Can San Diego Constitutionally Prohibit

The answer to this question is both yes and no, depending on the legislative method San Diego would seek to employ. As this paper will explore, San Diego has four choices in legislative tactics to regulate or ban panhandling. Since panhandling necessarily involves two elements: speech and expressive conduct - you need to have a communication and a physical activity to be a successful panhandler - San Diego can one, legislate the speech of panhandling; two, legislate the activity of panhandling; three, legislate the speech of panhandling as commercial speech; and four, re-zone Balboa Park to exclude panhandling as a commercial practice.

The first part of this paper explores panhandling as speech and conduct. The speech half of "stick up" panhandling is a form of solicitation and a protected form of speech. What this means is that government regulation aimed at the speech half of panhandling would be subject to the strictest of scrutiny. More often than not, such regulations are declared unconstitutional. Some regulation of time, place, or manner, however, which is not aimed at the speech of panhandling, but rather at the conduct of panhandling is already a Constitutional practice able to withstand a First Amendment challenge.

Part I(A) of this paper will analyze San Diego's ability to regulate the speech element of panhandling. Under the current standard taken from Society for Krishna Consciousness v. Lee[ii], the inquiry is (1) whether panhandling is protected speech, (2) what type of forum Balboa Park is, and (3) what interest does San Diego use to justify a regulation on panhandling within Balboa Park.

Panhandling is protected speech, but it can be regulated as to time, place or manner so long as there is not an absolute ban. Balboa Park is a traditional public forum due the highest level of First Amendment protection. This means that San Diego is going to have to put forth substantial interests to justify a ban on the speech of panhandling within Balboa Park. As a pure speech regulation, the conclusion is that such regulation on speech alone would be unconstitutional. There are no precedents that permit a total ban on speech in a traditional public forum.

Part I(B) of this paper will explore panhandling as not solely speech, but, a combination of speech and conduct. Under United States v. O'Brien[iii] San Diego can ban the conduct of panhandling even if by doing so, it would by virtue of the overlap, be regulating the speech of panhandling. Under O'Brien, the relevant inquiry is that San Diego has a sufficient governmental interest in regulation of the non-speech element of panhandling to justify the limitations placed on its speech element. The conclusion is that San Diego ought to be free to regulate or otherwise ban panhandling's conduct even if by doing so, it would be squelching the speech of panhandling.

In 1992, the Supreme Court upheld a ban on panhandling in what might be the first in a yet to come series of urban assaults against that growing problem. That decision, Society for Krishna Consciousness v. Lee[vii], involved a regulation set up by the Port Authority, a private corporation set up to run major terminals of transportation in the cities of New York and Newark. The Port Authority sought to alleviate the congestion and inconvenience in the airport terminals it ran, La Guardia, Kennedy, and Newark, by barring panhandling within the terminal buildings. Its regulation permitted such activity outside the buildings but prevented, among other things, the repetitive solicitation and receipt of funds within.[viii]

The regulation upheld in Lee did not ban the panhandler's verbal request for money. Rather, it banned the repetitive request AND RECEIPT of funds. The regulation in pertinent part reads

The following conduct is prohibited within the interior areas of buildings or structures at an air terminal if conducted by a person to or with passers-by in a continuous or repetitive manner: * * * solicitation and receipt of funds.[ix]

Quite obviously, the regulation is not aimed solely at the speech of panhandling but also at the activity of panhandling.

Justice Kennedy in his concurrence in Lee says "The regulation may be upheld as a time, place, manner restriction, or as a regulation directed at the non-speech element of expressive conduct. The two standards have considerable overlap in a case like this one."[x] By virtue of the similarities between Lee and this inquiry, Justice Kennedy's succinct statement of the Court's analysis relates that panhandling undeniably contains speech, as it does convey an idea like "give me money, food, a job, etc...," which has the possibility, to be Constitutionally regulated under a time/place/manner analysis.

