Gresham, Jimmy v. Peterson, Bart ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3770
Jimmy Gresham, on his own behalf
and on behalf of a class of those
similarly situated,
Plaintiff-Appellant,
v.
Bart Peterson, in his official capacity as
Mayor of the City of Indianapolis, Indiana,
and the City of Indianapolis, Indiana,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 99 C 1101--S. Hugh Dillin, Judge.
Argued March 30, 2000--Decided August 31, 2000
Before Harlington Wood, Jr., Easterbrook and Kanne,
Circuit Judges.
Kanne, Circuit Judge. Jimmy Gresham challenges an
Indianapolis ordinance that limits street begging
in public places and prohibits entirely
activities defined as "aggressive panhandling."
Gresham believes that the ordinance infringes his
First Amendment right to free speech and his
Fourteenth Amendment right to due process. The
city considers the ordinance a reasonable
response to the public safety threat posed by
panhandlers. The district court found that a
state court could construe the ordinance in such
a way to render it sufficiently clear and
specific and granted the city summary judgment on
Gresham’s request for a permanent injunction. We
affirm.
I. History
The parties have stipulated to the relevant
facts, which for the purposes of reviewing a
summary judgment motion, we accept as true. See
Cable v. Ivy Tech State College, 200 F.3d 467,
476 (7th Cir. 1999). In June 1999, the City of
Indianapolis amended an ordinance regarding
solicitation in public places. The ordinance,
which became effective on July 6, 1999, reads as
follows:
(a) As used in this section, panhandling means
any solicitation made in person upon any street,
public place or park in the city, in which a
person requests an immediate donation of money or
other gratuity from another person, and includes
but is not limited to seeking donations:
(1) By vocal appeal or for music, singing, or
other street performance; and,
(2) Where the person being solicited receives an
item of little or no monetary value in exchange
for a donation, under circumstances where a
reasonable person would understand that the
transaction is in substance a donation.
However, panhandling shall not include the act of
passively standing or sitting nor performing
music, singing or other street performance with
a sign or other indication that a donation is
being sought, without any vocal request other
than in response to an inquiry by another person.
(b) It shall be unlawful to engage in an act of
panhandling on any day after sunset, or before
sunrise.
(c) It shall be unlawful to engage in an act of
panhandling when either the panhandler or the
person being solicited is located at any of the
following locations; at a bus stop; in any public
transportation vehicle or public transportation
facility; in a vehicle which is parked or stopped
on a public street or alley; in a sidewalk cafe;
or within twenty (20) feet in any direction from
an automatic teller machine or entrance to a
bank.
(d) It shall be unlawful to engage in an act of
panhandling in an aggressive manner, including
any of the following actions:
(1) Touching the solicited person without the
solicited person’s consent.
(2) Panhandling a person while such person is
standing in line and waiting to be admitted to a
commercial establishment;
(3) Blocking the path of a person being
solicited, or the entrance to any building or
vehicle;
(4) Following behind, ahead or alongside a
person who walks away from the panhandler after
being solicited;
(5) Using profane or abusive language, either
during the solicitation or following a refusal to
make a donation, or making any statement,
gesture, or other communication which would cause
a reasonable person to be fearful or feel
compelled; or,
(6) Panhandling in a group of two (2) or more
persons.
(e) Each act of panhandling prohibited by this
section shall constitute a public nuisance and a
separate violation of this Code. Each violation
shall be punishable as provided in section 103-3
of the Code, and the court shall enjoin any such
violator from committing further violations of
this section.
City-County General Ordinance No. 78 (1999),
Revised Code of Indianapolis and Marion County
sec. 407-102. Section 103-3 provides that a
person convicted of violating the ordinance will
be fined not more than $2,500 for each violation.
The ordinance does not provide for imprisonment
of violators, except, of course, a past offender
who violates the mandatory injunction provided in
Paragraph (e) could be jailed for contempt.
Jimmy Gresham is a homeless person who lives in
Indianapolis on Social Security disability
benefits of $417 per month. He supplements this
income by begging, using the money to buy food.
