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Spring 1994
   
The ACLU Against the Cities
Charlotte Allen
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Bookstore-dotted Dupont Circle is Washington, D.C.’s Greenwich Village: gentrified townhouses, a dense sidewalk life, and jam-packed bars, restaurants, and latte shops for the artsy young and not-so-young. Among the cheapest of the coffee joints is the Chesapeake Bagel Bakery, a neighborhood hangout. Just inside the door is a bulletin board for the backwards-baseball-cap set: “Ride Wanted to NY/NJ”; “Lesbian Couple Seeks Housemate”; “This is a Non-Cigarette-Smoking House.”

Laid-back ambiance, yes, in all respects but one: the red-letter sign in the Bagel Bakery’s window that warns, in language as stem as a cop’s roust, “NOTICE TO ALL PANHANDLERS/Be advised that certain types of panhandling are prohibited in the District of Columbia.” The notice lists a catalog of restrictions on begging, all part of Washington’s new Panhandling Control Act of 1993, which went into effect last June after several years of complaints by Dupont Circle merchants and others about often-obnoxious beggars on the sidewalks. Tourism, after all, is Washington’s biggest industry, and it has been falling off sharply of late.

“A lot of the solicitors were getting in people’s faces,” says Sossi Motamedi, the Bagel Bakery’s Iranian-born manager. “You’d have about 10, 15, 20 people hanging around the door. Some of the people would get into arguments with the customers. People would have to walk around them. They didn’t want to deal with that, so they’d just go across the street.”

“I’m a liberal—that’s why I live in D.C.,” says Edward Grandis, executive director of the Dupont Circle Merchants and Professionals Association, which lobbied heavily for the ordinance. “But these people [panhandlers] ... were a real sophisticated group,” continues Grandis. “What distinguished them from those who were truly in need was the way they stared at you—they’d try to start a conversation, they’d stand in certain places so you’d have to walk around them, they would walk behind women, they would try to stop you. We were trying to bring about some balance, so you could walk down the street and not be bothered.”

The District’s new panhandling ordinance reflects a national trend. Across the United States, cities large and small (San Francisco, Seattle, and New York, to name a few), bastions of liberal tolerance and compassion, are finding their benevolence worn thin. This is a genuine turnaround. During the 1980s, Washington and New York experimented with offering street people an unconditional right to shelter, and San Francisco drafted a “bill of rights” for the homeless that essentially instructed police not to hassle them. Now, many of the residents of those cities are wondering whether they are doing the homeless a favor by letting them live anywhere they want in public spaces. Threats and harassment of passers-by by beggars are only part of the problem; even more disconcerting has been the transformation of parks, libraries, parking lots, and train and bus stations in many large cities into squalid, crime-infested encampments for transients. In the name of maintaining order and livability in their urban cores, many cities are cracking down.

There is an obstacle, however: the American Civil Liberties Union (ACLU). Founded in 1917 to provide lawyers and legal defenses for radical anarchists, the ACLU has always been controversial. Nonetheless, some of the constitutional causes the ACLU has advanced—freedom of the press, procedural rights for accused criminals, equal protection of the law for racial minorities—have won the organization the respect of centrists and even conservatives. (The organization’s Northern California affiliate, for example, provided almost the only public opposition to the internment of Japanese-Americans and the near-confiscation of their property during World War 11.) Lately, however, the 250,000-member ACLU has become a leading advocate for those who are “unpopular” not because of their skin color or the views they hold, but because they threaten the quality of life in public places.

The ACLU has always taken an absolutist stance on rights, working to persuade courts to interpret the Constitution in ways that minimize government regulation of personal behavior. That absolutism has led critics to charge that the ACLU exalts an abstract notion of rights that does not square with the concrete reality of contemporary urban life, in which “liberty,” as the ACLU defines it, translates into unlimited freedom for predators, drug dealers, bullies, exhibitionists, and public drunks.