In Lee, the Court concluded that the speech of panhandling is protected, that the airports were not public forums, and that the Port Authority had a substantial interest in protecting travelers and the flow of pedestrian traffic within the air terminals to permit the regulation of panhandling within the air terminals.

Similarly, under Lee, panhandling is protected speech. Balboa Park is a traditional public forum, and San Diego cannot justify a ban on the speech of panhandling within Balboa Park because of its status as a public forum. As a pure speech regulation, the conclusion is that a regulation on speech alone would be unconstitutional.

I. Does Panhandling Contain Speech

A variety of cases all state that solicitation of the type where a person or organization attempts to communicate a thought or idea to another by in-person contact is a protected form of speech under the First Amendment, but such communication can, under the strictest of scrutiny, be subject to regulation or restriction.

In Lee, in which the Court upheld the prohibition of solicitations within air terminals, the Court said "face-to-face solicitation presents risks of duress that are an appropriate target of regulation."[xxvi] The Court listed six reasons which focused on the effects of panhandling for validating that regulation, the first three pointed to travelers having to circumnavigate solicitors; the cost of delays as a result; the risk of duress in such a confrontation. The remaining three addressed effects of panhandling inherent to the forum. Justice Kennedy points out in his concurrence that the Port Authority regulation was aimed at abusive practices and not any particular message, idea, or form of speech and as such, is content neutral.[xxvii]

In none of the cases where regulations on speech were upheld, like Kokinda or Lee, there were no public forums in issue. The existing precedents have analyzed non-public forums. The nature of Balboa Park as a traditional public forum is that of a place which is supposed to foster speech not hinder it, which is why the Court applies strict scrutiny. It therefore is unlikely that San Diego could write a ban on the speech of panhandling in Balboa Park that could survive a Constitutional challenge.

I(B) Can San Diego Regulate or Ban the Conduct of Panhandling

San Diego may regulate the conduct of panhandling even if it is intimately associated with the speech of panhandling. The concept of permissible intrusion upon speech by the regulation of non-speech that is fettered with speech goes back to 1968 in United States v. O'Brien[xxviii].

In O'Brien, the Court upheld a Federal regulation which outlawed the deliberate destruction of draft cards during the Viet Nam Era. An anti-war activist burned his draft card and then upon arrest and conviction, argued that the burning of the card was an act of expression protected by the First Amendment and that the law which he violated was an unconstitutional intrusion upon his First Amendment rights. Citing prior cases, the Court reaffirmed the rule that "when speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms."[xxix] The Court in O'Brien laid out the inquiry which said that the regulation, to be valid, must (1) be within the Constitutional power of the Government, (2) further either an important or substantial governmental interest, (3) be unrelated to the freedom of expression, and (4) be no greater than is essential to the furtherance of that interest.[xxx]

Under the O'Brien standard, "stick up" panhandling can be curtailed in Balboa Park. First, a law aimed only at the non-speech elements of panhandling, such as the one in Lee or the one in Heffron which the Court held valid, makes the activity of panhandling subject to States' police powers, even in a traditional public forum like Balboa Park. Second, there is a significant governmental interest at stake. For San Diego, there is the financial health of the entire city itself which is dependant on the public's perception of safety in the downtown area. Third, if San Diego were to apply a Lee-type regulation that prohibited the repetitive request and receipt of funds, there would be no conflict with freedom of expression. Finally, a law that is drafted as the one in Lee would clearly not be greater than necessary to achieve that goal.

I. Is a Regulation upon the Activity of Panhandling Within the Constitutional Power of San Diego

As O'Brien established, and Lee followed, the First Amendment does not protect conduct. According to Lee, San Diego can constitutionally regulate the activity of panhandling. Lee's regulation against panhandling is a prohibition of the request and the receipt of funds. The clause that requires the receipt of funds makes the regulation constitutional because it is an attack on the conduct of panhandling. For example, if the regulation did not include the "receipt of funds" clause, it would be a mere speech regulation subject to the analysis in part I(A) of this paper. Additionally, if, under the regulation that was drafted, if a panhandler were to merely ask for funds and never receive them, he or she would never be in violation of the regulation. It is the completion of the panhandling act after the request that makes the violation, and that violation is conduct which the Court has said is constitutionally within the State's rights to exercise their police powers.

