The ACLU contends in a letter to the county that the ordinance “likely is unconstitutional because it lacks the tailoring required of a legitimate time, place, and manner restriction.”

The supervisors unanimously voted March 26 to regulate solicitation of motorists as a traffic safety ordinance. That includes the solicitation of money, distribution of leaflets and other materials or offering services or items for sale to motorists from public medians in the county. Violators would be fined. The orddinance was tailored under language passed by the General Assembly.

But Claire G. Gastañaga, executive director of  ACLU of Virginia, wrote in a letter dated April 10 to Chairman Jim Adams and other members of the Henry County Board of Supervisors that the ordinance's "broad provisions prohibiting solicitation violate the First Amendment of the United States Constitution and would not withstand a legal challenge.”

She said that the Supreme Court has held that the protection of free speech under the First Amendment "has been extended to individuals who are begging.

“Because solicitation is constitutionally protected speech, any regulation of it must, at a minimum, satisfy the requirements for time, place, and manner restrictions," her letter said. "That is, they must be content neutral, be narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

“The ordinance passed by the Henry County Board of Supervisors is not narrowly tailored to serve the county’s interest in safety and efficient traffic flow. The ordinance applies to a substantial number of situations in which no traffic problems or safety issues are likely to arise."

She cited the example of solicitation of people in a parked vehicle and a court case in Henrico County that found a similar ordinance violated the ability to distribute leaflets and solicit both political and charitable donations and to sell services. 

Gastañaga wrote that the court found that, "'given the absence of evidence of a county-wide problem, the county-wide sweep of the amended ordinance burdens more speech than necessary.’  The same is true of the Henry County ordinance.

“In sum, the Henry County ordinance as written is likely unconstitutional because it lacks the tailoring required of a legitimate time, place, and manner restriction. We urge the Board of Supervisors to meet with their counsel, reconsider the ordinance, and make appropriate revisions so that it protects the constitutional rights of the county’s residents.”

Board of Supervisors Vice Chair Debra Buchanan, who initiated consideration of the ordinance, said Tuesday that she had not seen the ACLU’s letter and did not know about it.

“I feel like the county attorney will do his homework on it, and it will be addressed one way or another,” she said.

County Administrator Tim Hall and Deputy County Administrator Dale Wagoner referred questions to County Attorney George Lyle. Board Chairman Jim Adams and Supervisors Tommy Slaughter and Ryan Zehr could not be reached for comment.

“I just got the letter. The board has not discussed it. I assume we will talk about it with our attorney in our next meeting in closed session under legal matters,” Supervisor David Martin said.

“I’m going to wait and talk about it with the board of supervisors," Lyle said. "I’m not going to share [with the Martinsville Bulletin] what legal advice I will give them.”

The board is next scheduled to meet Tuesday.

At the supervisors’ meeting on March 26, Lyle told the board: “Currently as it stands under state law, you are not allowed to solicit motorists, distribute handbills, request contributions, sell items to people on the highway … You’re not supposed to stand in the median or the roadway and do that. But under the state code it’s a little bit difficult to enforce because it involves the traffic code and the administrative code. So the General Assembly authorized counties and cities to adopt the ordinance that  I drafted for you. When I say drafted, I really copied the language.

“It makes it clear it’s a violation of the county ordinance traffic code to solicit any type of business from a motorist in a motor vehicle on either the highways, any public roadway in the county."

Martin said he had not reviewed the letter in detail. “I certainly want to get legal advice. I want to get firm legal advice before we move forward [in] writing a response to the ACLU or changing policy,” he said.

Supervisor Joe Bryant said he had not received the letter. “Our ordinance basically mirrors the state ordinance,” he said.

Bryant said he feels people standing on roadways soliciting motorists is dangerous because there could be rear-end collisions or someone could step out into traffic and be hit. Also, one man who solicited near Walmart had North Carolina license plate on his vehicle, which indicated he was not from the area. In that case, the man said he was a disabled veteran. Bryant said Veterans Administration has programs to help such people, and also there are other organizations and resources in the community to help people in need.

Buchanan had said some motorists have complained about situations in which they had been in line to move forward and someone soliciting stepped in front of them, or the motorist wouldn’t roll down the window, and the person soliciting made a noise at them. She said she has heard about solicitation of motorists at certain busy intersections, such as the road leading to Walmart.

"With our homeless, we certainly don’t want to do anything to hurt them," Buchanan has said. "We don’t want to prolong homelessness or anything like that. We need to, as a community, as members of churches, as clergy, to make sure  they know what resources are available to help them when they need it."

Prohibitions in Henry County's ordinance

• The distribution of handbills, leaflets, bulletins, literature, advertisements, or similar material to the occupants of motor vehicles on highways or on public roadways and medians  in the county.

• There will be no asking for donations from the occupants of motor vehicles.

• There will be no selling or attempted selling of merchandise or services.