Attorney Jeff Fogel represents five homeless men in the suit.
Earl McCraw, a Charlottesville native who's been homeless for three-and-a-half years, is one of the five plaintiffs.
Is Charlottesville's ordinance banning panhandling near the Downtown Mall crossings and from patrons at cafés unconstitutional? That's what the attorney behind a lawsuit filed last Thursday morning in federal court alleges.
"You cannot set up the Downtown Mall as Disneyland and keep all the realities of America away from public discourse," says the attorney, Jeffrey Fogel, who worked in conjunction with the Virginia ACLU to help several frequent downtown beggars launch a legal battle over Constitutional rights.
"Anyone who walks on the Downtown Mall has seen someone seated with his back up against the wall, simply holding up a sign saying, 'I'm poor, homeless, and need help.' How is that harming anyone?" asks Fogel. "The answer is: it isn't, and it's protected by the U.S. Constitution."
The June 23 lawsuit asserting that the City's ordinance violates both the First and Fourteenth Amendments doesn't come out of left field. In fact, Fogel suggested he was considering a lawsuit late last fall when City Council revised its ordinance to ban solicitation of any kind within 50 feet of the Downtown Mall crossings. The new ordinance also prohibits soliciting "from or to" anyone sitting in a café or exchanging money with one of the numerous downtown vendors. That language, the suit alleges, is too vague, making it a violation of the Due Process Clause of the Fourteenth Amendment.
Proponents of the reworded ordinance, including Charlottesville Mayor Dave Norris, cited safety as the main consideration, but Fogel sees something more sinister.
"To pass and enforce this is treating the homeless on the Downtown Mall as a lower class, not entitled to the rights of anyone else," says Fogel, noting that other types of communication are allowed near the crossings.
"That's where the heart of this matter is legally," says Fogel, who held a press conference announcing the suit in front of City Hall. "It distinguishes what you can and can't do based on the message. Content-based restriction on speech," he notes, "is the most frowned-upon form of discrimination in the First Amendment."
The issue took center stage last fall as downtown business owners sought to cut down on panhandling, which they feared was keeping customers away.
"You're a caring person in a caring community, so when someone asks you for help, you want to help right then and there. But wouldn't you feel better if you knew exactly where your money was going?" read the text of an ad proposed by Downtown Business Association head Bob Stroh and Main Street Arena owner Mark Brown.
The two men had collaborated with Kaki Dimock, executive director of downtown homeless day shelter The Haven, to come up with the wording of the ad– similar to campaigns that have run in other cities. And Brown believed they'd reached a compromise that would help those in need while respecting business owners' desires. But resistance to the campaign– which would have encouraged donations to homeless-helping nonprofits rather than contributions to panhandlers– quickly killed it before it ever went public.
News of the lawsuit dismays the Arena's Brown.
"The City of Charlottesville and City Council have worked hard to help impecunious people," says Brown, echoing language used in the suit. "And for this guy to sue the city when it's done so much to help people get back on their feet seems foolish."
Norris, who voted in favor of the updated ordinance, also contends the case has no merit.
"It's a stretch to say we've made it difficult to exercise freedom of expression," says the Mayor, estimating that "at least 90 percent of the Mall is still open" for panhandling, and adding that he'd hoped to see the restrictions on panhandling go further by banning solicitations within 15 feet of cafés– something he says the city attorney nixed.
If Norris is vocal in support, City Council is not unanimous in that sentiment. At the lawsuit press conference, Vice Mayor Holly Edwards, who voted against the revised ordinance, voiced her concerns.
"I struggled with the ordinance when it came before Council," says Edwards, who will step down when her term ends in December. "I knew it wasn't going to solve the problem; it was going to move it."
Edwards says she's less concerned with the outcome of the suit– "It's in the hands of the court now," she says– but hopes it will prompt fresh discussion for the city "to address economic justice issues across the spectrum."
Of the five plaintiffs, only one, 27-year-old Earl McCraw, spoke at the press conference, although another defendant, Christopher Martin, stood nearby.
"My freedom of speech is being prosecuted," said McCraw, alleging that police routinely threaten him with trespassing charges as he sits on the Mall holding a sign, while at the same time they ignore musicians whose instrument cases are thrown open for cash.
As Fogel spoke to the members of the press, the presence of the Charlottesville Free Speech Monument just a few feet away didn't escape his notice.
"It's quite ironic to have a free speech wall," Fogel says, "when people aren't allowed to engage in free speech within a short distance from that very wall."