Paolino’s Proposed Ordinance Withstood Challenge from KKK in Missouri

GoLocalProv News Team and Kate Nagle

Paolino’s Proposed Ordinance Withstood Challenge from KKK in Missouri

The KKK failed in its challenge of a Missouri city's ordinance prohibiting solicitation and distribution between cars and people in the street.
The city ordinance proposed as part of the Downtown Improvement District’s plan unveiled this week, which would prohibit exchanges between persons in the street and those in vehicles, was modeled on one that had been challenged by the Ku Klux Klan in Missouri -- which a federal district court ultimately upheld, GoLocalProv.com has learned.

“In late February, a federal district court upheld the City of Desloge, Missouri’s prohibition on persons entering into the public right-of-way for the purpose distributing anything to the occupant of a vehicle….this decision is the latest in a case that was originally filed by the Ku Klux Klan against the City of Desloge in 2012 challenging the city’s ordinances regarding distribution of leaflets and pamphlets in public right-of-ways,” wrote Brian Connolly for the “Rocky Mountain Sign Law Blog.”

“The Ku Klux Klan filed the suit claiming the group's rights were infringed upon when handing out literature to people in the streets of Desloge at a four-way intersection in 2013. Desloge ordinance prohibits pedestrians from entering the roadway for solicitation purposes or distribution of flyers to help keep pedestrians and motorists safe," KFVS had earlier reported

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Former Mayor of Providence Joseph Paolino spoke earlier this week to the proposed ordinance as part of the Downtown Improvement District's [DID] overall plan including supporting social services and increased employment opportunities.

“We believe we have an ordinance that we think is constitutional, and has been done elsewhere in the country,” Paolino had told GoLocalProv.com. “It would be that there is no exchange of money between an auto and someone on the street. It’s a safety problem, not just panhandling. And that takes care of prostitution, drugs, panhandling, but it also takes out the firefighters and Little Leaguers asking for money on the street."

Now, Providence lawyer John Tarantino, who helped DID mirror the Missouri ordinance language, explains how he sees it standing up to legal scrutiny.

Looking at the Law

The Providence ordinance proposal, which calls for the “Prohibition Against Distribution to Occupants of Vehicles,” was referred to committee on Thursday night’s City Council meeting, after brief comments in support from Councilmen Wilbur Jennings and Nick Narducci.  

“The Supreme Court recently came up with decision, called Reed, and that redefined what could or could not be done,” said Tarantino, who is with Adler Pollock and Sheehan. “Anything that predated Reed from my perspective was going to be futile. Rhe Missouri case was initially decided before Reed, was appealed to the 8th circuit, and then the judge re-examined, in light of Reed, in 2016, and I thought it was a really interesting case, because it was pre-Reed and after Reed. We didn’t try to make any changes at all, as the federal court said after Reed, this is OK.”

Tarantino spoke specifically to the wording of distribution “to” a vehicle in the Providence ordinance — and whether that needed to include “from” as well. 

“The court in the Missouri case interpreted it as either way, to or from occupants of vehicles,” said Tarantino. “I gave the City Council two ordinances. One that is exactly like the Missouri case, and then I gave them a version ‘B,’ and the only difference in one instance it says ‘to or from, in or out’ [of a vehicle]. I think either way is fine, it's content neutral. I leave that choice up to the council and their counsel.”

Tarantino said language aside, there were two things he felt were important in the ordinance

“It makes it clear it doesn't apply to a car adjacent to [someone on] a sidewalk. This is a safety issue,” said Tarantino. “And this isn't directed at panhandlers. To the extent it applies to panhandlers, it wouldn't allow them to do it on a roadway or a median.”

“I think it's well reasoned, it makes sense,” said Tarantino. “This type of ordinance is content neutral is not aimed at speech, it's aimed at conduct, that the council is using its police power [over it].”

South Carolina, ACLU & More

While Desloge, Missouri saw a legal battle to uphold the ordinance, Charleston, South Carolina passed a similar ban last year, and according to counsel, has seen no legal challenges. 

“We were having [instances] where people were having accidents in a couple of a locations -- cars not going at green lights, rear ended, that type of thing,” Janie Borden, who serves as legal counsel for Charleston, told GoLocal on Thursday. “So we went ahead and passed that ordinance.”

“It went through pretty easily. We still have panhandling [in the city],” said Borden. “That [ordinance] is just for intersections and thoroughfares.”

Steve Brown with the Rhode Island ACLU, who released a statement following the ordinance unveiling this week, said that he “may very well challenge it” in Providence. 

“It's too early to say. And one court decision in Missouri doesn’t determine whether a statute is constitutional or not,” said Brown. “And it depends on factual issues — it may have been that [in] Missouri, they documented the safety issues. We would argue safety is an subterfuge for an ulterior motive.”

“We have concerns that it would be selectively enforced,” added Brown. "The other [concern] is even if an ordinance is content-neutral on its face, it still can impact a significant amount of free speech. The argument that we’re banning more speech rather than less is not necessarily a great thing and that’s what boils down to. But I think anyone who’s been following this issue would have to close their eyes not to understand the specific goal of this."

Tarantino responded to the ACLU. 

“I have a lot of respect of the ACLU, they probably know more cases than I do, but again I looked for something that has been upheld," said Tarantino. "It's something I believe we can present in good faith in federal court."

“I thought some of the comments by the ACLU were interesting. They're not shy about saying something is unconstitutional. But they say this is being mean-spirited — I disagree with that, and furthermore, those aren't constitutional issues," said Tarantino. "And I agreen on one point, I certainly would have an issue if there was ultimately selective enforcement of this."

'They’re entitled to their opinion. I understand they don't like it," said Tarantino. "[But] this is about conduct, not content.”


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