He begs during both the daytime and nighttime in
downtown Indianapolis. Because different people
visit downtown at night than during the day, it
is important to him that he be able to beg at
night. Gresham approaches people on the street,
tells them he is homeless and asks for money to
buy food. Gresham has not been cited for
panhandling under the new ordinance, but he fears
being cited for panhandling at night or if an
officer interprets his requests for money to be
"aggressive" as defined by the law.
Gresham filed this class action shortly after
the ordinance took effect, requesting injunctive
and declaratory relief. Gresham moved for a
preliminary injunction barring enforcement of the
ordinance on the grounds that it was
unconstitutionally vague and violated his right
to free speech. The district court, after hearing
oral argument, notified the parties that it would
convert its order on the preliminary injunction
into an order on the merits. The parties filed
additional memoranda of law, but no additional
evidence. On September 28, 1999, the court
entered a final order denying the motion for
preliminary injunction and dismissing the case.
In the order, the district court construed the
list of six actions that constitute aggressive
panhandling as exclusive, eliminating the danger
that someone could be cited for other,
unenumerated acts. The court further ruled that
the proscription in Paragraph (d)(5) against
actions that make a person "fearful or feel
compelled" was not unconstitutionally vague
because it could be interpreted to mean "fear for
his safety or feel compelled to donate." The
court held that because the ordinance was civil
in nature and the actions prohibited under
aggressive panhandling were not related to speech
interests, no intent element was necessary.
Finally, the court found the ordinance to be a
valid content-neutral regulation under Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460
U.S. 37 (1983).
II. Analysis
On appeal, Gresham raises two principal
arguments. First, he contends that the provisions
defining aggressive panhandling are vague because
they fail to provide clear criteria to alert
panhandlers and authorities of what constitutes
a violation and because they fail to include an
intent element. Second, he argues that the
statute fails the test for content-neutral time,
place and manner restrictions on protected
speech. We review de novo the question of whether
a state law violates the Constitution. See
Scariano v. Justices of Supreme Court of Ind., 38
F.3d 920, 924 (7th Cir. 1994).
A. The First Amendment
Laws targeting street begging have been around
for many years, but in the last twenty years,
local communities have breathed new life into old
laws or passed new ones. Cities, such as
Indianapolis, have tried to narrowly draw the
ordinances to target the most bothersome types of
street solicitations and give police another tool
in the effort to make public areas, particularly
downtown areas, safe and inviting.
While the plaintiff here has focused the
inquiry on the effects of the ordinance on the
poor and homeless, the ordinance itself is not so
limited. It applies with equal force to anyone
who would solicit a charitable contribution,
whether for a recognized charity, a religious
group, a political candidate or organization, or
for an individual. It would punish street people
as well as Salvation Army bell ringers outside
stores at Christmas, so long as the appeal
involved a vocal request for an immediate
donation.
The ordinance bans panhandling by beggars or
charities citywide on any "street, public place
or park" in three circumstances. First, it would
prohibit any nighttime panhandling. sec. 407-
102(b). Second, it would prohibit at all times--
day or night--panhandling in specified areas.
sec. 407-102(c). Third, it would prohibit
"aggressive panhandling" at all times. sec. 407-
102(d)(1)-(6). The defendants emphatically point
out that the ordinance allows a great deal of
solicitation, including "passive" panhandling,
which does not include a vocal appeal, street
performances, legitimate sales transactions and
requests for donations over the telephone or any
other means that is not "in person" or does not
involve an "immediate donation." Under the
ordinance, one could lawfully hold up a sign that
says "give me money" and sing "I am cold and
starving," so long as one does not voice words to
the effect of "give me money."
Several courts before us, as well as many
commentators, have grappled with understanding
panhandling laws in light of the First Amendment
guarantee of free speech and the constitutional
right to due process. See, e.g., Smith v. City of
Fort Lauderdale, 177 F.3d 954 (11th Cir. 1999);
Loper v. New York City Police Dep’t, 999 F.2d 699
(2d Cir. 1993). To this point, the Supreme Court
has not resolved directly the constitutional
limitations on such laws as they apply to
individual beggars, but has provided clear
direction on how they apply to organized
charities, not-for-profits and political groups.
