Ban on BART panhandling in paid areas wouldn't violate 1st Amendment, staff lawyers conclude

OAKLAND, Calif. - A ban on panhandling inside the paid area of BART stations wouldn’t violate the First Amendment, the agency’s staff said in a new legal analysis, which is being questioned by the American Civil Liberties Union.

The San Francisco Chronicle first reported on Tuesday that  BART’s proposed ordinance to forbid asking for money, including musical performers, would apply to a “non-public forum,” staff said, because people pay to get in. The report noted that BART can restrict asking for money in the paid areas of the trains as long as the restrictions are “reasonable and viewpoint neutral,” and defined clearly enough to prevent arbitrary or discriminatory enforcement.

Specifically, BART may restrict speech in the free areas if "it provides a significant government interest...so long as the restriction is justified without reference to the content of the regulated speech and ample alternative avenues for the speech are left open," the report states. 

BART staff also pointed to transit agencies in New York, Los Angeles, Washington D.C., Atlanta, Chicago and Seattle that already forbid panhandling in their paid areas, the Chronicle reported. Agency staff will present their analysis to the board on Thursday.

BART director Debora Allen has been pushing the ban, as she said her predominantly suburban constituents don’t like the loud noise and being asked for money during their commutes in Oakland and San Francisco. 

"Five of the ten largest transit systems in America all prohibit panhandling... inside of their paid areas," Allen said. "There is no reason why BART shouldn't make it six, as we are the fifth largest transit agency in America. People come to San Francisco from all over the world and they are shocked by what they see on our transit system." 

In fact, the presentation cited some of these 300 comments tracked in a 2018 customer service survey, showing the shock that Allen referenced: 

• "Panhandlers..make BART feel scary and unsafe."
• "The homeless are really agressive about asking for money."
• "Grown adults put on 'shows' with boom boxes to intimidate and shakedown for money....My friends and family are abandoning BART in droves." 

Other riders though, supported the musicians and even the homeless asking for spare change. "The proposal to ban both panhandling and busing in BART trains and stations would be culturally harmful, socially unjust," one person wrote to BART. "I am not sure why BART is using its police force to remove people like this. Why destroy something that makes BART more pleasant and gives someone income? If anything, these people should be encouraged to perform! It makes waiting for a train that much more bearable." 

When Allen's idea was first floated in August,  the ACLU argued vigorously against the proposal, calling it restraint on free speech.  The ACLU noted that the city of Sacramento recently tried to adopt an anti-panhandling ordinance that was stopped by the Eastern District Court of California because it targeted people based on the content of their speech. 

BART staff countered that in Sacramento, the ordinance applied a "content-based restriction to speech in a traditional public forum," and BART's proposed ordinance would apply to a non-public forum. 

BART performers already cannot use "unreasonably loud" sound equipment on the trains and if they do, could be cited under current California law. However, there is currently no solicitation or panhandling law or policy on the books. 

The ACLU has battled this issue around the country, including in Iowa, where they demanded three cities there repeal their bans on panhandling.

On Tuesday, ACLU staff attorney Abre Conner said she hasn't yet seen the official language of the would-be BART ordinance, so she couldn't comment on its constitutionality or not. But she did assure the agency that if they persued this avenue, BART would be sure "to face legal challenges." She cited a 2015 Supreme Court case, Reed v. Town of Gilbert, where writing for a majority, Justice Clarence Thomas wrote that the town's sign ordinance imposed content-based restrictions that did not survive strict scrutiny because the ordinance was not narrowly tailored to further a compelling government interest.

Conner also questioned why BART staff would be spending their time and money crafting such anti-homeless measures when in fact, the agency could be using this "opportunity and resources to actually help individuals with basic human needs." 

ACLU of Northern California encouraged the public to submit their comments to BART board members on the issue by Thursday morning. They tweeted out a form from bart.gov.  

KTVU's Allie Rasmus contributed to this report.