Editor’s note: This story by Christine Wisniewski was published by the Bennington Banner on Sept. 12.
BENNINGTON — The Select Board has unanimously voted to eliminate ordinances that prohibited panhandling after the Vermont ACLU stated these ordinances infringe upon the First Amendment.
Town Manager Stuart Hurd and other town officials received the four-page letter Aug. 28, written by Vermont American Civil Liberties Union staff attorney Jay Diaz, which outlined the unconstitutionality of Bennington’s panhandling ban. This letter was also sent to six other Vermont towns including Brattleboro.
Upon receiving the letter, town officials agreed they would not oppose eliminating the ordinances if the claims of unconstitutionality were indeed true.
During Monday’s regularly scheduled meeting, Hurd’s recommendation to the board was to repeal and eliminate the sections of “Article 17: Improper Use of Public Way and Abatement of Public Nuisances” that dealt with “aggressive manner” and soliciting.
Hurd’s suggestion was met by general support from the rest of the board.
“I don’t think by not having this we’re going to have a deluge of folks coming in and soliciting,” said Select Board Chair Thomas Jacobs.
“I think the ACLU’s letter was a little bit off-putting …” said board member Donald Campbell, adding that he believes the ACLU’s intentions were ultimately good-natured. “Things have changed since 2014 and we don’t need [the ordinance] at this point.”
Campbell added that he would prefer to edit the ordinance to bring it up to “a more modern perspective.”
Select board member Jeannie Jenkins supported the idea of nixing the panhandling ordinance completely.
“I’m pleased to see it removed,” she said. In 2014, the town adopted changes to the Public Ways ordinances to include prohibition against aggressive panhandling. Hurd said the prohibition came about after downtown merchants were concerned about aggressive panhandlers preying on those entering and exiting downtown businesses.
However, Hurd believes these ordinances have not been enforced in “quite some time.” Since 2014, the local police have developed information cards and other ways to help people who have resorted to panhandling.
“When someone is panhandling, [police] can direct them to social services that can help them,” Hurd said.
Now that the motion to accept Hurd’s recommendation to overturn the panhandling ban has been unanimously approved by the board, there is a 60-day period where the decision can be appealed by petition.
Bennington resident and ACLU member Bruce Lee-Clark spoke to the board in support of the ACLU’s letter, mentioning that he attended the meeting to speak as a town resident, not a member of the ACLU.
“Their letter may be off-putting but it is in fact constitutionally correct,” he said.
He argued that limiting speech in any way has to have “a compelling interest,” and Bennington’s panhandling ban did not have such compelling interest. He also said that the eliminated sections of the ordinance put police in a difficult position to figure out what constitutes “aggressive panhandling.”
“Even when speech annoys us — and yes it can — the government may not limit it without compelling reasons,” Lee-Clark said.
“All I can say is thank you for eliminating what should have never been passed in the first place,” he added.
He also urged the board to carefully consider passing ordinances that could infringe on First Amendment rights.
“Can we think twice or three times before we start traipsing over the First Amendment?” he asked. “It would be really helpful for us not to do that.”
Select board member Carson Thurber supported the deletion of the ordinance, but reminded the audience that the people who originally drafted the paragraphs put much thought into it and did not pass it hastily.
Jacobs was a member of the board when the ordinance was passed and said it was not an easy process.
“We were persuaded as the Select Board sometimes are, by the apparent magnitude of the issue that probably could have been addressed in other ways rather than the ordinance,” Jacobs said.
Board member Jim Carroll voiced his support for overturning the ban, but also stuck up for previous board members who passed it.
“I honestly believe that all of [the Select Board members] who voted for it thought they were doing what they thought was best for the people of Bennington,” Carroll said. “That’s one of the risks that all of us endure with respect to anything we vote on.”