Breard v. Alexandria[xxxi] decided in June of 1951 involved a municipal ordinance that required door-to-door solicitors obtain prior consent before entering the premises of home owners whom they wished to solicit. The city's reason for the ordinance was that it was that the community felt that "solicitors were undesirable or discourteous, and some householders complained that, whether a solicitor was invited or not, they did not desire any uninvited intrusion into the privacy of their home."[xxxii] The Court ruled that such a regulation was not discriminatory against door-to-door canvassers[xxxiii], and as such, the regulation was well within the state's police powers.

As Lee has already established, San Diego can constitutionally aim its regulation at panhandling conduct in an effort at protecting the community. A regulation, like those in Breard or Lee, devised to control the conduct of panhandlers in a non-discriminatory way is constitutional.

II. Does a Regulation or Ban on Panhandling Further an Important or Substantial Governmental Interest of San Diego

In order for a ban on panhandling conduct in Balboa Park to be Constitutionally valid, San Diego must assert an important or substantial governmental interest[xxxiv].

San Diego has both substantial public safety and economic interests. In Breard, the Court said "[T]o the city council falls the duty of protecting its citizens against the practices deemed subversive of privacy and of quiet...The police power of a state extends beyond health, morals, and safety, and comprehends the duty, within constitutional limitations, to protect the well-being of a community."[xxxv] Like the Alexandria City Council in Breard, San Diego has the need to prevent unwanted panhandling. And, as the Court said that the Alexandria City Council had the power to control solicitors, San Diego too has such power.

In Lee, the interests of the Port Authority, acting on behalf of the international public it served, were numerous and the Court noted several of them. There were the interests of eliminating passengers having to circumnavigate panhandlers, costly delays as a result, and scheduling problems all of which are inherent to airports. These interests have little analogous to Balboa Park which sprawls over 1000 acres and has no scheduling to contend with. However, the Court also noted that:

face-to-face solicitation presents risks of duress that are an appropriate target of regulation. The skillful, and unprincipled solicitor can target the most vulnerable, including those accompanying children or those suffering physical impairment and who cannot easily avoid the solicitation. The unsavory solicitor can also commit fraud through concealment of his affiliation or through deliberate efforts to shortchange those who agree to purchase.[xxxvi]

Lastly, the Court noted that because of the hasty environment in the airport people were unlikely to stop and formally complain to airport authorities about the problem.

The latter of the enumerated interests the Court addressed involved the public safety side of San Diego's argument. Clearly, these interests are not exclusively inherent to airports. The problems of panhandler behavior are present in airports, shopping malls, public streets, and Balboa Park too. The problem of harried travelers having little time to formally complain of panhandlers is also similar to the absence of an office in Balboa Park where people can go to complain about "stick-up" panhandlers and police are an ineffective resource and in short supply in both places to pick up the slack. Since there is no extra-legal way to insure that panhandling is honest, San Diego, and all cities and states have an interest in curtailing or at least controlling panhandling wherever it may exist. This could be a fair ground, Heffron, your front door, Breard, your post office, Kokinda, or your park.

The former interests asserted in Lee, address the bigger economic picture. They speak of the cost of delays to passengers, the airport, and the individual airlines. There is also the downstream cost effect to consider as missed planes can cost businesses awaiting the arrival of an air passenger. Although panhandling alone was not the sole culprit in economic losses in the airports, it was a culprit nonetheless. In San Diego's case, there is the real effect of lowered patronage and attendance in the Park and the downtown district. Each museum in the park is just as dependant on admission receipt revenues as they are on tax revenues. A decrease in attendance due to a pervasive feeling of hazard and danger in the park is just as real an economic blow to San Diego as the pervasive feelings of coercion and delay are to airports and their users.

