Does Free Speech Protect the Right to Panhandle?

Virginia cracks down on panhandling.

Americans give a lot of lip service to the principle of free speech. They have a harder time putting the principle into practice. Even the nation’s Founders, who granted the First Amendment primacy of place in the Bill of Rights, were, within just a few years, passing the Sedition Act – which made it illegal to “write, print, utter, or publish” anything that might bring the federal government “into contempt or disrepute.” This was a good couple of decades at least before the Internet came along.

That disposition lives on today. Earlier this month a state lawmaker in Georgia renewed his call for legislation making it a crime to alter a photo in a manner that “causes an unknowing person wrongfully to be identified as the person in an obscene depiction.” (Some wiseacre had Photoshopped his head over a porn star’s body.) Asked whether this might raise any constitutional issues, the lawmaker Smith — whose first name, appropriately, is Earnest— solemnly declared, “No one has a right to make fun of anyone. It’s not a First Amendment right.”

Smith’s comments are funny, but restrictions on panhandling are not. And they are especially unfunny in Charlottesville, Va., a city sometimes referred to as “the People’s Republic of” because of its liberal (for Virginia) leanings. Charlottesville is home to UVa, the university founded by Thomas Jefferson (who was no fan of the Sedition Act). It is also home to the Thomas Jefferson Center for the Protection of Free Expression. And it is home to the Downtown Mall — a quaint run of shops and cafes where you are not allowed to ask people for money within 50 feet of two cross-streets.

Five homeless gents took objection to that ordinance and, with the help of the ACLU, filed suit against it. A lower court sided with city, but last week a three-judge panel on the 4th Circuit Court of Appeals reversed that decision and sent the case back for further review.

Charlottesville is just the latest in a long line of burgs from Medford, Ore., to Macon, Ga., that have tried to bring the hammer down on panhandlers. And like those other cities, Charlottesville has tried to defend its restrictions as purely neutral measures meant not to silence speech but to achieve some other legitimate government end. Richmond and its county neighbor Henrico, for instance, have tried to drape their repeated efforts at censorship in the cloak of public safety.

Which, as everyone knows, is bunk. Because the restrictions on soliciting never seem to apply to teen-agers in bikini tops waving car-wash signs. Or to campaign canvassers seeking petition signatures to get political candidates on the ballot. Or to firemen passing the boot for a local charity. Somehow it’s only the homeless who aren’t supposed to pester anybody.

Courts have struck down panhandling ordinances time and again. In 2011, an Arizona appeals court ruled that Phoenix could not ban panhandling after dark. Last March, a federal judge ruled against Utah’s anti-panhandling law. In August, a federal judge ruled against Michigan’s state law against panhandling in public places. Time and again the courts have found, as the 4th Circuit did last week, that “begging constitutes protected speech.” But cities across the country keep passing anti-panhandling ordinances anyway.

And we all know why: The homeless are dirty and smelly and not the sort of folks the local Convention and Visitors’ Bureau would put on a brochure. As Honolulu city councilman Charles Djou said a few years ago, he wanted “to make sure tourists are comfortable visiting Hawaii and are not constantly accosted for money.” In short, cities are trying to afflict the afflicted in order to comfort the comfortable — especially those business owners who don’t want their money-seeking endeavors affected by the money-seeking efforts of the homeless.

Concern for the needs of the local business community goes only so far, however. Just look at Chesterfield, Va.— where local planners are deliberating over whether to relax the county’s banner ordinance. At present, a business can’t put up a banner more than 60 days out of the year – and even then it has to get permission first. County leaders are pondering whether to let for-profits enjoy the same latitude as that currently enjoyed by nonprofits, which can put up banners 120 days a year.

(Pause for a moment to marinate in this irony: One of the most liberal cities in Virginia restricts the free-speech rights of the indigent, while one of the most conservative localities in Virginia severely restricts the free-speech rights of business owners.)

Not everyone in Chesterfield thinks a looser banner ordinance is a good idea, however. Russell Gulley, a member of the county planning commission, says he hasn’t “seen any empirical data that shows that a change in the banner ordinance is going to have a positive economic impact on the county.”

Hang on a sec. That’s the test now? The right to free speech is contingent on “empirical data” about “economic impact”?

Sorry, that sounded sarcastic. Reminder to self: Must take more care not to write anything that could bring government into disrepute. No one has a right to make fun of anyone!

This article originally appeared in the Richmond Times-Dispatch.

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  • John||

    Which, as everyone knows, is bunk. Because the restrictions on soliciting never seem to apply to teen-agers in bikini tops waving car-wash signs. Or to campaign canvassers seeking petition signatures to get political candidates on the ballot. Or to firemen passing the boot for a local charity. Somehow it’s only the homeless who aren’t supposed to pester anybody.

