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.