Federal lawsuit targets Alabama law that criminalizes begging

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Ralph Chapoco | Alabama Reflector

A panel of federal judges in Atlanta Wednesday heard arguments over whether an Alabama state law criminalizing begging could stand.

The arguments turned over prior precedents that have said begging as a form of free speech.

The Alabama Attorney General’s Office Wednesday asked the three-judge panel of the U.S. 11th Circuit Court of Appeals to find “room to maneuver” around those precedents to allow the state to enforce the law.

“The court should rely on history and tradition,” Alabama Deputy Solicitor General Robert Overing said during oral arguments before the three-judge panel of the U.S. 11th Circuit Court of Appeals. “That state doesn’t need a historical twin or a dead ringer. It needs some analog, some predecessor.”

Attorneys for the plaintiffs said doing that would throw out established law.

“The court has recognized only a few categories of unprotected speech,” said Micah West, senior staff attorney with the Southern Poverty Law Center, who argued the case Wednesday for the plaintiffs. “It has been especially reluctant to carve out new categories of speech.”

Alabama law prohibits people from “loitering, remaining or wandering in public to beg,” an act that carries a maximum penalty of 30 days in jail and a $200 fine. Another law makes it illegal for someone loitering along the highway to solicit “employment, business or contributions” from people who are driving.” Violations can mean up to 10 days in jail and a $100 fine, with punishments escalating with subsequent violations.

The class action lawsuit, first filed in 2017 on behalf of Jonathan Singleton, a homeless man living in Montgomery, argues that the anti-panhandling laws violated his free speech rights. The suit named the city of Montgomery, Montgomery County Sheriff Derrick Cunningham and Hal Taylor, secretary of the Alabama Law Enforcement Agency (ALEA), which has power to enforce the statutes.

According to the brief that Singleton filed, between July 2018 and December 2020, the Montgomery Police Department filed 35 citations for alleged violations of the Begging Statute and issued 394 citations under the Pedestrian Solicitation Statute.

Singleton settled the part of his lawsuit pertaining to the city of Montgomery and Cunningham. A federal judge from the U.S. Middle District of Alabama ruled for Singleton in the remaining action against Taylor in March 2023.

The parties agreed to the facts found in the summary judgement rendered by the judge in the Middle District of Alabama in March 2023, but Taylor appealed, challenging the finding that begging is protected under the First Amendment.

The Legislature revised the statute during the 2023 legislative session through HB 24, sponsored by Rep. Reed Ingram, R-Pike Road. The law maintains the criminalization of begging but makes the first arrest for loitering a violation and an additional violation a Class C misdemeanor, punishable by up to three months in jail and a $500 fine.

U.S. Circuit Judge Elizabeth L. Branch, a member of the three-judge panel who heard oral arguments Wednesday, cited Smith v. Fort Lauderdale, a 1999 ruling that upheld a prohibition on soliciting donations on a stretch of sidewalk because the rule was “narrowly tailored to serve the City’s legitimate interests.” But the court, citing earlier cases, also stated that “begging is speech entitled to First Amendment protection.”

Overing argued that begging for money is not protected free speech, citing among other examples a 1788 New York State law and an 1812 action by President James Madison that “empowered Washington, D.C., to penalize ‘all vagrants, idle or disorderly persons,’” according to the state Attorney General’s brief.

“The robust historical record of vagrancy laws stretching back to the Founding and Colonial America shows that the First Amendment was not originally understood to protect begging,” the brief said.

Singleton’s attorneys argued Smith v. City of Fort Lauderdale had decided the matter.

“In Smith, this court held that begging — which involves the charitable solicitation of funds for personal need — is constitutionally protected speech,” Singleton’s brief stated.

Singleton’s attorneys cited similar rulings in other cases by the U.S. Supreme Court and eight other circuit courts.

Branch and U.S. Circuit Judge Barbara Lagoa, the other member of the panel, were mostly silent during the arguments. U.S. Circuit Judge Robert J. Luck, the third panel member, sounded doubtful about the state’s argument about precedent.

To apply a different standard, Luck said, the Supreme Court must rule that the standard no longer applies by “eviscerating” the case law that gives life to that standard. If the cases are still used then the standard still applies.

The Supreme Court did not invalidate the Smith case when the plaintiff filed suit against Fort Lauderdale.

“If the panel relied on a reading of that Supreme Court case, and that Supreme Court case is still out there, then how has that been eviscerated?” Luck said to Overing. “Now, if the Supreme Court were to say, ‘We have this new way of doing stuff, and these prior cases are now no longer good law,’ I think you might be in the ballpark. But I am worried we are not in the ballpark.”

As for West, Luck said there were examples of government making laws against begging and vagrancy after the that the First Amendment was already established, and even so, the government continued to make laws punishing begging and vagrancy.

The three-judge panel did not render a ruling after oral arguments Wednesday. All three members of the panel were appointed by President Donald Trump during his first term.

Alabama Reflector is part of States Newsroom, an independent nonprofit website covering politics and policy in state capitals around the nation.

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