    As much as a love young women in bikinis, I would ban that horse shit too.

  • Pro Libertate||

    What? Your card, John. Hand it over.

  • John||

    Leave me alone. I hate people out begging for money. If I want to give your cause money, I will. Don't come near my house or my car.

  • Virginian||

    The real problem John has with cheerleader car washs is that the ladies are svelte and toned. He needs something a little on the larger side. Like a church supper in Wisconsin.

  • John||

    You know it is a good thing that no one else makes that same tired joke like 400 times a day.

  • Virginian||

    Oh come on, if you're going to lob softballs, I'm gonna swing for the fences.

  • 34lbs||

    John likes fat chicks.. haha

  • Pro Libertate||

    I have a cunning plan. Charities should hire strippers or, better yet, young, attractive, not-very-dressed women to solicit donations on the road. That sort of activity has been (probably illegally) banned in some places for commercial endeavors, but who is going to stop Sluts for St. Jude?

  • Raston Bot||

    I only get the grime scrubbed off my truck at fundraisers. And that is not a euphemism.

  • lap83||

    I'm pretty sure hobos are still free to invite people to their private residences to ask them for money. Oh wait..

    But seriously, does the first amendment protect the right of those without private property to use public property any way they wish?

  • albo||

    No.

    I have no problem with vagrants panhandling in public places, as long as they don't bogart a portion for themselves.

    Public spaces are for everyone's use, not for you to claim and put up a tent so you can do some urine-stenched urban camping.

  • lap83||

    In my experience, most people in hobo-filled areas will even put up with the urine stench. The main problem arises with the crazier homeless people accosting and scaring away everyone who tries to come into a shop. That's when businesses get up in arms.

  • Tony||

    Clearly panhandling should be considered protected speech. There's no constitutional right to be free of people talking to you on the street. Simply enact programs that feed, house, and promote upward mobility for the poor and you don't have to deal with the free speech question.

  • lap83||

    Yeah, because making it possible for people to get anything they want without earning money has been proven to make people MORE motivated to work for a living, for fun...or something.

  • Tony||

    "Basic needs" does not equal "anything they want."

    If your basic needs are met, you are free to go be productive. Economies in which people spend all their time focused on meeting basic needs don't tend to be very advanced ones.

    Not that having a decent standard of living and a modern, innovative economy are relevant when all you care about is "motivating" people out of what you consider their moral failings.

  • lap83||

    I don't have to make a moral judgement to know that there is less motivation to work when everything is free. Morality has nothing to do with it, in fact. It's human nature.

  • Tony||

    I didn't say make everything free.

  • 34lbs||

    Yes Tony.. lets enact programs that promote upward mobility for the poor, lets first start by reducing/abolishing minimum wage so that the unskilled can be provided with the experience and training to bring themselves into a higher income bracket, and get rid of licensing regulations that stifle competition and keep the willing and able out of the business.... of business. I don't get you bro.. you know that the Reason(tm) we support economic liberalization are for the same reasons you support economic intervention, we both want a better world, where the poor can be fed and feed themselves, where children can receive an education, and people can express their self-determination, we believe that the ethical and moral positions more than often overlap with the pragmatic.

  • InlineSkate||

    The definition of "basic needs" gets expanded pretty damn quickly.

    Pretty soon basic needs encompasses everything but a weekly steak dinner.

  • Sevo||

    Tony| 2.27.13 @ 12:35PM |#
    ..."Simply enact programs that feed, house, and promote upward mobility for the poor and you don't have to deal with the free speech question."

    Shithead, you're on to something!
    Get the mucking gov't out of the way and let the people make money.

  • Deputy Van Halen||

    Easy for libertarians to cry and moan that first amendment rights are under attack (hint, they're not) when it's not the value of their property or businesses that suffer because of panhandlers.

    Although they might not admit it, I'm almost positive that the powers that be at the Reason Foundation or Cato Institute would immediately call the police if an army of homeless people set up shop right outside the property line of their headquarters. Or maybe try investing money in a business and see your customers go somewhere else because panhandlers are sitting right outside your door. That's ok, you'll have lots of time to read the Federalist Papers instead of helping customers.

  • Masturbatin' Pete||

    I would love to see a whole bunch of bums descend on the sidewalk outside Reason's Washington HQ, harassing everyone for spare change and overpowering them with their stench.

  • Apple||

    Maybe we can have some sort of compromise, where the homeless are free to ask me for money, any time any place, and I'm free to answer with my fist.

