Untitled Texas Attorney General Opinion

QBfficeof tfy IBttornep Qkneral
&ate of QexaS
DAN MORALES
ATTORNEY
GENERAL December 4,199s
The Honorable Fred Hill Opiion No. DM-367
Chair
Committee on Urban Affairs Re: Constitutionality of the statute that
Texas House of Representatives permits local authorities to authoriae
P.O. Box 2910 persons to stand in roadways to solicit
Austin, Texas 781682910 certain charitable contributions but not
other contributions (RQ-794)
Dear Representative Hill:
You ask whether the 1989 amendment to what then was section 81(c) of V.T.C.S.
article 6701d and now is Transportation Code section 552.007(a)’ (the “1989
amendment” or the “amendment”) is unconstitutional. See Act of May 18, 1989, 71st
Leg., RS., ch. 342, 1989 Tex. Gen. Laws 13 10. You wish to know specifically whether a
local regulation or permit authorizing a person, pursuant to the 1989 amendment, to stand
in a roadway to solicit certain charitable contributions would violate free speech or equal
protection guarantees by pexmitting certain expressive conduct based on its content while
the statute prohibits other shnilar expressive conduct.
Before the amendment of section 81(c) in 1989, see id., the provision prohibited
all solicitation of contributions as follows: “No person shag stand in a roadway for the
purpose of soliciting a ride, contributions, employment or business from the occupant of
any vehicle.” V.T.C.S. art. 6701d, § 81(c) (Vernon 1977). The 1989 amendment
changed section 81(c) as follows: “A w] person nrqy not [shah] stand in a roadway for
the purpose of soliciting a ride, contributions, employment or business from the occupant
of any vehicle, excepl ihat a person may stand in a roadwq to solicit charitable
conm’buiions IYauthorized to do so by the loml author& having jurisdiction over the
rmdway.” Act ofMay 18, 1989, 71st Leg., R.S., ch. 342, 8 1, 1989 Tex. Gen. Laws
1310, 1310 (additions italicized; deletions stuck over and bracketed). The amendment
also provided that “[t]he definition of charitable organizations shall meet those established
by the federal Inte.rnal Revenue Service.” Id. 5 2(c)‘; see 26 U.S.C. 5 170(c) (defining
‘7%~seventy-fourthLegislaturehas ruxditled sation 81(c) as section 552.007(a)of the new
TransportationCede. See Aa of May 1, 1995,74th Leg., RS., ch. 165,sec. 1,s 552.007(a),1995Tex.
SeasLawScrv, 1025,1698. nKlegiskrhurinteadcdnosubstantivechangcinihelaw~theeaactmcat
of the TransportationCode. Id. 8 25, at 1871. The TransportationCode becameeffectiveOIISeptember
1, 1995. Id 8 27, at 1871.
=The Seventy-fourthlegislature bas codified sa%n 2(c) as Tnuqortatioa Code section
SS2.007(c), which now readsas follow%“In this ``tiotl,‘charitableW~IbiiOn' meanSB Conmbution
HonorableFredHill - Page 2 (DM-367)
ckri’rubfe contribution). The 1989 amendment thus permits certain charitable solicita-
tions ifthey are authorized by the local authority.
For the following reasons, we are of the opinion that the amendment is not valid
under the First and Fourteenth Amendments of the Constitution unless the amendment’s
discrimination against all other solicitation is narrowly drawn and necessary to serve a
compelling state interest. Because this determination involves questions of fact, we are
unable to decide in an attorney general opinion whether the statute is unconstitutional.
The Fist Amendment’s free speech guarantee protects solicitation of funds. Eg.,
Vikge of Schaumberg v. Citizens for a Berrer Environmenr 444 U.S. 620,629 (1980).3
Even begging or panhandling is sufficiently communicative to warrant First Amendment
protection:
Begging frequently is accompanied by speech indicating the need
for food, shelter, clothing, medical care or transportation. Even
without particularized speech, however, the presence of an unkempt
and disheveled person holding out his or her hand or a cup to receive
a donation itself conveys a message of need for support and
assistance. We see little difference between those who solicit for
organized charities and those who solicit for themselves in regard to
the message conveyed. The former are communicating the needs of
others while the latter are communicating their personal needs. Both
solicit the charity of others. The distinction is not a significant one
for Fii Amendment purposes.
