PHOENIX - The American Civil Liberties Union wants a federal judge to block police in Arizona from enforcing a law making begging a crime, calling it an infringement on free speech.

ACLU attorney Dan Pochoda said the measure is unconstitutional because it makes people subject to arrest not because they are loitering, but because of what they are saying. He contends asking someone for money is no different from politicians seeking support on the same public streets.

The lawsuit is most immediately aimed at the city of Flagstaff which, in an effort to help local merchants, has used the law to arrest hundreds of people. Pochoda wants those arrests halted.

But he also wants U.S. District Judge Neil Wake to rule the state law itself is void, making it unenforceable anywhere in Arizona.

Attorney General Tom Horne declined to comment.

"It's being reviewed," he said. And Kimberly Ott, spokeswoman for Flagstaff, said city officials would have nothing to say until the council gets a chance to review the lawsuit next month.

The law has been on the books for years. But it was not until 2008 when Flagstaff police, responding to complaints by merchants, started to use it to have undercover officers make arrests.

Police admit the idea is to sweep the streets of panhandlers early in the day, before they can cause more problems later. The department even said Operation 40, as it has been called - both after Interstate 40, which bisects the city, and the 40-ounce bottles of beer popular with some - has resulted in an overall decrease in crime.

Pochoda said police remain free to arrest those who commit specific crimes. What they cannot do, he said, is this kind of pre-emptory approach.

"There's no doubt that peaceful begging is speech, fully protected under the First Amendment," he said.

His position is backed by a 9th U.S. Circuit Court of Appeals ruling in 2006 striking down a Las Vegas ordinance banning soliciting for money in particular areas of that city.

The judges in that case acknowledged the ordinance was designed not so much to stop the begging but to control "the secondary effects of solicitation." But the appellate court said the law was invalid because it affected only a particular kind of speech, in this case, begging.

Two years later, U.S. District Judge Roslyn Silver used that to strike down a Cave Creek ordinance making it illegal to stand on or near a road to beg or solicit a job.

"It prohibits solicitation speech, but not political, religious, artistic or other categories of speech," Silver wrote.

"It also prohibits solicitation on the topics of employment, business or contributions, while allowing solicitation of votes or ballot signatures."

Pochoda, in his request for an injunction, said the state law, and the way it is enforced, has the same problem.

"A solicitation to vote for a candidate or attend a concert, join an organization or eat at a particular restaurant, delivered in the same manner and tone as that for money, would not result in violation or arrest," he told Wake in the request for the injunction.

No date has been set for a hearing on the injunction request.

"There's no doubt that peaceful begging is speech, fully protected under the First Amendment."

Dan Pochoda

ACLU attorney