Hoppy Kercheval, Opinion

Is panhandling protected speech or conduct that can be regulated?

Monongalia County is moving ahead with plans to restrict panhandling. The proposed ordinance would make it unlawful to ask for money or distribute materials to “the drivers of motor vehicles or their passengers … on highways within the unincorporated areas of the county.”  

County Commission President Tom Bloom is pushing the ordinance after repeated complaints from motorists about panhandlers standing on concrete highway dividers and asking for money. “You have innocent people being harassed, and government has a responsibility to protect individuals from unwanted and aggressive behavior,” Bloom told me during a Talkline appearance in April. 

However, crafting an anti-panhandling ordinance that will pass constitutional muster is tricky, and the legal landscape is filled with court cases on both sides, depending on the specifics of the law and the opinion of the court. 

Generally, courts have found that solicitation is a form of speech protected by the First Amendment to the Constitution, and that streets and medians qualify as public forums. However, as with all rights, there are exceptions. 

For example, can the government entity that passed the ordinance demonstrate that it has a compelling interest to restrict panhandling? The argument might be that panhandling is a public hazard or that aggressive panhandling interferes with an individual’s freedom of movement. 

Bloom can make the argument that drivers are distracted by the roadway panhandlers, resulting in a risk to motorists and the individual who is soliciting. 

Also, there is the captive audience doctrine. Anthony Lauriello wrote in the Columbia Law Review on panhandling that an issue with the First Amendment protection arises “when people cannot avoid expression — when they are captive to speech they find disturbing or unsettling.” Sitting in your car at a stoplight might qualify. 

Bloom also likes to point out that Monongalia County is flush with services for people in need. He sent me a resource guide from the local United Way Family Resource Network listing eight pages of free services, ranging alphabetically from an AIDS Hotline to a Veteran’s Crisis Line. 

The list included a dozen local pantries that hand out food, personal hygiene items, baby products and more. There were 13 listings for emergency housing assistance and furnishings. 

So, individuals do not need to panhandle, unless they want the money for something other than life’s necessities. Notably, the proposed Monongalia County ordinance says the government may conduct outreach programs “to connect individuals in need with social services, shelters and support groups.”  

However, the abundance of services, while helpful to those in need, is likely irrelevant to what will inevitably be a legal fight over the Monongalia County ordinance if it passes. The question will be whether panhandling on county highways and intersections is protected speech or conduct subject to government regulation. 

Hoppy Kercheval is a MetroNews anchor and the longtime host of “Talkline.” Contact him at hoppy.kercheval@wvradio.com.