See Riley v. National Fed’n of the Blind of North
Carolina, Inc., 487 U.S. 781, 789 (1988);
Secretary of State of Md. v. Joseph H. Munson
Co., 467 U.S. 947, 959-60 (1984); Village of
Schaumburg v. Citizens for a Better Environment,
444 U.S. 620, 632 (1980).
To the extent the Indianapolis ordinance could
be enforced against organized charities, such as
the United Way, Salvation Army or others, the
Supreme Court’s holding in Schaumburg would
control resolution of the case. In Schaumburg,
the Supreme Court considered a local prohibition
on solicitation by charities that did not use a
certain percentage of their contributions for
charitable purposes. 444 U.S. at 623-24. As a
threshold consideration, the Court determined
that solicitations by organized charities were
entitled to First Amendment protection. Id. at
632. The Court found that charities often engage
in core First Amendment speech while soliciting
donations, and that without such appeals for
support, the flow of information on many social,
economic, political and cultural topics would
cease. As such, the solicitations by organized
charities were "within the protection of the
First Amendment" although "subject to reasonable
regulation." Id.
The Court placed charitable solicitations by
organizations in a category of speech close to
the heart of the First Amendment, and
distinguished it from "purely commercial speech"
which is "primarily concerned with providing
information about the characteristics and costs
of goods and services." Id. Commercial speech, on
the other hand, has been placed lower in the
First Amendment food chain, somewhere between
political speech and pornography. It deserves
protection, but authorities are more free to
regulate commercial speech than core-value
speech.
Other courts examining issues similar to those
at hand did not distinguish between solicitation
for organized charities and solicitation by
individual beggars. The Eleventh Circuit held
that "[l]ike other charitable solicitation,
begging is speech entitled to First Amendment
protection." Smith, 177 F.3d at 956 (citing
Schaumburg, 444 U.S. at 632). The Second Circuit
likewise held that for First Amendment purposes,
the distinction between begging for a charity and
begging for one’s self is not significant. Loper,
999 F.2d at 704. "We see little difference
between those who solicit for organized charities
and those who solicit for themselves in regard to
the message conveyed." Id. Both Smith and Loper
held that limitations on panhandling must be
analyzed under the same Schaumburg framework as
limitations for charities. Smith, 177 F.3d at
956; Loper, 999 F.2d at 704.
Indeed, the Court’s analysis in Schaumburg
suggests little reason to distinguish between
beggars and charities in terms of the First
Amendment protection for their speech.
Solicitation, the Court reasoned, "is
characteristically intertwined with informative
and perhaps persuasive speech" which the First
Amendment protects. Schaumburg, 444 U.S. at 632.
Because they are intimately connected,
solicitation cannot be restricted without also
risking the flow of information. Importantly, the
Schaumburg Court expressly rejected the
suggestion that the message and the solicitation
could be considered severable. Id. at 628-32. The
village had argued that the ordinance prohibited
only the request for money and left the charity
free to propagate its views, but the Court called
this view of the First Amendment protection for
solicitors "too limited." After extensively
reviewing its own case law on the subject, the
Court held that restrictions on a charity’s
request for money necessarily implicate
restrictions on speech itself. Id. at 632.
Similarly, the Indianapolis ordinance protects
the communication of ideas by solicitors and
limits only the bare request for cash. Yet the
two can be closely intertwined. Beggars at times
may communicate important political or social
messages in their appeals for money, explaining
their conditions related to veteran status,
homelessness, unemployment and disability, to
name a few. Like the organized charities, their
messages cannot always be easily separated from
their need for money. While some communities
might wish all solicitors, beggars and advocates
of various causes be vanished from the streets,
the First Amendment guarantees their right to be
there, deliver their pitch and ask for support.