Loper v. New York Ci@ Police Dep 7,999 F.2d 699,704 (2d Cir. 1993) (citation omitted).
Protected speech is subject, however, to a government’s “power to preserve the
property under its control for the use to which it is latily dedicated.” Greer v. .!$ock.
424 U.S. 828,836 (1976). The permissible extent of governmental regulation of access to
(footnotecolltinocd)
to an organizationddncd as charitableby the staodardsof the United StatesInternalRewme Service.”
See sec. 1, 5 %52.007(c),at 169%
%I VillageofSchaumburg, JosdccWhitewotc for the Comi as follows ~garding the eqxcsin
charaacristia of solicitationof money:
Soliciting 6oanciaI nrpportis oodoobtcdlysobjecl to n&FonableRgulatioo
hot the lancr mustbe ondenaken with doe regardfor lhe rcalilytha1solicitation
is chamcIerlsdcallyinterhkwd with informativeand pwheps pelxkvc SpCcclI
seeking sopport for pticolar caoses or for particulartinus on emoomi~
political, or social issoes, and for the realitythat without solicitationthe flow of
such informationsod adwcacy would likely cease. C~IIQWZIX in soch contexts
rm naxsarily morethan solicitorsfor moacy.
444 U.S. 620,632 (1980).
P. 1993
Honorable Fred Hill - Page 3 (DM-367)
its property for speech purposes varies depending on the nature of the forum. Cornelius
v. NAACPLegalDefense &E&c. Fund. Inc., 473 U.S. 788, 800 (1985).
The Supreme Court has developed three categories to analyze
expressive conduct in varying public forums, namely: 1) the
traditional public forum; 2) the quasi-public forum; and 3) the non-
public forum. Traditional public forums include those places
historically devoted to assembly and debate; quasi-public forums
consist of places the state has designated for open public discourse.
A state may regulate expressive conduct occurring in either of these
forums ifthe state demonstrates a compelling interest or implements
a valid time, place, and manner restriction. The third category
involves non-public forums, such as municipal buses or military
bases, within which the state may regulate expressive conduct if the
regulation is rationally based and content neutral.
V?densueh v. Aquino, 853 S.W.2d 512, 516-17 (Tex. 1993) (Gonzales, J., dissenting)
(citations omitted).
It is settled law that streets are traditional public forums. E.g., hited States v.
Grace, 461 U.S. 171, 177 (1983). A governmental authority has the responsibility to
impose nondiscriminatory restrictions necessary to promote movement on streets, and
such restrictions “cannot be disregarded by the attempted exercise of some civil right
which, in other circumstances, would be entitled to protection.” Cox v. Louisiunu, 379
U.S. 536, 554-55 (1965). The Supreme Court has set forth the constitutional standards
applicable to regulation of speech in streets and parks as follows:
In places which by long tradition or by government Sat have
been devoted to assembly and debate, the rights of the state to limit
expressive activity are sharply circumscribed. At one end of the
spectrum are streets and parks which “have immemorially been held
in trust for the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.” In these quintessential
public forums, the government may not prohibit all communicative
activity. For the state to enforce a content-based exclusion it must
show that its regulation is necessary to serve a compelling state
interest and that it is narrowly drawn to achieve that end. The state
may also 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.
Perry &i~c. Ass’n v. Peny Local ticarors’ Au’n, 460 U.S. 37, 45 (1983) (quoting
Hague v. CIO, 307 U.S. 496,515 (1939)) (citations omitted).
P. 1994
HonorableFredHiU - Page 4 (DM-367)
The first standard quoted above from Perry, the one applicable to content-based
exclusions, appears to be essentially the same as the standard applicable under the Equal
Protection Clause of the Fourteenth Amendment. The Supreme Court held in Gzrey v.
Brown, 447 U.S. 455,461-62 (1980): “When government regulation discriminates among
speech-related activities in a public forum, the Equal Protection Clause mandates that the
legislation be finely tailored to serve substantial state interests, and the justifications
offend for any distinctions it draws must be carefully scrutinize-d.” If the State class&s
personsina marmex that discriminatorily affects their exercise of fundamental rights, it
must show a compelling interest to justify the classiiication. See Dunn v. Blmstein, 405
U.S. 330, 335-36 (1972). Free speech rights are fimdamental; therefore the wmpellmg-
interest test applies to classilications based on speech. City of Angeles Mission Church v.
