January 2016 - Parks & Recreation - 31

environment and eliminating nuisance activity within the downtown
historic district; and solicitation, begging or panhandling substantially
burdens tourism within the downtown historic district.
In the opinion of the federal district court, " fostering economic revitalization in a challenging urban
area like Lowell is undoubtedly a
critical task for city policymakers. "
Moreover, the federal court found the
pursuit of tourism and economic development " may rise to the level of a
significant, indeed a substantial, government interest sufficient to justify
content-neutral regulations. "
A vibrant downtown economy can
help provide jobs to the unemployed,
reduce crime and improve public
safety, and provide tax revenue for
essential public services, including
those that help the homeless and other panhandlers.
In response, however, plaintiffs
claimed, " the city failed to establish
that panhandling actually harmed
business or tourism downtown " because the city's evidence amounted
to " anecdotes and hearsay. " As described by the federal court, the city
had " the burden of showing that the
harms it seeks to mitigate are real,
not merely conjectural, and that the
regulation will in fact alleviate these
harms in a direct and material way. "
That being said, the court acknowledged that a court owes " substantial
deference to a legislature's predictions about the effect of its policies,
given its institutional capacity to
gather information and the fact that
it is not obligated to prepare that information into record form. "
In the case of tourism and economic
development, the federal district court
noted, " the promotion of tourism and
business has never been found to be a

compelling government interest for the
purposes of the First Amendment. "
As a result, the court did " not need to
decide definitively the issue of whether
the evidence supporting harm to business or tourism downtown by panhandling is sufficient. " The federal district
court, therefore, concluded, " tourism
promotion " was not " a sufficiently important interest to allow content-based
restrictions on speech affecting it
to survive strict scrutiny. "

streets and sidewalks a person might
be " confronted with an uncomfortable message " that they cannot
avoid; this " is a virtue, not a vice. "
Public Safety Afterthought
In addition to the tourism and business justification provided in the preamble to the challenged ordinance,
the city also claimed " the downtown
provisions serve the compelling government interest of public safety. "

In this particular instance, the court found " the
mechanism by which Lowell's ban on panhandling
downtown would promote tourism flies in the face of
the First Amendment. "
In the opinion of the court, " tourism promotion " was a " highly open,
textured and inadequately developed "
reason to effectively " eviscerate limitations on content-based speech regulation. " In this particular instance, the
court found " the mechanism by which
Lowell's ban on panhandling downtown would promote tourism flies in
the face of the First Amendment. "
While acknowledging " economic
revitalization might be important, "
the federal district court noted that
the First Amendment " does not allow the sensibilities of some to trump
the speech rights of others. "
The First Amendment does not
permit a city to cater to the preference of one group, in this case tourists or downtown shoppers, to avoid
the expressive acts of others, in this
case panhandlers, simply on the basis that the privileged group does not
like what is being expressed. It is core
First Amendment teaching that on

Plaintiffs did not contest the city's
point that the government had a
compelling interest in public safety
generally. However, in this particular
instance, plaintiffs contended that the
city's public safety rationalization for
the downtown provisions was a posthoc (i.e. after the fact) argument initially raised in the course of litigation.
The federal district court agreed.
The purpose of the ordinance was
authoritatively set forth in its preamble, which was duly enacted by
the city council along with the ordinance. It is undisputed that only
tourism and nuisance abatement
(with a passing reference to an associated " safe " environment) were included in that original preamble.
As noted by the court, " after-thefact explanations cannot help a law
survive strict [judicial] scrutiny " in
an attempt to establish the constitutionality of an otherwise unconstitutional governmental regulation.

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January 2016 - Parks & Recreation

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