The upshot has been a series of court clashes. In Washington, for example, the ACLU’s National Capital Area chapter is waiting for the right case to come along so it can challenge the panhandling restriction on the ground that it violates beggars’ First Amendment right to freedom of speech. The ACLU’s theory, which courts in several other jurisdictions have already adopted, is that begging isn’t just asking for money; it also conveys a political message—government should do more about the plight of the homeless—that deserves constitutional protection.

How persuasive is this argument? Someone with different political inclinations might receive a completely different message: that we ought to be more resolute about confining frightening and potentially dangerous drunks and lunatics. Common sense suggests that unlike an organized charity, the panhandler on the street corner intends to convey no message whatsoever beyond a desire for cash. Even civil libertarians agree that the government has the power to restrict purely “commercial” speech.

Nonetheless, the ACLU and its allies among legal-aid and private lawyers have an outstanding track record in promoting their absolutist stance in the courts. In 1991, a federal judge in San Francisco, ruling in an ACLU-generated lawsuit, struck down a California law stating that anyone who “accosts” someone in a public place to beg or solicit alms is guilty of a misdemeanor. Lawyers for the city argued in vain that the word “accosts” implied unacceptably aggressive behavior that the state was well within its rights to ban. U.S. District Judge William H. Orrick said the statute effectively barred the “needy” from mingling and speaking their minds in the public forum of San Francisco’s streets. While a federal appeals court ponders whether Orrick ruled correctly, the ACLU is pursuing a second federal suit to prevent San Francisco authorities from enforcing a little-heeded state law that bans blocking sidewalks and sleeping in parks. The ACLU maintains that those activities, too, are constitutionally protected.

In New York, a federal appeals court last July upheld a lower court ruling striking down a ban against “loitering for the purpose of begging” on the city’s streets. The court rejected as “ludicrous” testimony from the New York City Police Department that beggars tended to cluster around banks, bus stops, parking lots, and automated teller machines, blocking the way of pedestrians and hurting neighborhood businesses. While the court did say it might uphold a narrower ban focused on “aggressively” begging, it said that panhandling per se was a form of “communicative activity” that could not be prohibited altogether. The decision was a setback for community policing, which emphasizes the enforcement of “minor” crimes as a means of preventing major crimes.

Proponents of the tough new order-maintenance laws defend them as last-ditch measures to prevent wholesale middle-class desertion of today’s beleaguered cities. But the view of civil libertarians is: depopulation happens. “Throughout recorded history, cities have ebbed and flowed,” says Michael Hallerud, a lawyer with the San Francisco firm of Pettit and Martin who is handling the California begging case for the ACLU. “Cities are dynamic creatures, like plants or people,” says Hallerud, “and they never stay the same.”

The people who suffer the most from urban disorder, however, are not the middle class, but those who can’t afford to flee to the suburbs. In their everyday lives, the urban poor depend heavily on government-supplied services and amenities, such as public transportation and parks. Moreover, it is their neighborhoods that are liable to be turned into open-air drug markets or places of business for prostitutes. Thus, the working poor have plenty of constitutional rights, thanks to the ACLU and other civil-liberties advocates, but it has become increasingly unsafe and unpleasant for them to venture outdoors to avail themselves of those rights.

To get around civil libertarians’ constitutional objections, many localities have carefully crafted their public-order regulations so as not to ban begging and loitering altogether. The Washington panhandling ordinance, using wording that appears to be lifted from the recent New York court decision, forbids only “aggressive” begging. (Provisions in the ordinance define “aggressive” as approaching someone in a way that would cause a reasonable person to experience fear, touching the prospective donor without his consent or blocking his way, or continuing the solicitation after the prospect has made a negative response.) The Washington law also prohibits asking for money in exchange for washing someone’s windshield or for holding a public parking place (squeegee men and “car jockeys” plague the District’s restaurant districts). Nor can panhandlers operate near bus and subway stops or automated teller machines. Violators are subject to a maximum fine of $300, a ninety-day jail term, or both.