Ci& of Houston, 716 F. Supp. 982,986 (S.D. Tex. 1989); Houston Chronicle Publishing
Co. v. Ci@ of Houston, 620 S.W.2d 833, 838 (Tex. Civ. App.--Houston [14th Dist.]
1981, no writ). To pass muster under the Equal Protection Clause, the State must also
show that the classification is necessary to promote the compelling interest. Ci@ of
Angeles Mission Church, 716 S. Supp. at 986; Houston Chronicle Publishing Co., 620
S.W.2d at 838; see Dunn, 405 U.S. at 337.
With these principles in mind, we now proceed to analyze the amendment’s
exception of certain charitable contributions from its general prohibition against
solicitation of contributions.’ Transportation Code section 552.007(a) restricts both the
*ou do not question,and we do not consider,the wnsthutionalityof the gacml prohibitionof
section 552.007(a) against standing in a roadway10 “solicit[] a ride., centriions, employmentor
bosbms from the oeoupaotof any vehicle.” We assumefor purposesof your requestthat the pmhibition
is constih~tionaIIy
valid. We no&that the followingCBSQ deal with similarprohibitions:
In lntemationaf Sock@ for k%htw Cortsciousne$.v of NW Orkats, Inc. v. City of Baton Rouge,
876 F.2d 494 (5tb Cir. 1989).Ihe court upheld,as a valid place ticlion under the First Ama&na& a
city and parish ordinance that wmpletely banaed solicitation of cmpleyment,business, or cbarilable
wnttibotions Corn owopanls of vehicles by personson suuts or madwaysor on shouldersor neulml
grcnmdsofstreetsormadways. Disagrrcingwiththeargumentthattheordi-wasnotnarrowly
tailoral``itappIiodtoallstnetsand~without``toaaffrcspeeQwidthofncutral
gmmd, or presenceof stop signals,the court found (hat the evidencesupportedthe trial comt’s finding
that lbere wss no way to make sokitation safe on any strwt or madmy. Id. at 498.
Likewise,in ACORN Y. Ciry of Phoenix, 798 F.2d 1260(9th Cir. 196%).the court upheld.,as a
valid place restriction,a Phaenixordinancethat pmhiiiitcdstandingon a streelor highwayand soliciting
employment,business,or mntributionsfrom vehicle oaupanu. The court wncludul that the o&nance
was``tailoredbascdonthetrialcwrt’sfindingthetthcmmp~ onthcr&waysofpersons
solicitingwnhibutions and distrilbutinglitemturcposeda safetykard. Id. a1 1270. AlIhoughthe city’s
evidenw did not directly r&i& all of ACORN’sevidence that purportcdy showed many specific
iotuwdons where solicitation could occur safely, the onut found suppon in the sword for the nial
ooort’sfindingbasedon testimonythat solicitationgenerallyposeda tmfIichazard. Id. a11269-70.
Compare Houston Chronicle Publishing Co. Y. City of Houston, 620 S.W.Zd833 flex. Civ.
App.-Houston [14th Dii] 1981,110tit), in which the court wncludcd that a Houstonordinancethat
banmdsalaofncwspapmtooaupantsofvehiclerlocaWlina~oronanyothcrpublicpmpatywas
uwonstltutiooallyeverbroadwder the First Amendmentkcausz it appliedto all “motorv&icles located
P. 1995
HonorableFredHill - Page 5 (DM-367)
place (“in a roadway”) and the manner (“from the occupant of any vehicle”) of speech.
Therefore, the contribution-solicitation portion of section 552.007(a) can be valid only ifit
passes one of two tests: (1) it is “content-neutral, [is] narrowly tailored to serve a
signiticant government interest, and leave[s] open ample alternative channels of
wmmunication,” Perry Educ. Ass’n, 460 U.S. at 45 (collecting authorities), or (2) it “is
necessary to serve a compelling State interest and. is narrowly drawn to achieve that
interest,” Cornelius, 473 U.S. at 800; Peny Educ. Ass’n, 460 U.S. at 45.
For purposes of the first test, “content-neutral” speech restrictions are “those that
‘are justified without refbrence to the content of the regulated speech.’ virginicl
Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S. Ct.