III. Is a Regulation or Ban on Panhandling Unrelated to Freedom of Expression

A regulation on the conduct of panhandling is not a ban on expression, or more specifically, a ban on the speech of panhandling. The declaration of the constitutionality of the regulation in Lee has already secured this position. O'Brien, set the Court's position on second-guessing legislative motives.

Responding to allegations that there were illicit anti-expressive motives on behalf of the government through its legislation against the burning of draft cards, the Court made clear in O'Brien that arguments which accuse a regulation on conduct as having an illicit effect on expression, were beyond the Court's inquiry. In affirming its stance of not second-guessing the motives of lawmakers, the Court said:

It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive * * * The decisions of this Court lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.[xxxvii]

Since the regulation in Lee has already established that a regulation aimed at the conduct of panhandling is not only content-neutral, but does not illicitly or otherwise impose unconstitutionally on the free expression by panhandlers, there seems little to debate. San Diego, adopting the exact same regulation for Balboa Park as the Port Authority did for its air terminals, for example, would have no difference in the conduct targeted or the interests at stake.

IV. Is a Regulation or Ban on Panhandling No Further Than Necessary to Advance San Diego's Interests

Not in opposition to that notion is Village of Schaumberg v. Citizens for a Better Environment[xlvi], a case which declared as unconstitutionally overbroad, an ordinance that prohibited door-to-door solicitors or on-the-street solicitors who did not put at least 75% of their receipts into bona fide charitable work. In Schaumberg, The Court said that charitable appeals solicitation involve a variety of speech interests including the dissemination of ideas, the propagation of views, and the advocacy of causes. Such solicitation, though, is subject to regulation. But, because charitable solicitation "does more than inform private economic decisions and is not primarily concerned with providing information about the characteristics and costs of goods and services, it has not been dealt with in our cases as a variety of purely commercial speech."[xlvii] Schaumberg is distinguishable though, because of the inherent differences between the solicitor whom the Court spoke of in Schaumberg, and San Diego's "stick up" panhandler.

Schaumberg's petitioning solicitor, Citizens for a Better Environment (CBE), was a bona fide registered charity which qualified for Federal Tax exemption[xlviii]. Additionally, the purpose of CBE was “protecting, maintaining, and enhancing the quality of the Illinois Environment." And further, CBE was an organized group whose primary concerns were to inform the public and advocate environmental concerns.[xlix] Solicitations of funds to support those efforts were neither its purpose or goal. The Court made its ruling based on the image CBE portrayed as a public works charitable solicitor.

"Stick up" panhandlers, on the other hand, have no broad public interests and pursue solicitation not as a charitable function, but as a vocation. They do not typically seek to further a public cause and are typically only concerned with their ability to secure loose change or bills. They do not organize and they do not put the money they panhandle back into public work. However, although the "stick up" panhandler sells no product, he is not outside the commercial sphere because he provides the service of tacitly or openly exchanging an idea[l] with his audience and imparting upon them an eleemosynary feeling.

Clearly, commercial speech need not be void of all ideas to be commercial. The service provided by a panhandler, though perhaps lower on a respectability scale and not in a traditional sense, is no less real than paying a counselor for the opportunity to purge oneself of guilt or paying an entertainer for the good feelings he or she imparts to an audience. As with the counselor or entertainer, their advertisement for you to spend your money on them is as commercial as the panhandler requesting money. And, as the counselor or entertainer, the "stick up" panhandler panhandles with the motivation of profit. It is that profit which takes his activity into the commercial sphere and distinguishes it from the non-profit CBE of Schaumberg.[li]

Like Renton, San Diego is seeking to protect its residential and park areas from the secondary effects of negatively perceived and received speech practices. The unsavory types who patronize adult theaters are no more unsavory than "stick up" panhandlers, and San Diego has no less of an interest in zoning the commercial practice of panhandling away from Balboa Park than Renton does by zoning away adult theaters from residential and park areas.