  • Bernieyeball||

    It is annoying enough to have anyone beg me for cash. It is even more annoying when they lay the "god bless you" guilt trip on me. (as if they can tell god what to do)...my reply is to tell them that I have been out of work for 3 years, which is true, and that I need $200 for Health Insurance, also true.
    I usually stick my hand out palm up and say "Can you help me out?"
    They leave me alone after that.

  • Deputy Van Halen||

    Not to mention the fact that at least half of all panhandlers are using the money for drugs, usually heroin or crack.

  • XM||

    So they're libertarians? Now I get why local governments are after them.

  • 34lbs||

    I mostly give food, they never reject it, they are fucked in the head but they've at least taken the first step of realizing it.

  • ΘJΘʃ de águila||

    "Korean War Vet Single Mother Will Work For Food"

  • Azathoth!!||

    What utter stupidity.

    Cities are not making these laws because homeless people are speaking. They're making them because homeless people are occupying sidewalks, unrinating and defecating in the streets, demanding cash rather than simply asking for cash.

    And to compare this to bikini car washes or firemen passing around the boot--the car washes may used donated space to do their washing, but they are offering a service for sale--the homeless are offering what exactly? Proximinty to bodily parasites? And the firemen are also permitted, and are not threatening.

  • GregMax||

    So on the national level our "great leaders" feel emboldened by public idiocy to impose their will on the populace by forcing patronizing rules that are devoid of Constitutional authority . . . and we're all surprised that douche bags at the state and local level are also gonna mimic this.
    People love to control other people . . . and then there are those who don't but they're not organized well.

  • Tony||

    Is there any libertarian who isn't willing to reject the libertarian argument for something if it makes him the slightest bit uncomfortable? I've never met one. You never talk about the negative consequences for you. It's always a utopia for you.

  • Joao||

    This is a hard one.

    I will say this much: It's not the speech; it's the actions of these individuals that may be illegal, or at least considered a public nuisance.

    It is a sales pitch that you MUST hear, not a social or political message that you can choose to decline.

    What's more, that sales pitch erodes the sales of the shop owners, not in competing for the customer's dollars, but in creating an environment conducive to trade. An environment which the shop owner likely pay higher taxes to facilitate and the beggars pay nothing towards.

    I don't know about all this. But, I know I don't like individual that can think of no better way to improve their situation than to beg.

    They need a lesson in Free Will.

  • Robert||

    This issue interests me not primarily for the freedom of speech issue, but the issue of the motiv'n of bans on begging. I brought this up here yesterday in the thread on marketing food to children, saying it had the same motiv'n as bans on begging and several other restrictions on liberty: People don't want to say no, so they welcome the opp'ty to be deprived of the choice. (Even with requests by children, parents will commonly try to deflect responsibility to each other for denying them.) Admittedly there are add'l motiv'ns with beggars: ass'n with more-than-requests which are hard to prove legally as more-than-such, bringing down the quality of the vicinity, and the public property problem; but I maintain that part of it is that people don't want people -- even bums and even themselves -- to think of them as ungenerous, and would rather not be confronted with such a choice.

  • ||

    It would depend on whether you are actually accepting money, or doing the panhandling as performance art.

    If the act of actual begging on the street is protected by the first amendment, then it could be used to overturn almost every law on the books. Burglary as a form of self-expression might be taking it too far, but using an artistically designed hypodermic needle to inject heroin while dancing an interpretive dance would certainly be covered.

  • Oaken45||

    my buddy's half-sister makes $72/hour on the internet. She has been unemployed for nine months but last month her pay was $18223 just working on the internet for a few hours. Read more on this site http://WWW.FLY38.COM

  • wwhorton||

    Honest question: if I ask someone for a cigarette, is that panhandling? Is that effectively any different than if someone comes up to me and asks me for some spare change?

    I'm not a big fan of panhandlers stopping me for a five minute sales pitch, and if I owned a business I would definitely not be a big fan of homeless people with a screw or two loose hanging out in front of my store scaring people away. I also think there's an important difference between speech used for expression and communication, and speech used to acquire profit, which is begging or panhandling. At that point I think it becomes a business activity, as odd as that might sound.

    So, I guess my problem is conflating panhandling with speech. I'm not real comfortable with making panhandling illegal in public spaces (same with loitering, honestly), but I don't like the idea of defending the practice by considering it in the same vein as making a film or discussing politics on an Internet forum, either.

    Bikini car washes are fine, though. Let's keep those.

  • Brazen||

    just as Alfred replied I am surprised that a mother can make $4084 in four weeks on the computer. did you see this page http://www.wow92.com

  • ΘJΘʃ de águila||

    Muther Fukker Brazen I am also surprised at this. Please post your personal email so we can find out more about this internet-sex ring.

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