1817, 1830, 48 L. Ed. 2d 346 (1976) (emphasis added).” Cify of Renton v. Playtime
X%xrfres, Inc., 475 U.S. 41, 48 (1986). Thus, for example, an ordinance that prohibits
adult movie theaters from locating within a certain distance from homes, churches, parks,
or schools may pass muster if the restriction is aimed at preventing crime, protecting retail
business, maintaining property values, and dealing with other secondary effects of the
theaters rather than suppressing the showing of adult movies because they are
wntroversial or objectionable. See id.
We believe the 1989 amendment fails the first test as a matter of law because it is
content-based. The amendment describes permissible solicitation in terms of the subject of
the solicitation, that is, charitable contributions. Furthermore, although the question of
content-neutrality will usually involve factual analysis, we believe that the discrimination
between charitable solicitation and other solicitation simply cannot be justified under any
set of facts without reference to the content of the solicitation. Generally, solicitation of
contributions from vehicle occupants poses substantial trr&c safety wncerns:
Unlike oral advocacy of ideas, or even the distribution of literature,
successful solicitation requires the individual to respond by searching
for currency and passing it along to the solicitor. Even after the
solicitor has departed, the driver must secure any change returned,
replace a wallet or close. a purse, and then return proper attention to
the full responsibilities of a motor vehicle driver. The direct personal
solicitation from drivers distracts them from their primary duty to
watch the traflic and potential hazards in the road, observe all trafEc
control signals or warnings, and prepare to move through the
intersection.
ACORN v. City of Phoenix, 798 F.2d 1260, 1269 (9th Cii. 1986). These. wncerns are no
less substantial when the solicited contribution is intended for a qualified charitable
(foomotcamtinucd)
011public property, including residential ncighbrhoods rrgardlas of the time of day or night and
regsrdlessof whetherthe carsare moving, standing,parkedor even not in the trafliclanes.” Id. at 837.
P. 1996
HonorableFreclHill - Page 6 (DM-367)
organization under section 55 2.007(a). The only justification for the exception for
charitable contributions-that the benefit accruing from collection of charitable funds
outweighs the risk of harm from allowing solicitors to stand in traffic lanes-is based on
the primmy impact of the solicitation, not on any relatively more adverse secondary
effects of other solicitation. Put another way, such a justification is based on
impermissible discrimination between subjects of speech based on perceived differences in
the value of the messages themselves. Because the 1989 amendment fails the content-
neutrality prong of the test for time, place, and manner restrictions, we need not consider
the other two prongs of the first test: whether the restriction is narrowly tailored to serve
a signiticant government interest and leaves open ample alternative chant& of
communication.
We therefore now consider whether the 1989 amendment passes the second test
set forth above. As a content-based prohibition on solicitation, the amendment must be
narrowly drawn and necessary to achieve a compelling state interest. See Peny E&c.
Ass’n, 460 U.S. at 46; Widmar v. Vinceni, 454 U.S. 263,269-70 (1981); Dunn, 405 U.S.
at 337; City ofAngeles Mission Church, 716 F. Supp. at 986. The Supreme Court has
engaged in “the most exacting scrutiny in cases in which a State undertakes to regulate
speech on the basis of its content.” Widnar, 454 U.S. at 276. Questions of fact are
integral to the determination of the necessity of this discrhninatory prohibition to achieve a
compelling interest and of its tailoring in achieving that interest. Because we are not
authorized to determine questions of fact in an attorney genera) opinion, we may not
decide whether the amendment passes the second test of its wnstitutionality.
SUMMARY
The 1989 amendment to what then was section 81(c) of
V.T.C.S. article 6701d and now is Transportation Code section
552.007(a) (the “amendment”), which amendment permits local
authorities to authorize persons to stand in roadways to solicit
certain charitable contributions but prohibits solicitation of other
contributions, Act of May 18, 1989, 71st Leg., RS., ch. 342, 1989
Tex. Gen. Laws 1310, establishes a content-based speech restriction.
The amendment therefore is not valid under the Fii and Fourteenth
Amendments of the Constitution unless the provision’s discrimination
against all solicitation other than certain charitable solicitation is
narrowly drawn and necessary to serve a compelling state interest.
DAN MORALES
Attorney General of Texas
p. 1997
HonorableFredHill - Page 7 (DM-367)
JORGE VEGA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opiion Committee
Pmpared by James B. Pmson
Assistant Attorney General
p. 1998