Kentucky Supreme Court weighs whether panhandling is free speech

Lexington’s controversial ordinance to ban panhandling should be declared unconstitutional because it singles out only one type of speech — begging on streets and intersections —and not others, such as selling Girl Scout cookies or performances by street musicians, a state public advocate told the Kentucky Supreme Court.

But assistant Fayette County Attorney John Jason Rothrock told the state’s highest court that the ordinance is needed to protect the safety of pedestrians and those in vehicles.

The seven justices of the state Supreme Court held oral arguments Friday on whether Lexington’s ordinance constitutes a violation of free speech and whether it can impose criminal penalties for its violation.

The case involves Dennis Champion, who has been arrested by Lexington police more than 125 times since 2007, mostly for violating the city’s panhandling ordinance. He has been arrested 23 times so far this year. He usually serves between two and five days in jail for violating the ordinance and the cycle restarts after he is released.

The alleged offense before the Supreme Court involves Champion standing at the corner of New Circle and Georgetown roads around rush hour on the evening of Dec. 8, 2014, holding a homemade sign asking for money. He was arrested and charged with violating the city’s panhandling ordinance, which was passed in 2007.

Champion’s public defenders first challenged the legality of the ordinance in Fayette District Court and lost. A Fayette Circuit Court judge then upheld the District Court’s decision.

The state Supreme Court agreed to hear the case earlier this year after the Kentucky Court of Appeals declined to review the lower courts’ rulings. The Kentucky chapter of the American Civil Liberties Union also filed a brief in support of Champion’s challenge, arguing that a 2015 U.S. Supreme Court case makes it clear that citywide bans on begging are unconstitutional.

Linda Horsman, an appellate attorney for the state Department of Public Advocacy, argued before the Supreme Court Friday that the Lexington-Fayette Urban County Government does not have the authority to determine which crimes are punishable by jail time.

She said a state law says only the Kentucky General Assembly can determine that. Rothrock, though, said another state law gives local governments that authority and that it prevails over the other law.

Horsman noted that a Jefferson District Court judge in Louisville on Thursday struck down Louisville’s panhandling ordinance on the grounds that any crime that carries the penalty of incarceration must be approved by the General Assembly.

Justice Lisabeth T. Hughes said it appears there are two “competing” statutes and that she was more interested in the argument that the right to panhandle is protected by the First Amendment’s freedom of speech provision.

Horsman noted that the ordinance applies only to panhandling and ignores such public practices as selling Girl Scout cookies and performances by street musicians seeking money.

The court should make clear that “our speech rights are paramount,” Horsman said.

The public advocate said there is no indication of traffic problems in Lexington because of panhandling.

Rothrock, who presented the public safety issue, was not able to answer Justice Hughes’ question about whether Champion was in the street or on the sidewalk when he was arrested.

Justice Bill Cunnigham said he has never seen a beggar standing in the middle of a roadway. It would be unwise to do that on Lexington’s New Circle Road, he said.

Justice Daniel J. Venters asked why the city could not approve an ordinance to make sure drivers can’t stop in traffic to “give a dollar” to someone.

“That’s a compelling question,” said Rothrock, adding that it may be an issue the Lexington-Fayette Urban County Council should investigate.

Justice Michelle M. Keller asked Rothrock whether street performers would be a bigger distraction to drivers than beggars.

“Maybe even more,” Rothrock said.

Similar citywide bans on begging and panhandling that have been challenged in federal courts have been found unconstitutional. Many of those decisions came after a U.S. Supreme Court decision in July 2015 that further clarified First Amendment law. That decision said governments that regulate speech based on what is said — content-based speech — must show a compelling government interest in order to do so.

It is uncertain when the Kentucky Supreme Court will rule.

This story was originally published October 14, 2016 at 11:46 AM with the headline "Kentucky Supreme Court weighs whether panhandling is free speech."