What separates Renton from other speech regulation cases like Lee is that the Court upheld a zoning ordinance, not a regulation like in Lee. Additionally, the zoning ordinance was neutrally applied to stem the secondary effects of the commercial enterprise's speech activities. The key distinction though, is that the adult theaters' entire speech activities through their commercial enterprise were threatening, by their secondary effects, to certain zoned districts within the city, thus requiring the city to permit adult theaters only in certain zoned areas.

The second prong of the Court's test looked at whether there were reasonable alternative avenues for the adult theater speech. The Court noted that there were over 520 acres of city land away from the residential and park districts, which included all stages of development, for adult theaters to carry on their business under the zoning scheme.[lxvii] Therefore, under Renton, San Diego need only zone panhandling out of the park and into the warehouse districts, where the secondary effects of panhandling are minimized. As they too are in various stages of development and cover vast areas of land, the warehouse districts closely match the areas in Renton where adult theaters were permitted to exist.[lxviii]

By San Diego zoning panhandling into the warehouse district, a possible First Amendment argument could arise that there is diminished pedestrian traffic against which panhandlers may apply their trade as compared to downtown or the park, and thus a constitutional violation still exists. However, the Court said in Renton, when Playtime Theater objected to the zoning on the grounds that there were no commercially viable sites available in the permissible areas, that "respondents must fend for themselves in the real estate market, on equal footing with other prospective purchasers and lessees [and the zoning] does not give rise to a First Amendment violation."[lxix] This means that San Diego needs only to provide the opportunity for panhandlers to panhandle, it does not have to guarantee success at it or guarantee droves of would-be-targets.

"Stick up" panhandling, as explained in Part II(A) of this paper, is a commercial activity. San Diego, as per Renton, is free to include or exclude panhandling in its zoning scheme just like it would any other commercial practice. In an effort to clear Balboa Park of the scourge of panhandlers, San Diego may constitutionally zone their trade to an environment less susceptible to damage from their practices.

[i] According to an article by Robert Showley, San Diego's Crown Jewel Touches Lives of Millions, in the May 23, 1993 edition of The San Diego Union-Tribune, the city council has approved a policy aimed at financing changes now budgeted at nearly $130 million. This budgeting was triggered by fear of loss of park services due to lack of maintenance and the overrun of criminals. The city, seeing the need to preserve Balboa Park has gone to great lengths to fund its proposed development and preservation and to wit, has raised the city's hotel-room tax to generate more than $5.5 million annually solely for the Park.

[ii] 112 S. Ct. 2701 (1992).

[iii] 391 U.S. 367 (1968).

[iv] 447 U.S. 557 (1980).

[v] Id. at 566.

[vi] 475 U.S. 41 (1986).

[vii] Lee, 112 S. Ct. 2701.

[viii] Id. at 2704.

[ix] Id. at 2704.

[x] 112 S. Ct. 2711, 2721.

[xi] Lee, 112 S.Ct. at 2705.

[xii] 444 U.S. 620, 629 (1980).

[xiii] Id. at 632.

[xiv] Though protected, no form of speech is absolutely protected. The Court has permitted time, place, and manner restrictions under a variety of circumstances. For example, see Benjamin R. Ward, Et. Al., v. Rock Against Racism 491 U.S. 781, in which the Supreme Court upheld a New York City regulation on the sound volume of performances at the Naumberg Acoustical Bandshell in New York City's Central Park. And, Kovacs v. Cooper 336 U.S. 77, in which the Supreme Court upheld a Trenton, New Jersey ordinance prohibiting the use of "sound trucks" or any instrument which emitted a loud or raucous noise on city streets. In both cases, the principal, though not sole, purpose behind the regulations was the protection of the citizenry from uninvited and excessive sound bombardment. In both cases, the Court held these not to be regulations aimed at the content of speech, but rather at the manner and place the speech was delivered. The reason these cases are not explored in this paper is that, if used as a direct corollary, there would be little gained for San Diego in regulating the sound level of panhandling. More importantly though, these cases, if used to demonstrate how San Diego can regulate the time, place or manner of panhandling, still fail to prove useful in stopping San Diego's problem with panhandlers. San Diego can implement all sorts of rules, even quirky ones that might pass constitutional muster, but none of them can eliminate panhandling.

