WA Supreme Court - 1st Amendment Protects Begging and Solicitation AT Intersections
It's not often that you will find this blog mentioning cases regarding criminal law. After all, we are a civil litigation firm. While we make sure our clients are taken care of if they are ever in need of criminal representation, we do not handle these cases ourselves.
So why this case? Well, it involves issues of First Amendment jurisprudence, which could, if improperly applied, subject municipalities to civil liability.
Willis was begging on a freeway onramp. Now, it is undisputed that freeway onramps are generally not public forums and speech may be restricted as to time, place, and manner. However, Lakewood's ordinance was worded a little differently. It restricted begging at freeway onramps.
There are two problems with this. First, the "at" part applied to the intersection before the onramp as well, which is a traditional sidewalk area and thus a traditional public forum. While it was undisputed that Willis was "in" the onramp, the Court cannot rewrite the statute, and thus it did not comply with the First Amendment.
The bigger problem is with the content restriction. While ordinances can limit the time, place, and manner of speech, it cannot restrict the content. I may not agree with a word that you say, but I can only restrict the time, place, and manner in which you say it.
Here, the statute prohibited begging, a form of solicitation. The United States Supreme Court has recently weighed in on this, and decided that restricting begging amounts to a content-based restriction, which is a First Amendment no-no, finding that content base restrictions include content regulated "by its function or purpose." Reed v. Town of Gilbert, U.S. , 135 S. Ct. 2218, 2227, 192 L. Ed. 2d 236 (2015). Further, other cases from various federal courts of appeals have found that solicitation of charitable contributions is protected.
Now, if the ordinance had prohibited all First Amendment activity in onramps, it presumably would have complied. The one thing I take issue with here is the Washington Supreme Court seemed to imply that one could restrict content based on a category (solicitation) and still comply with the First Amendment. Solicitation is still a function or purpose, and this would likely fail the Reed test.
So what do municipalities in Washington have to do now? Each city and county needs to take a good hard look at any anti-begging ordinances to ensure compliance with both Reed and Willis. In addition, any freeway based ordinances need to be reviewed to ensure they are not encroaching on the intersection prior to a freeway onramp, but only the onramp itself, which is not a public forum. Failure to do so in the future may not only lead to a waste of resources in the courts, but could create potential exposure to suit.