All in all, the District of Columbia ordinance seems a reasonable effort to control threatening behaviors associated with alms-soliciting without banning asking for alms altogether. Reasonable to some, but not to the ACLU. Says Arthur Spitzer, legal director of the National Capital chapter: “The way these people act may frighten you, but why make it a crime because you’re a ’fraidy-cat?”

When ACLU representatives testified against the measure before the D.C. City Council last year, they argued that the restrictions would inhibit perfectly normal and desirable activities, making criminals, for example, out of political activists “begging” for signatures on petitions. That is the classic modus operandi of the ACLU: First, denigrate people’s natural fear and repulsion when confronted with aggressive or offensive conduct into a purely subjective, even irrational, response to an unusual lifestyle. Then find a way to make restraints against urban pests start to look like restraints against middle-class law abiders. A ban on sleeping in public parks? The ACLU argues that such a prohibition could hinder a Wall Street investment banker from enjoying a lunchtime snooze outdoors. Curfews for young people? Shouldn’t parents, not police, be the ones to decide when youngsters go to bed? Deterring open-air drug transactions? Couldn’t that also deter the lawyer who wants to hand out business cards on the street? And to those who argue that the police would never arrest anyone engaged in such harmless, though technically illegal, activities, the ACLU cries selective enforcement.

Many would argue that the ACLU lives in a dream world in which every solicitation for alms is an important philosophical statement about homelessness. In fact, the civil libertarians live in an all-too-real world of successful constitutional sophistry. The ACLU paints itself as merely a principled defender of the Bill of Rights, while in reality adding new “rights” to the bill and transforming those that are already there into open-ended protections for the most egregious lack of self-restraint. Whenever someone suggests that a society might have the power to occasionally limit some of those rights in the interest of respecting other people’s rights, the ACLU cries fascism.

“It’s all driven by the idea of the slippery slope,” says Thomas Merrill, a professor of constitutional law at Northwestern University. “There’s a very interesting parallel between the ACLU and the NRA [National Rifle Association]. Both organizations, for various complicated reasons, have seen it as advantageous to take the stance that any abridgment of a right will put you on the upper part of the slippery slope. It’s like the NRA with the Brady Bill. They argue that if it passes, that means federal marshals will come and take away your guns. It’s the same kind of zealot mentality. And of course it helps for fundraising. They have to be constantly a party to live controversies.”

The nation’s state and federal courts, with a few notable exceptions, have bought into the ACLU’s absolutism. In his admiring 1990 history of the organization, In Defense of American Liberties, University of Nebraska professor (and ACLU board member) Samuel Walker noted that the ACLU has been involved in more than 80 percent of the Supreme Court’s “landmark” decisions setting the parameters of constitutional rights. “The courts—they’re very political institutions,” says Northwestern’s Merrill. “And judges usually don’t get direct feedback from voters. Their status comes from their acclaim in academic and media circles. And something like freedom of expression—that’s a special-interest issue for the media and academics. Judges who vote [the way the ACLU wants] get lionized at law-review banquets.”

Starting in the early 1970s, the ACLU has persuaded the Supreme Court to strike down as unconstitutionally vague a number of local vagrancy ordinances that forbade loitering and wandering about aimlessly on sidewalks and in other public areas or refusing to identify oneself when police asked (vague laws violate the Fourteenth Amendment). True, law-enforcement officers sometimes used to apply those laws in a racially discriminatory or otherwise unfair fashion. But the vagrancy prohibitions also functioned as useful tools with which officers on the beat could rid neighborhoods of known petty criminals before they disturbed law-abiding pedestrians, confine drug and alcohol abusers to needle parks and skid rows, and question suspicious characters in neighborhoods whose law-abiding residents the beat cops knew well. In many cities, vagrants and alcoholics arrested under the old anti-loitering laws spent their winters in jail, where they were at least warm and adequately fed.

