WINCHESTER — The American Civil Liberties Union (ACLU) of Virginia has doubled down in its opposition to the city’s ban on roadside panhandling.
In a letter mailed Friday to Winchester Mayor David Smith and members of City Council, state ACLU Executive Director Claire G. Gastañaga claims Winchester has two panhandling-related ordinances that “may not withstand a legal challenge under the First Amendment of the United States Constitution.”
This follows an Aug. 22 letter in which the ACLU of Virginia criticized a roadside panhandling ordinance approved by City Council on June 25. However, that letter quoted text from the wrong ordinance, one that was adopted in October 2009 and has not been enforced for four years.
The new letter does not admit the earlier mistake, but instead “supplements previous correspondence ... which referenced only one of the two problematic provisions concerning solicitation on the books in Winchester.”
Winchester Communications Director Amy Simmons said last month the 2009 ordinance was superseded in June by the new roadside panhandling ban, which attempts to sidestep free-speech concerns by stipulating there are “many alternative channels for interaction in the city which do not disrupt traffic flows and create a dangerous situation on roadways.”
Police stopped enforcing the previous ordinance in 2015 due to potential First Amendment problems caused by its overly broad definition of panhandling as “the spoken, written or printed word or such other acts as are conducted in furtherance of obtaining alms or an immediate donation of money.”
In Friday’s letter, Gastañaga called for the repeal of the 2009 ordinance because, “regardless of enforcement, [it] is still the law in effect on panhandling in the city.”
She also wants Winchester to repeal the new ordinance, which bans panhandling at intersections but notes that are other ways to legally solicit money, because “there is reason to believe this code provision may not ... survive constitutional scrutiny.”
Gastañaga cited a 2015 federal case, Reynolds v. Middleton, in which justices with the U.S. Court of Appeals for the Fourth Circuit of Virginia affirmed that solicitation is a form of constitutionally protected speech. She compared the federal case from Henrico County with Winchester’s new ordinance, claiming it puts an unnecessary and potentially unconstitutional burden on free speech.
“As the plaintiff in Reynolds asserted, ‘the county has other, less restrictive means available to further its asserted ... safety interest by enforcing existing traffic laws — such as those governing jaywalking, obstructing traffic, loitering, and the like — against any roadway solicitors who in fact obstruct traffic or otherwise cause problems,’” Gastañaga wrote.
ACLU of Virginia Director of Strategic Communications Bill Farrar has said his organization is not threatening legal action against Winchester, but hopes city officials will revisit the two panhandling ordinances based on information provided in the two letters.