ST. LOUIS (CN) – The state of Arkansas told an Eighth Circuit panel Thursday that a federal judge’s injunction of a law prohibiting begging is overly broad and the case challenging the law’s constitutionality should be dismissed for lack of standing.
In 2017, the American Civil Liberties Union of Arkansas sued the state on behalf of Michael Andrew Rodgers and Glynn Dilbeck, who were cited, arrested, prosecuted and convicted of loitering with intent to beg under Arkansas Law. The ACLU claims the law violates the plaintiff’s right to free speech.
Rodgers is a disabled veteran who lives and begged in Garland County. Dilbeck is homeless and begged in Benton County. The named defendant is Col. Bill Bryant, director of the Arkansas State Police, whose officers enforce the law.
In a September 2017 preliminary injunction, U.S. District Judge Billy Roy Wilson called the law “plainly unconstitutional” and said the state had failed to “satisfy the rigorous constitutional standards that apply when government attempts to regulate expression based on its content.”
Arguing on appeal, Jennifer Merritt with the Arkansas Attorney General’s Office said Wilson’s ruling was overly broad, telling the three-judge panel that injunctive relief needs to be narrowly tailored to fit the needs of plaintiffs. In this case, the injunctive relief covers the entire state.
“The injunction is only to protect the status quo of the plaintiff of the case your honor,” Merritt told the court. “In this case we only have two plaintiffs … this injunction is overly broad because it is applied to everyone in Arkansas.”
Merritt argued for dismissal, claiming the plaintiffs have no standing because the law has not chilled their speech.
“Mr. Rodgers testified that he still continues to beg under the new statute,” Merritt said. “He testified that he goes out begging regularly under the new statute.”
Katherine Stephens, representing the plaintiffs through the ACLU, said the law has chilled her clients’ freedom of speech. Using Rodgers as an example, she said he is forced to beg in the rural areas instead of the city more, that he is forced to hide his sign at times and it has changed when he begs.
“Both (plaintiffs) have been chilled,” Stephens told the judges. “Their fear of enforcement is reasonable here.”
The law in question allows for the arrest and prosecution of anyone standing or remaining “for the purpose of asking for anything as charity or a gift” in “an aggressive or threatening manner.”
The ACLU claims the law is content-based restriction, given arrests depend solely on the content of one’s speech. Only if the individual is “loitering” for the purpose of asking for charity or a gift may the individual be prosecuted under this law and the watchdog group claims it is not narrow enough to address a compelling state interest.
The ACLU also claims the law is too vague because it fails to define what constitutes asking for charity or a gift “in a harassing or threatening manner” or “in a way likely to cause alarm to the other person.”
Stephens said the state has failed to prove harm and that it is singling out begging under the guise of traffic safety.
“There’s a ton of other laws already on the books to address those issues,” Stephens said. “So why not have better enforcement of those laws?”
A previous Arkansas anti-begging law was ruled unconstitutional by an Arkansas federal court. In 2017, the Arkansas General Assembly responded by passing the law at issue with similar wording and the same effect.
U.S. Circuit Judges Lavenski R. Smith, Michael J. Melloy and David R. Stras heard the arguments in a special venue at the Saint Louis University School of Law before a courtroom packed with law students who participated in a Q&A with the judges following the session.