The nullification of vagrancy laws coincided with another series of ACLU court victories: emptying the mental hospitals of all involuntarily committed patients except those deemed an immediate danger to themselves or to others. True, many of the old public mental institutions were horrifying places, and true, also, that homelessness has more complicated causes than mental illness. Nonetheless, the combination of deinstitutionalization—which vastly increased the homeless population—and the demise of vagrancy enforcement destroyed two social mechanisms, albeit crude ones, that local governments successfully employed for much of this century to maintain safe and relatively pleasant city streets and parks.

Thus, the recent New York phenomenon of Upper West Side “wild man” Larry Hogue, who repeatedly assaulted local residents and destroyed their property but who could not legally be hospitalized for more than a few weeks at a time. Or of Joyce Brown, a star ACLU client of the late 1980s who was diagnosed as schizophrenic (and lived on the streets, where she urinated and defecated in public and shouted obscenities at passersby), but could not be involuntarily committed to Bellevue.

Like New York, San Francisco has a long tradition of latitudinarianism on unusual lifestyles, and, until recently, San Francisco’s residents and civic leaders bent over backwards to accommodate the homeless. But Judge Orrick’s overturning of the California begging law infuriated many residents of the city who worried that obnoxious panhandlers might drive away tourists, not to mention the middle class. So in November 1992, San Francisco residents voted 55 percent to 45 percent, despite fierce ACLU campaigning, to adopt a municipal ordinance that bars “aggressive” panhandling. (At least seven cities around the country have similar prohibitions, including Atlanta, Dallas, Cincinnati, Seattle, and, of course, Washington, D.C.) The ACLU plans to challenge the San Francisco ordinance as soon as it can find a client.

In addition, the ACLU is challenging San Francisco’s recent enforcement of a state law that prohibits “lodging” in public places such as streets, parks, and buildings. The organization is also fighting a measure pending before the city’s Board of Supervisors that would ban loitering within 45 feet of automated teller machines, favorite sites for panhandling and also for robberies.

In all these cases, the ACLU has made the same argument—that the law in question criminalizes innocent and harmless behavior. Using similar theories, the ACLU has also successfully challenged a ban on loitering for the purpose of prostitution in Tampa, Florida. The organization persuaded a court that police might use the law to harass minority women hailing their husbands on the street. A proposal to set up roadblocks in Chicago’s high-crime areas to hinder drive-by shootings has languished in the City Council since 1992, after the ACLU argued that the roadblocks could infringe privacy rights.

And the ACLU has also blocked efforts to prevent streets from becoming open-air drug markets. In 1990, the organization persuaded a federal court to overturn a carefully drafted 1988 ordinance in Alexandria, Virginia, that forbade standing on street corners engaging in suspicious-looking conduct that included the exchange of small packets for money. The ACLU said the law could make criminals out of lawyers handing out their cards to clients. Three years later, the city revised the drug-loitering law to require that the police have independent evidence that would lead them to conclude that the transaction actually involved illegal substances, not business cards or packets of herbs. The ACLU did not find the revisions entirely acceptable but did not challenge them either.

Streets are not the only public-order battleground. In recent years, parks, libraries, the lawns around public buildings, and train and bus stations have turned into nighttime or daytime camping grounds for large numbers of vagrants. The squatters interfere with the use of the facilities by their intended patrons. The illegal bivouackers also either overload the restrooms or, if there are none, transform the outdoors into a public latrine. The makeshift encampments are magnets for drug trading, thievery (with other homeless people often the victims), and prostitution, which supports drug habits.

The City of Santa Ana has fought a six-year losing battle against the ACLU of Southern California and a corps of legal-aid lawyers over a tent encampment on the grounds of the Santa Ana Civic Center, a downtown plaza that houses several state and county buildings, including the courthouse. “There is crime, arson, they burnt up a car next to the state building,” complains Santa Ana City Attorney Edward Cooper. “There was a shopping cart set afire. There’s drug dealing, prostitution, assault. It was not unusual for employees to come to work in the morning and see drops of blood all over the place.”