[xv] Lee, 112 S.Ct. at 2705.

[xvi] Id. at 2715.

[xvii] In Lee, the Court's analysis of forums employs a strange bit of logic in that it does not look at the individual fora and its particular use, but rather it looks at the species of fora and lumps all like-fora together. We see this in Lee where Chief Justice Rehnquist separates public airports from other nodes of transportation, but never distinguishes the Port Authority's airports from other public airports. Chief Justice Rehnquist accomplishes the grouping of all public airports together by noting that airports are recent creations and do not have a tradition of being public forums.

Applying the reasoning of fora-grouping to a newly built public park, the public park, by virtue of its fora-tradition, is always going to be by definition, a traditional public forum, and a government could never establish a new public park that was not a traditional public forum. And a new public park, even if established for certain exclusive uses (lets say baseball fields), could never be a designated public forum. Ultimately, the analysis of the distinction between a new public park from established public parks is moot. The Court would, under the current rule, apply the same strict scrutiny standard when reviewing a regulation on speech activities in any public park, be it traditional or designated. However, if the Court takes a new view on its differing standards between traditional public forums and designated forums, the difference in the definition of a park as traditional verses designated may perhaps change the outcome. For purposes of this analysis, however, Balboa Park is a public park and as such is by definition, a traditional public forum; even 125 years of use by the San Diego community attests to that.

[xviii] 497 U.S. 720 (1990). See also United States v. Kokinda, a case in which the Supreme Court upheld a ban on solicitation on United States Postal Premises.

[xix] See generally, Heffron, Secretary and Manager of The Minnesota State Agricultural Society Board of Managers, Et. Al. v. International Society for Krishna Consciousness, Inc., Et. Al., 452 U.S. 640, in which the Supreme Court upheld a regulation by a state organization over a state fair ground prohibiting free roaming solicitors who asked for donations and required them to do their solicitation from booths in designated areas; Society for Krishna Consciousness v. Lee, 112 S. Ct. 270, 1992 U.S. Lexis 4532, in which the Supreme Court held that private airport terminals were not public forums and that a complete ban on solicitation within them was reasonable; Cornelius, Acting Director, Office of Personnel Management v. NAACP Legal Defense and Educational Fund, Inc., Et. Al., 473 U.S. 788; U.S. v. Kokinda, 497 U.S. 720, in which the Supreme Court held valid the exclusion of non-charitable political solicitation advertisements from the government publication Combined Federal Campaign, a unified charity drive aimed solely at federal employees.

[xx] Kokinda, 497 U.S. 720.

[xxi] Id. at 732.

[xxii] Id. at 733.

[xxiii] Heffron, Secretary and Manager of the Minnesota State Agricultural Society Board of Manager, Et. Al. v. International Society for Krishna Consciousness, Inc., Et. Al., 452 U.S. 640 (1981).

[xxiv] Citing Adderly v. Florida 358 U.S. 39, 47-48.

[xxv] Heffron, 452 U.S. at 647.

[xxvi] Lee, 112 S. Ct. at 2708.

[xxvii] Id. at 2720-2721.

[xxviii] O'Brien, 391 U.S. 367. In its holding, the Court took note of the fact that the Federal law was aimed not at the expression in the intentional destruction of draft cards, but the conduct of destroying draft cards.

[xxix] Id. at 376.

[xxx] Id. at 376.

[xxxi] 341 U.S. 622 (1951).

[xxxii] Id. at 624.

[xxxiii] Id. at 637.

[xxxiv] See United State v. O'Brien, generally and at 391 U.S. 367, 375.

[xxxv] Id. at 639.

[xxxvi] Lee, 112 S. Ct. at 2708.

