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Judge Blocks Boise Anti-Street Solicitation Ordinance

By Patrick Sullivan - January 3, 2014

A federal judge has blocked implementation of a street solicitation ordinance in Boise, Idaho, at least initially agreeing with the American Civil Liberties Union of Idaho (ACLUI) and the National Law Center on Homelessness and Poverty (NLCHP) . U.S. District Federal Court Judge Edward J. Lodge ruled the ordinance violates the First Amendment rights of street solicitors.

“Certainly, the First Amendment can lead to public inconvenience and annoyance, but such is a minor price to pay when the non-aggressive solicitations at issue can easily be ignored or avoided,” wrote Lodge in the decision. “The public’s interest in restricting a person from asking for money in a non-aggressive manner does not outweigh a person’s right to make a request for a charitable contribution.”

The ACLUI and the NLCHP represented two homeless men, Larry Shanks and Troy Minton. Shanks, a street performer, and Minton, a panhandler, said the ordinance violated their First Amendment right to free speech, as well as the equal protection clause under the Fourteenth Amendment. They also argued the ordinance is unconstitutionally vague.

“While it is true City’s purpose in passing the ordinance appears to be focused on reducing ‘panhandling’ versus fundraising by non-profit organizations, the wording of the ordinance could arguably be applied to consensual solicitation efforts by non-profit organizations on sidewalks and sidewalk cafes in downtown Boise,” wrote Lodge in the decision.

Lodge enjoined the city of Boise from enforcing the ordinance on public property, public transportation and private property that is open to the public. He did not enjoin the city from enforcing the ordinance on roadways or on private property that is not open to the public or aggressive solicitation.

“The City of Boise is pleased that the court’s ruling did not affect two key portions of the ordinance, those banning aggressive solicitation and solicitation in the roadway,” said Michael Zuzel, a spokesman for Boise Mayor Dave Bieter via a statement. “Although the ordinance was to go into effect (January 2), the City’s plan has always been to emphasize education rather than enforcement for the first several months. The Mayor and City Council will review the court’s ruling before determining next steps.”

According to the decision, the ordinance was passed in September 2013 due to the concerns of Boise residents and business owners that panhandling has been on the rise in the city in recent years. The ordinance defined solicitation as speech aimed to garner “money or other thing of value,” according to the decision. The ordinance would not have restricted solicitation of petition signatures or other actions.

“We are grateful that the Court validated the concerns of the plaintiffs and upheld the constitutional right to free speech,” said ACLUI legal director Richard Eppink, via a statement. NLCHP director of human rights and children’s rights programs Eric Tars said “We thank Judge Lodge for affirming what numerous other courts and the federal government have already said numerous times.” Neither the ACLUI nor the Washington, D.C.-based NLCHP responded to requests for further comment.

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