In 1988, Santa Ana police began a series of sweeps to round up the homeless campers and their belongings. Homeless advocates sued, alleging the police had wantonly destroyed campers’ property, and the city paid a $50,000 settlement. Another sweep in 1990 resulted in a $400,000 settlement. (Cash settlements are not infrequent in civil-rights suits against local governments. Litigation costs in such matters can be enormous. Many cities also feel intellectually outgunned because the ACLU can rely on pro bono services from top law firms, while the local governments must make do with their own poorly paid and overworked staff attorneys.)

In 1992, Santa Ana passed an ordinance making it illegal to camp anywhere on public land. Several neighboring cities, fearing that evicted Santa Ana vagrants would move into their downtowns, enacted similar ordinances. A state trial-court judge upheld Santa Ana’s prohibition, but a higher court issued an order barring its enforcement. The city then tried to enforce the same California law that San Francisco is trying to use, which forbids lodging in public places without permission. Civil-liberties lawyers went to court one more time and won an order barring Santa Ana from using that statute. This past December, Santa Ana took another stab at banning camping, enacting a new prohibition whose language mirrors that of a National Park Service regulation upheld by the Supreme Court in 1984 restricting camping in federally owned parks. The civil-liberties lawyers are challenging this latest ordinance, too.

“Laws like this amount to effective banishment,” says Harry Simon, a local legal-aid lawyer who is fighting some of the court cases along with the ACLU. “They make it a crime to be homeless and to live in the city,” Simon complains.

Advocates for the homeless have employed the First Amendment to defend camping out in public places, arguing that sleeping, like begging, could be a form of “symbolic” social protest. That was the argument that a group headed by the late homeless activist Mitch Snyder made to the Supreme Court in a 1984 case challenging the Park Service’s camping restrictions. Snyder’s group had proposed to spend its nights in a “tent city” in Washington’s Lafayette Park, a slice of federally owned property across the street from the White House, as a way of protesting the Reagan administration’s neglect of the homeless. Park Service rules allow camping only in designated areas, however, and the Supreme Court decided that the homeless could dramatize their plight in numerous ways other than sleeping in the park.

With the First Amendment out of the question as a vehicle for challenging camping and sleeping restrictions, civil libertarians have cast about for other constitutional grounds on which to mount their legal challenges. The new favorite provision is the right to travel, a right not explicitly mentioned in the Constitution but which has been recognized by the Supreme Court as fundamental. Laws forbidding sleeping in parks would not seem to infringe on the right to travel. Nonetheless, civil libertarians make the argument that for the indigent, the right to travel is meaningless unless the government provides them with a free place to rest at night. Homeless shelters do not figure into the civil-libertarian calculus because homeless advocates maintain there are never enough beds, and besides, many homeless people do not like shelters and refuse to stay in them.

These arguments have enjoyed enormous success in courts across the country. For instance, in 1992, a federal district court in Florida interpreted the right to travel with astonishing broadness, ruling that it encompassed a right to sleep, eat, bathe, and perform other “essential, life-sustaining activities” in parks and other public places.

In Atlanta, the ACLU is trying to blur the line between public and private property in order to protect a different kind of downtown homeless haven: the parking lot. As part of a series of recent laws whose aim seems to be to clean up Atlanta for the 1996 Olympics, the city made it a crime for people to be in the parking lots unless their cars are actually parked there.

The parking lot ordinance would seem unexceptionable. After all, the lots’ private owners already have a legal right to bar trespassers. Moreover, parking lots are frequently the scene of muggings and rapes. But the ACLU of Georgia is trying to put together a case that the police are selectively enforcing the parking lot law. “If I take a shortcut through a parking lot, nothing will ever happen,” says Teresa Nelson, the chapter’s executive director. “But if I happened to be poor and male, I’d be subject to police harassment. It’s a stupid law anyway. Why should anyone be arrested for taking a shortcut through a parking lot?”