[xxxvii] O'Brien, 391 U.S. at 382.

[xxxviii] Which to achieve San Diego's motives would have to be a seldom visited area.

[xxxix] Another problem in itself, which will be addressed in the panhandling as commercial practice section of this paper. As a preview, the commercial practice argument says that panhandling is a commercial practice which, like all other commercial activities, San Diego is free to regulate. To keep the city streets and parks free of panhandlers, San Diego need only re-zone the city to permit panhandlers only in specific areas. Conceivably, San Diego can zone the panhandlers right out of downtown and into a less populated commercial district.

[xl] See Posadas de Puerto Rico Associates, DBA Condado Holiday Inn v. Tourism Company of Puerto Rico, Et. Al. 478 U.S. 328, generally.

[xli] Breard, 341 U.S. at 641.

[xlii] Central Hudson, 447 U.S. 557.

[xliii] The utility in Central Hudson sought to advertise the use of low wattage appliances which would have been an encouragement to reduce energy consumption. The utility and the N.Y. PUC were fighting the same battle, but as the Court recognized, the PUC rule made the utility's promotion of energy consumption consciousness impossible.

[xliv] Central Hudson, 447 U.S. at 566.

[xlv] Id. at 560.

[xlvi] Schaumberg, 444 U.S. 620.

[xlvii] Id. at 632.

[xlviii] Id. at 624.

[xlix] Id.

[l] Which may be on the themes of poverty or homelessnesss. In some cases, though, the panhandler provides none of that as they are mere scam artists. Additionally, the panhandler could impart by their appearance, the ideas of drug addiction and alcohol abuse. Unfortunately, the willing target could be reaching into their pocket just to unknowingly provide the panhandler with their next hit.

[li] The existence of the commercial element separates "stick up" panhandlers from other solicitors who might be working for non-profit groups or bona fide charities. This distinction is extremely helpful for San Diego because in the argument that panhandling is just speech and conduct without commercial features, San Diego has to implement a content-neutral regulation that would effect all solicitation. A broad regulation of that nature is necessary to keep the regulation constitutional. If San Diego were to single out panhandlers in

a speech regulation, there would be problems of the facial and applied neutrality of the law. However, since panhandling has a profit motive, and charitable or political solicitors often do not, San Diego can single out panhandlers in a commercial regulation while leaving the United Way, for example, free to do unhampered fund raising. As a note, if San Diego were to be displeased with the conduct of solicitors in general, it would still be free to broadly regulate the speech of all solicitors with regard to time, place, or manner.

[lii] Breard, 341 U.S. at 641.

[liii] 425 U.S. 748 (1976).

[liv] Id. at 761.

[lv] Id. at 770.

[lvi] 478 U.S. 328 (1986).

[lvii] Id. at 331.

[lviii] Id. at 340.

[lix] Id. at 341.

[lx] Id. at 341.

[lxi] An interesting thought here is that the Posadas Court upheld a ban on commercial speech which was a total ban and whose breadth was the span of the entire island of Puerto Rico. Although this paper merely inquires about regulation in Balboa Park, Posadas clearly establishes that San Diego ought to be able to ban panhandling from the entire county. After all, if a regulation can cover an entire United States territory,, why can't one cover a much smaller area?

[lxii] 475 U.S. 41 (1986).

[lxiii] Id. at 43-44.

[lxiv] Id. at 41, 46.

[lxv] Id. at 50.

[lxvi] Id. at 48.

[lxvii] Id. at 53.

[lxviii] This may prove more difficult than merely adding a no panhandling addendum to the current zoning scheme, because San Diego is littered with mixed use zoning. Often, neighborhoods in San Diego encompass single-dwelling residential, multiple-dwelling residential, and commercial plots all on the same block. This does not mean that re-zoning won't work. It may merely involve some re-zoning trade offs, plus, the warehouse district is zoned solely for commercial activity.

[lxix] Renton, 475 U.S. at 53-54.