See Schaumburg, 444 U.S. at 632 ("[C]haritable
appeals for funds, on the street or door to door,
involve a variety of speech interests . . . that
are within the protection of the First
Amendment."). Neither the parties to this appeal
nor any authorities found by this Court suggest
we should distinguish between restrictions on
organized charities and individuals for purposes
of understanding the First Amendment guarantees.
Therefore, assuming for the purposes of this
appeal that some panhandler speech would be
protected by the First Amendment, we find that
Schaumburg provides the appropriate standard to
analyze this claim./1
After recognizing a First Amendment right to
solicit money in public places, the Schaumburg
Court held that a government may enact
"reasonable regulations" so long as they reflect
"due regard" for the constitutional interests at
stake. 444 U.S. at 632. The parties assume that
the proper analysis to determine whether the
Indianapolis ordinance is one such reasonable
regulation is that set out for "time, place and
manner" restrictions in Perry, 460 U.S. at 45.
Because the Indianapolis ordinance does not ban
all panhandling, we agree that the law could be
understood as a time, place or manner regulation.
See Cantwell v. Connecticut, 310 U.S. 296, 304
(1940). Under Perry, governments may "enforce
regulations of the time, place and manner of
expression which are content neutral, are
narrowly tailored to serve a significant
government interest, and leave open ample
alternative channels of communication." 460 U.S.
at 45. Other courts considering restrictions on
solicitation also have applied the time, place,
manner analysis from Perry. See Smith, 177 F.3d
at 956; ISKCON of Potomac, Inc. v. Kennedy, 61
F.3d 949, 953 (D.C. Cir. 1995); Loper, 999 F.2d
at 704-05.
Colorable arguments could be made both for and
against the idea that the Indianapolis ordinance
is a content-neutral time, place or manner
restriction. The Supreme Court has held that
"[g]overnment regulation of expressive activity
is content neutral so long as it is ’justified
without reference to the content of the regulated
speech.’" Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989) (citation omitted). To help apply
this somewhat circular definition, the Court
instructed that the principal inquiry is "whether
the government has adopted a regulation of speech
because of disagreement with the message it
conveys." Id. In City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 428-29 (1993), the
Court held that a ban on newsracks containing
commercial handbills but not newspapers was
content-based because "whether any particular
newsrack falls within the ban is determined by
the content of the publication resting inside
that newsrack." Similarly here, whether a
solicitor violates the ordinance depends on
whether he asked for cash rather than for
something else. On one side of the argument, the
city ordinance does not prohibit all solicitation
on city streets, only solicitations for immediate
cash donations. One could, for instance, ask
passers-by for their signatures, time, labor or
anything else, other than money. Only by
determining the specific content of a solicitor’s
speech could authorities determine whether they
violated the ordinance, which would seem to be a
content-based restriction. See id. at 429; Ward,
491 U.S. at 791. But as Ward and more recently
Hill v. Colorado, 120 S. Ct. 2480, 2491 (2000),
emphasized, the inquiry into content neutrality
in the context of time, place or manner
restrictions turns on the government’s
justification for the regulation. Because the
parties here agree that the regulations are
content neutral, we need not decide whether the
Indianapolis ordinance can be justified without
reference to the content of the regulated speech.
Thus the Indianapolis ordinance should be upheld
if it is narrowly tailored to achieve a
significant governmental purpose and leaves open
alternate channels of communication.
The city has a legitimate interest in promoting
the safety and convenience of its citizens on
public streets. See Madsen v. Women’s Health
Center, 512 U.S. 753, 768 (1994) (holding that
the state "also has a strong interest in ensuring
the public safety and order, in promoting the
free flow of traffic on public streets and
sidewalks . . ."); Heffron v. International Soc.
for Krishna Consciousness, Inc., 452 U.S. 640,
650 (1981) (recognizing state interest in safety
and convenience of citizens using public fora);
Cox v. New Hampshire, 312 U.S. 569, 574 (1941)
(recognizing state interest in safety and
convenience on public roads); Ayres v. City of
Chicago, 125 F.3d 1010, 1015 (7th Cir. 1997)
("There are unquestionable benefits from
regulating peddling, First Amendment or
otherwise, [including] the control of
congestion."). The plaintiff concedes this much,
but argues that a total nighttime ban on verbal
requests for alms is substantially broader than
necessary and therefore cannot be considered
narrowly tailored. However, a government
regulation can be considered narrowly tailored
"so long as the . . . regulation promotes a
substantial government interest that would be
achieved less effectively absent the regulation."
