a right to his views.”
Bangor had a problem in Pickering Park with aggressive panhandlers who wouldn’t take no for an answer. Last year, the city passed an ordinance that banned “unreasonable, aggressive solicitation” and started police foot patrols in the downtown park. “Our ordinance hasn’t been challenged,” reports city manager Catherine Conlow, “and the problem seems to have gone away downtown.”
In Lewiston, deputy city administrator Phil Nadeau says that, though that city adopted a new ordinance dealing with aggressive panhandling last October, “I don’t think it’s received the attention in Lewiston that it has in Portland. It just hasn’t been as visible.”
And it is the visibility of pan-handlers that some believe is behind the attention being paid to trying to control them. While lawyers and judges defend freedom of speech and city officials and police work to protect public safety, advocates for the homeless argue that panhandling ordinances are part of a backlash against the poor that has seen housing, food stamps, Head Start, and general welfare programs cut at both the state and federal levels in recent years.
Heiden says the impetus for the Portland ordinance, whether it addresses panhandling or not, was a concern about panhandlers and not about safety. “People complained that too many beggars and too many panhandlers were bad for business, scared tourists, and were bad for Portland’s image,” Heiden says.
“That’s just not true,” responds Mayor Brennan. “The idea that somehow we are trying to remove people from public places so people don’t see the difficulty others have is not true.”
Amy Regan Gallant says that, while she believes the mayor and the police chief in Portland are sincerely concerned about public safety, “It’s not about safety for everyone. A few are concerned about the safety of the poor, but the vast majority are uncomfortable in their cars seeing someone suffer. The city wants them to move off the median, but they are just as poor on the sidewalk.”