In an order that noted Americans exercising their First Amendment rights against racial inequality and quoting Frederick Douglass on the sacred right of free speech, a federal court issued a preliminary injunction Tuesday preventing Indiana’s new panhandling law from taking effect Wednesday.
“The amended version of the statute will effectively prohibit all panhandling — long established by the United States Supreme Court as a form of First Amendment expression — in downtown Indianapolis and other urban area within the state,” Southern Indiana District Court Chief Judge Jane Magnus-Stinson wrote in Indiana Civil Liberties Union Foundation et al. v. Superintendent, Indiana State Police, et al., 1:20-cv-01094.
“… Indiana’s panhandling statute, in both its pre-amendment form and as revised by the amendments that are to take effect on July 1, 2020, is an unconstitutional prohibition on the freedom of speech and its enforcement must be enjoined.”
In granting the plaintiffs’ motion, the court preliminary enjoined the enforcement of Indiana’s panhandling statute, both in its pre-amended form and as it was amended.
“Almost exactly 140 years ago, Frederick (Douglass) said, ‘No right was deemed by the fathers of the Government more sacred than the right of speech. … Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist. That, of all rights, is the dread of tyrants. It is the right which they first of all strike down,’” Magnus-Stinson wrote.
House Enrolled Act 1022, passed by the Indiana General Assembly during the 2020 session, places more restrictions on the state’s panhandling statute, Indiana Code section 35-45-17-2. Former Indiana Speaker Brian Bosma described panhandling in Indianapolis as “an organized shakedown.”
Shortly after Gov. Eric Holcomb signed the bill, the American Civil Liberties Unit of Indiana sued to block the new law.
“This preliminary injunction will help to protect the constitutional right of all, including vulnerable Hoosiers who appear to be the particular target of this law,” said Jane Henegar, executive director at the ACLU of Indiana. “The Indiana Legislature should be trying to remedy the reasons driving homelessness and joblessness. Criminalizing poverty is never a solution.”
Already Indiana Code section 35-45-17-2 prohibited panhandling at a bus stop or public transportation depot, in a motor vehicle parked or stopped on the street or alley and in the sidewalk dining area of a restaurant. Also, individuals soliciting money could not touch the other person, block the path of the other person, use abusive language or follow the other person.
The amended version placed further restrictions on panhandling. Individuals could not solicit within 50 feet of a public monument or of an ATM or the entrance to a bank, business, restaurant or the location where a financial transaction occurs. Moreover, the statute defined “financial transaction” to include parking meters, parking garages or parking lot pay stations and the pay stations operated by a public transportation authority.
The lawsuit was filed on behalf of the ACLU and three staff members who solicit donations on Monument Circle during the celebration of Constitution Day. Every year, the plaintiffs hand out small copies of the Constitution. The little books are free, but the organization does accept donations in return.
Plaintiffs fear that under the amended statute, they could not hand out copies of the Constitution in the same locations around the Circle as they have in the past. In fact, the plaintiffs believe the new law would effectively ban panhandling from virtually all of downtown Indianapolis, so they would not be able to celebrate Constitution Day.
Defendants countered the amended statute furthered compelling governmental interests. Those interests include promoting the safety and convenience of citizens on public streets and preventing disruption of business along with harassment and possible crimes such as battery, disorderly conduct and theft.
The court was not convinced. Pointing to the weakness of the defendants’ argument, the court said the case was not a close call.
“The problem, however, is that Defendants have not presented any evidence demonstrating that panhandling threatens these interests,” Magnus-Stinson wrote. “For example, they do not provide any statistics linking panhandling to disruptions to business, or showing that panhandling typically escalates to criminal behavior. And simply stating that individuals may not want to be approached for a solicitation is not enough to show a compelling interest.”