But even though the Metro Law Department has determined the anti-panhandling bill may violate free speech rights and should be neutered, sources say Dean is preparing to let the proposal become law without his signature next week. The mayor could veto the bill and tell the council to pass one that’s acceptable to him—or not at all. But instead he’s ready to trust the bill’s sponsors to amend the ordinance after it becomes law to meet his objections.
“It’s about working together, meeting and making a decision together,” Dean press secretary Janel Lacy says. She adds that any final decision depends on a meeting this week between the bill’s sponsors and the mayor’s office. But Metro Law Director Sue Cain predicts, “I think this will go into effect without the mayor’s signature. It’ll become law and then we will help them draft an amendment. I believe in people’s good intentions and their good faith, and I think they will go ahead and pass” the amendment proposed by Dean.
To be fair to Dean, he’s in his first few months as mayor and needs to maintain cordial relations with the council, whereas Purcell was in his last year in office and feeling unusually brave because he wasn’t running for reelection.
Dean may keep the council happy, but if he lets the bill become law, then the council might decide later not to change it, in which case the city could wind up paying a small fortune defending the ordinance in court. And Dean would have failed the first test of whether he’s willing to spend a little political capital from time to time to save the city from the periodic stupidities and outrages of the council, which voters were counting on him to do.
To meet constitutional muster, according to Cain, the bill basically needs whittling from one that targets begging generally—there could be no solicitations of money period after dark, for instance—to one that bans only so-called aggressive panhandling. That’s defined as “approaching or speaking to another person in such a manner that would cause a reasonable person to fear for their safety, to persist in panhandling after a person has given a negative response, to block passage of a person being solicited for funds, to touch a solicited person, to render service to a motor vehicle without prior consent of the owner, or to engage in any other activity that would reasonably be construed as intended to intimidate or compel a person to give money.”
But all of that is already in violation of laws against assault, harassment and any number of other criminal statutes. Which means that what Dean wants is an ordinance that’s completely unnecessary. Which also means it might not satisfy the council’s appetite to punish beggars. The bill was recorded as passing unanimously by voice vote, although at least one council member, the at-large representative Jerry Maynard, says he voted no.
Nashville is not alone in passing ordinances against panhandling. By one count, 47 of the 50 biggest U.S. cities have something on the books. All these cities have come to the conclusion that begging is bad for business. Downtown businesses, backed by the city’s growing population of urban residents, are demanding Nashville’s crackdown. Police could give $50 tickets to beggars.
“This gives business owners a tool to get these people off their doorsteps when they’re harassing their customers,” says Ben Bahil, vice president of the Urban Residents Association.
But courts around the country have held that begging is speech protected by the First Amendment, and any ordinance must be narrowly tailored so as not to interfere with those rights. Nashville’s bill is clearly too broad. No one could ask for help after dark anywhere in the city. The proposal, sponsored by council member Walter Hunt, was patterned after an Indianapolis ordinance that was upheld by the 7th U.S. Circuit Court of Appeals. But that case is not a true test, Metro’s legal analysts say, because the plaintiffs failed to make a key argument that could have led to a different ruling.
Advocates for the poor say that, regardless of whether the ordinance is constitutional, it tarnishes whatever reputation for kindness the city might have earned. “It’s unfair, and it’s sad,” says Charles Strobel, founder of the Room in the Inn shelter for the homeless. “We want to be known as a compassionate city, and I want to believe we are. But public policy indicates public attitude, and if we’ve got an aggressive attitude toward a particular population, then I don’t know if we can claim compassion.”