Ward, 491 U.S. at 799. This means the regulation
need not be a perfect fit for the government’s
needs, but cannot burden substantially more
speech than necessary. Id. at 800. Furthermore,
a time, place or manner restriction need not be
the least restrictive means of achieving the
government purpose, so long as it can be
considered narrowly tailored to that purpose. Id.
at 797.
The city determined that vocal requests for
money create a threatening environment or at
least a nuisance for some citizens. Rather than
ban all panhandling, however, the city chose to
restrict it only in those circumstances where it
is considered especially unwanted or bothersome--
at night, around banks and sidewalk cafes, and so
forth. These represent situations in which people
most likely would feel a heightened sense of fear
or alarm, or might wish especially to be left
alone. By limiting the ordinance’s restrictions
to only those certain times and places where
citizens naturally would feel most insecure in
their surroundings, the city has effectively
narrowed the application of the law to what is
necessary to promote its legitimate interest.
Finally, the plaintiff contends that the statute
fails to provide ample alternative channels of
communication. We disagree. An adequate
alternative does not have to be the speaker’s
first or best choice, see Heffron, 452 U.S. at
647, or one that provides the same audience or
impact for the speech. See Ward, 491 U.S. at 802;
Cornelius v. NAACP Legal Defense and Educational
Fund, Inc., 473 U.S. 788, 809 (1985) (holding
that in context nonpublic forum, an ample
alternative does not need to be the most
efficient one for speaker’s purposes). However,
the Court has "shown special solicitude for forms
of expression that are much less expensive than
feasible alternatives," City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789,
812 n.30 (1984), and so an alternative must be
more than merely theoretically available. It must
be realistic as well. See Linmark Assocs., Inc.
v. Township of Willingboro, 431 U.S. 85, 93
(1977). Furthermore, an adequate alternative
cannot totally foreclose a speaker’s ability to
reach one audience even if it allows the speaker
to reach other groups. See Bery v. City of New
York, 97 F.3d 689, 698 (2d Cir. 1996) (holding
that total ban on sidewalk art does not leave
open alternative means of communication because
alternative display in galleries or museums would
not reach the same audience.)
The Indianapolis ordinance allows many feasible
alternatives to reach both the daytime and
nighttime downtown Indianapolis crowds. Under the
ordinance, panhandlers may ply their craft
vocally or in any manner they deem fit (except
for those involving conduct defined as
aggressive) during all the daylight hours on all
of the city’s public streets. Gresham contends
that soliciting at night is vital to his
survival, a fact we do not dispute, but the
ordinance leaves open many reasonable ways for
him to reach the nighttime downtown crowd. He may
solicit at night, so long as he does not vocally
request money. He may hold up signs requesting
money or engage in street performances, such as
playing music, with an implicit appeal for
support. Although perhaps not relevant to street
beggars, the ordinance also permits telephone and
door-to-door solicitation at night. Thus to the
extent that "give me money" conveys an idea the
expression of which is protected by the First
Amendment, solicitors may express themselves
vocally all day, and in writing, by telephone or
by other non-vocal means all night. Furthermore,
they may solicit in public places on all 396.4
square miles of the city, except those parts
occupied by sidewalk cafes, banks, ATMs and bus
stops. This is a far cry from the total citywide
ban on panhandling overturned by the court in
Loper, 999 F.2d at 705 ("[A] statute that totally
prohibits begging in all public places cannot be
considered ’narrowly tailored.’"), or the total
ban on panhandling in a five-mile area of public
beach upheld by the court in Smith, 177 F.3d at
956.
B. Vagueness
Gresham next challenges certain provisions of
the ordinance as unconstitutionally vague.