The ACLU has fought similar battles to secure rights for the homeless to spend their days and nights indoors at public buildings. Rules at New York’s Grand Central Terminal and Pennsylvania Station that ban taking baths at drinking fountains, washing one’s clothes in the lavatories, and lying on the floor have drawn ACLU protest: they could criminalize college students sprawled out next to their suitcases waiting for trains. And for four years the organization’s New Jersey chapter represented Richard Kreimer, an unusually disheveled homeless man who camped out every day inside the public library in Morristown. According to witnesses, Kreimer’s body odor was so foul that other patrons could not read while he was there, and women complained about his annoying stares. Finally, in the spring of 1992, the Third U.S. Circuit Court of Appeals in Philadelphia upheld the library’s hygiene rules as reasonable, overturning a lower-court decision. Kreimer, meanwhile, had collected more than $200,000 in settlements in his claims against Morristown officials.

The ACLU takes the position that it is impossible to draft a rule of reason for deciding when someone smells bad enough to warrant eviction from a public facility. “The standard would have to be an objective standard,” says Norman Siegel, executive director of the ACLU’s New York chapter. “If you give unfettered discretion to authorities, they’ll use it to harass people they don’t like.”

So there is now a standoff on public-order issues between the ACLU and a dozen local governments that have been trying to draw a line between compassion for the down-and-out and tolerance of anarchy. In the ACLU’s view, those fed-up governments and their citizens simply need a few more lessons in constitutional law and perhaps in the economics of unemployment—and they, too, would see nothing wrong with begging at the bus stop or living in the park. “That’s why the ACLU has to do a better job of educating people,” says the ACLU’s associate legal director Helen Hershkoff.

But the philosophical cleavage between the ACLU and its opponents runs deeper. In his forthcoming book, Twilight of Liberty: The Legacy of the ACLU, longtime ACLU gadfly William A. Donohue describes the organization’s concept of liberty and constitutional rights, focusing on a radical personal individualism, as “atomistic.” Donohue predicts that the ultimate result of the ACLU’s frenzy of litigation against social standards will be centralized government tyranny because of a fatal weakening of mediating community institutions—parks, libraries, and local police departments, among others—that facilitate what Donohue calls a “social” notion of liberty in which responsibilities as well as rights play a role.

At the root of the problem is the ACLU’s anarchistic concept of the function of law and authority. Civil libertarians believe that most laws—most external inhibitions on people’s ability to do exactly as they please—are in the long run harmful and ought to be struck down unless the government can justify them under the most stringent of criteria.

The more traditional view holds that laws and rules grow organically from a culture’s sense of its social order. In all human societies—except perhaps this one—people have considered it their prerogative to regulate themselves, to set legal restraints on behavior based on long-standing customs and deeply ingrained attitudes. Until recently, almost everyone in America, sharing in a common culture, would have found it absurd to suggest that people have a “right” to defecate in the rain gutter or sit at a reading table in a public library smelling so bad that the other patrons flee in revulsion. The ACLU does not exactly intend to dismantle the social order. But its adherence to its ideological agenda has produced a sort of moral blindness. Furthermore, the organization has persuaded a critical mass of judges, legal scholars, and practicing lawyers to go along. Indeed, it may be that our society has arrived at such an advanced degree of moral anarchy—thanks in part to the ACLU and its allies—that courts and even many members of the general public will reject most efforts to restore safety and sanity as heavy-handed.

Meanwhile, though, at least some communities are trying to strike a balance between kindness and tolerance and the maintenance of some rudiments of public order. Whether they or the ACLU and its allies will prevail over the long run is an open question.

 

 

 
Urban leaders fight to restore civility in public places but often find themselves battling in court.
City Journal Spring 1994.
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