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January 29, 2016 Articles

Reed v. Town of Gilbert: Upholding the Free Speech Ideals of the First Amendment

A Supreme Court decision on sign regulations extends to panhandling controls.

By Anannya Tripathy

Freedom of speech is a fundamental right embodied in the First Amendment of the Constitution of the United States of America. The First Amendment protects panhandling as speech, which means that any attempt by any government to circumscribe this right must survive a strict scrutiny analysis. The Supreme Court recently reaffirmed this in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), an appeal from the Ninth Circuit, in which it held that the provisions of an Arizona municipality’s code, imposing more stringent restrictions on signs directing the public to the meeting of a nonprofit group than on signs conveying other messages, constituted “content-based regulations of speech” that could not survive strict scrutiny. Id. at 2224.

On a microcosmic level, Reed struck down municipal regulations on the size, number, and location of signs a local church and its pastor wanted to display; on a macrocosmic level, it led to a surge in the number of courts that have stricken bans on panhandling, understanding such bans to be in violation of the new ruling. See Scott Keyes, “Courts Are Striking Back Against the Criminalization of Homelessness,”, Oct. 8, 2015.

This was because, after Reed, the Court vacated a First Circuit ruling that upheld an anti-panhandling ordinance in the city of Worcester, Massachusetts, and ordered the case to be reconsidered in light of ReedThayer v. Worcester, 135 S. Ct. 2887 (2015).

Concerns regarding the circumscription of free speech rights were at the forefront of many people’s minds in assessing the Reed decision as applied to Thayer. Many supported the Court’s contention that limitations on panhandling amount to an unallowable “content-based discrimination of speech.” Others who supported the invalidation of anti-panhandling ordinances in the aftermath of Reed claimed that, given the ongoing recession, municipalities that impose such ordinances are at fault for essentially criminalizing the homeless. Proponents of this position assert that these ordinances aim not to address homelessness, but rather to categorize and dehumanize people by ensuring that they stay out of certain areas. Colleen Slevin, “Supreme Court Free Speech Ruling Challenges Anti-Panhandling Laws,” Huffington Post, Nov. 2, 2015.

Panhandling has become an issue of ever-increasing concern. According to the National Law Center on Homelessness & Poverty (NLCHP), nearly 80 percent of cities banned panhandling in some locations in 2014, which is a 20 percent increase since 2011. NLCHP, No Safe Place: The Criminalization of Homelessness in U.S. Cities 20 (July 2014). Prior toReed, a number of municipalities enacted ordinances that banned panhandling in order to address the issue of their homeless populations. Some officials justified these measures by stating that, in addition to helping efforts against homelessness and promoting public safety, they also assist in the reduction of drug problems. Slevin, supra. However, some professionals have commented that panhandling laws have been written so broadly that many of them will be subject to change due to the Reed ruling. Other experts have opined that Reed could have implications beyond its application to sign and panhandling laws, including the regulation of advertising, securities, and communications. While some believe that Reed will result in positive implications for the Free Speech Clause of the First Amendment, certain scholars remain wary, stating that the ruling itself was written so broadly as to also apply to commercial speech. Id.

While many courts have required changes in laws, not all municipalities have been cooperative in amending or abrogating their anti-panhandling ordinances. However, the courts have applied Reed in disputes over these laws. The city of Springfield, Illinois, sought to enforce limitations on panhandling near Abraham Lincoln’s house, a major tourist attraction, via an ordinance protecting the city’s “downtown historic district.” Upon rehearing after a prior appeal in which it upheld the ordinance, the Seventh Circuit remanded for entry of an injunction consistent with ReedNorton v. City of Springfield, No. 13-3581 (7th Cir. Aug. 7, 2015). The federal district court in Colorado, in line with Reed, ruled that it was unconstitutional to prevent individuals from asking for money after dark, or under other circumstances, because doing so amounted to singling out a type of speech—asking for money—for special treatment without a compelling reason. Browne v. City of Grand Junction, No. 1:14-cv-00809-CMA-KLM (D. Colo. Sept. 30, 2015). In the previously noted case of Thayer v. Worcester, 755 F.3d 60 (1st Cir. Nov. 2014), the First Circuit Court of Appeals upheld the denial of an injunction banning the enforcement of the Worcester ordinance against panhandling, which created numerous “buffer zones” in which the activity was prohibited. As noted, the Supreme Court vacated the First Circuit’s ruling so that the appellate court could reconsider based on Reed. Peter Urban, “Supreme Court Sends Worcester Panhandling Ordinance Back to Lower Court,”, June 30, 2015.

Post-Reed, Worcester officials planned to fight to keep the limits banning panhandling near bus stops and automated teller machines. The city solicitor advocated upholding the ordinance, stating that it seeks to prevent behavior that gives rise to “an inherently dangerous, assaultive situation.” Id. He also stated that the ordinance is content-neutral. Id.

Nonetheless, in Reed, the Supreme Court confirmed that laws regulating speech are subject to the strictest scrutiny when they focus on the content of the speech. In light of these decisions, Worcester cannot legally create areas within the city in which panhandling, but not other kinds of speech, are prohibited. Id.

Under Reed, panhandlers have been and still will be able to hold signs to solicit donations. Ultimately, laws that simply designate where signs can or cannot be displayed or where panhandling can or cannot take place could be valid under the Reed holding, as long as they contain reasonable restrictions as to time, place, and manner, long a basic principle of free speech jurisprudence. See Clark v. Cmty. for Creative Nonviolence, 468 U.S. 288, 293, 104 S. Ct. 3065 (1984) (citations omitted). The question of whether or not the First Amendment should be circumscribed will always be contentious, even when doing so might serve a valid purpose, such as promoting public safety. However, the spirit of the First Amendment’s Free Speech Clause is to protect speech, in its various forms, by allowing only the utmost necessary limitations on it. In holding that content-based regulation of speech cannot survive strict scrutiny, the Supreme Court in Reed kept the free speech ideals of the First Amendment alive.

Keywords: litigation, access to justice, free speech, signs, panhandling, strict scrutiny, First Amendment

Anannya Tripathy is a second-year student at Temple University James E. Beasley School of Law. She is co-president of the North American South Asian Law Students Association (NASALSA) and an editor of the Access to Justice Committee newsletter.

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