Specifically, he contends that the definition of
aggressive panhandling in sections (d)(4) and
(d)(5) are not sufficiently clear to direct
authorities on the enforcement of the law, nor to
allow panhandlers such as Gresham to avoid
violating the law. Section (d)(4) prohibits
"[f]ollowing behind, ahead or alongside a person
who walks away from the panhandler after being
solicited." Gresham argues hypothetically that
police could cite a person for inadvertently
violating this section merely by walking in the
same direction as the solicited person, without
intending to engage in "aggressive panhandling."
Also, section (d)(5) refers to making a person
"fearful or feel compelled" without defining what
the terms mean in relation to panhandling. A
generalized guilt at economic inequality might
make one "feel compelled" even by the meekest
request for money.
The void-for-vagueness doctrine forbids the
enforcement of a law that contains "terms so
vague that [persons] of common intelligence must
necessarily guess at its meaning and differ as to
its application." Roberts v. United States
Jaycees, 468 U.S. 609, 629 (1984) (quoting
Connally v. General Construction Co., 269 U.S.
385, 391 (1926)). Legislative enactments must
articulate terms "with a reasonable degree of
clarity" to reduce the risk of arbitrary
enforcement and allow individuals to conform
their behavior to the requirements of the law.
Id. A statute that "vests virtually complete
discretion in the hands of the police" fails to
provide the minimal guidelines required for due
process. See Kolender v. Lawson, 461 U.S. 352,
358 (1983).
In assessing the constitutionality of an
allegedly vague state law or ordinance, "a
federal court must, of course, consider any
limiting construction that a state court or
enforcement agency has proffered." Village of
Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 494 n.5 (1982) ("Hoffman
Estates"); see also Roberts, 468 U.S. at 630-31;
Kolender, 461 U.S. at 355 & n.4. In this case,
the Indiana courts have not yet had an
opportunity to interpret the terms of the
Indianapolis ordinance, and so we have no
authoritative judicial construction of its terms.
See generally, Brownsburg Area Patrons Affecting
Change v. Baldwin, 714 N.E.2d 135, 141 (Ind.
1999) ("We have regularly said that courts have
an overriding obligation to construe our statutes
in such a way as to render them constitutional if
reasonably possible.") (internal quotation and
citations omitted). However, the rule that
federal courts should defer to state court
interpretations of state laws, see City of
Chicago v. Morales, 527 U.S. 41 (1999), also
discourages federal courts from enjoining
statutes that could be easily narrowed by a state
court to avoid constitutional problems. See
Erznoznik v. City of Jacksonville, 422 U.S. 205,
216 (1975) ("[A] state statute should not be
deemed facially invalid unless it is not readily
subject to a narrowing construction by the state
courts.") (citing Dombrowski v. Pfister, 380 U.S.
479, 497 (1965)). Therefore, we will not hold a
vague statute unconstitutional if a reasonable
interpretation by a state court could render it
constitutional in some application.
Laws must contain a "reasonable degree of
clarity" so that people of "common intelligence"
can understand their meaning. Roberts, 468 U.S.
at 629. Furthermore, because the penalties for
noncompliance are less severe, laws imposing
civil rather than criminal penalties do not
demand the same high level of clarity. See
Hoffman Estates, 455 U.S. at 498-99. Like the
civil sanction at issue in Hoffman Estates,
Gresham faces only a fine for noncompliance with
the Indianapolis law. However, this lowered
burden is mitigated by the fact that the
Indianapolis ordinance potentially interferes
with the right of free speech, suggesting that a
"more stringent vagueness test should apply." Id.
at 499 (citing Papachristou v. City of
Jacksonville, 405 U.S. 156, 162 (1972) and
Grayned v. City of Rockford, 408 U.S. 104, 109
(1972)).
The challenged provisions in this case define
what the City Council meant by the term
"aggressive panhandling" and must be read in that
context. The district court was rightly concerned
that Paragraph (d) could be construed as offering
an incomplete list of examples of prohibited
behavior, leaving open the possibility that other
unspecified actions might also be considered
illegal, which would raise serious due process
concerns. The district court suggested that the
list might be exclusive rather than illustrative,
a reasonable interpretation which, if adopted by
the Indiana courts, would save it from a
vagueness challenge.
Likewise, Paragraphs (d)(4) and (d)(5) are
subject to reasonable interpretations that answer
the vagueness challenge. A state court
interpreting Paragraph (d)(4) may read it to
prohibit "following" only in the context of a
continued request for money such that the victim
reasonably interprets the behavior as a threat.
A continuing request for a donation coupled with
"following" would be prohibited, but walking in
the same direction as the solicited person would
not be against the law if the walking were
divorced from the request. Construed this way,
the statute would prohibit the type of harassing
behavior that governments routinely outlaw. See,
e.g., Ind. Code sec. 35-45-2-1 (prohibiting as
intimidation a threat by words or action that
forces a person to engage in conduct against
their will); Ind. Code sec. 35-45-10-1
(prohibiting as stalking a "course of conduct
involving repeated or continuing harassment of
another person that would cause a reasonable
person to feel terrorized, frightened,
intimidated, or threatened."); Johnson v. State,
648 N.E.2d 666, 670 (Ind. Ct. App. 1995)
(upholding stalking statute against vagueness
challenge). Numerous cases hold that governments
may proscribe threats, extortion, blackmail and
the like, "despite the fact that they criminalize
utterances because of their expressive content."
United States v. Hayward, 6 F.3d 1241, 1259 (7th
Cir. 1993) (Flaum, J., concurring); see, e.g.,
Watts v. United States, 394 U.S. 705, 707 (1969)
(upholding constitutionality of law against
threatening life of the President); United States
v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985)
(holding that threats of physical violence are
not protected by First Amendment); see also
R.A.V. v. City of St. Paul, 505 U.S. 377, 420
(1992) (Stevens, J., concurring) (quoting
Frederick Schauer, Categories and the First
Amendment: A Play in Three Acts, 34 Vand. L. Rev.
265, 270 (1981)) ("Although the First Amendment
broadly protects ’speech,’ it does not protect
the right to ’fix prices, breach contracts, make
false warranties, place bets with bookies,
threaten, [or] extort.’").
Paragraph (d)(5) could be construed to prohibit
"any statement, gesture, or other communication"
that makes a reasonable person feel they face
danger if they refuse to donate, that they are
being compelled out of physical fear. The
possibility that a polite request for a donation
might be heard as a threatening demand by an
unusually sensitive or timid person is eliminated
by the "reasonable person" standard included in
the ordinance. A statement that makes a
reasonable person feel compelled to donate out of
physical fear amounts to a prohibition on robbery
or extortion, which of course would be
constitutional. While it is not a certainty that
the state courts would adopt constitutional
interpretations of the panhandling provisions,
they are entitled to the opportunity to do so,
and we will not interfere with that right. The
district court did not err in refusing to enjoin
the ordinance based on the vagueness concerns.
III. Conclusion
For the foregoing reasons, we Affirm the district
court’s denial of a permanent injunction and
dismissal of Gresham’s complaint.
/1 As an aside, we note that the Court in Schaumburg
distinguished solicitation from commercial
speech, which is "primarily concerned with
providing information about the characteristics
and costs of goods and services." 444 U.S. at
632. The Eleventh Circuit, noting that the
parties did not raise the argument, declined to
reach the issue of whether panhandling could be
considered commercial speech and therefore
subject to more regulation. See Smith, 177 F.3d
at 956 n.2. We too will follow that prudent
approach and not decide an issue the parties
declined to raise. See generally Robert C.
Ellickson, Controlling Chronic Misconduct in City
Spaces: Of Panhandlers, Skid Rows, and Public-
Space Zoning, 105 Yale L.J. 1165, 1229 (1996)
(discussing possibility of treating begging as
commercial speech). In any event, considering the
Supreme Court’s definition of commercial speech
as outlined in Schaumburg, we doubt panhandling
falls into this classification.