Poverty

There's No Begging Exception to the First Amendment

Laws against panhandling are unconstitutional, yet officials keep trying.

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Credit: Ed Yourdon / photo on flickr

"Do you have the time?"

"Would you please sign a petition to support tougher clean-air rules?"

"Have you accepted Jesus Christ as your lord and savior?"

"Excuse me, but could you help out a fellow American who's down on his luck?"

In many American cities, you can ask the first three of those questions on a public street without any trouble. But if you ask the fourth, you can be arrested and jailed.

Laws against panhandling have been around for decades. In case after case, courts have ruled them unconstitutional. But municipal leaders around the country keep looking for ways to impose them.

The 4th Circuit Court of Appeals recently slapped down Henrico County, Virginia's ordinance. Until 2012 the county prohibited people who were standing in the road to distribute handbills, sell merchandise, or solicit contributions from motorists or passengers. So panhandlers asked for money sitting down. The county amended the ordinance to prohibit such activities outright, although it continued to permit, say, election volunteers to yell "Vote for Smith!" at passing motorists. Henrico claimed this was a distinction based on the "transactional" nature of soliciting and handbilling, which present greater safety issues.

Maybe so, said the court, but the county offered no evidence that this was a problem anywhere but a few select intersections. Besides, it offered no evidence that it tried to address the safety problem in other ways, but without success. For instance, it never prosecuted a panhandler for blocking traffic.

That decision followed by just a few days another in which Charlottesville, Virginia's panhandling ordinance also was struck down. The city had tried to keep beggars from a couple of locations on its Downtown Mall, using the same public-safety fig leaf Henrico used. Federal district judge Norman Moon didn't buy it.

"My examination of the record reflects that the City's focus was on panhandlers, and the City created an ordinance reflecting that focus," he wrote. What's more, "the City offers insufficient justification (much less a good explanation) for the fifty-foot measurement of the so-called buffer zone. There are other laws that permit the City to protect the public safety without burdening speech rights."

Both of those rulings leaned for support on the Supreme Court's ruling against buffer zones around abortion clinics in Massachusetts. Those zones allowed clinic personnel to counsel women on the street, but kept anti-abortion activists from doing the same—a flagrantly unconstitutional restriction based on the content of the speaker's message.

Anti-panhandling ordinances often amount to the same thing, especially when they exempt other sorts of speakers—street preachers, campaign volunteers, political protesters—from similar restraints. And everyone knows why: Panhandlers, who are usually homeless, often look like heck and smell even worse, and that's bad for business. As one Honolulu city councilman said regarding an anti-panhandling ordinance there, he wanted "to make sure tourists are comfortable visiting Hawaii and are not constantly accosted for money." In other words, he wanted to help Honolulu businesses rake in more money by ensuring Honolulu beggars raked in less. Nice.

Whether the laws are nice or not, however, is an ancillary issue. The principal question is whether begging constitutes free speech. Time after time, courts have ruled that it does. "There is no question that panhandling and solicitation of charitable contributions are protected speech," said the 4th Circuit last week. Two years ago, the 6th Circuit noted in a Michigan case that the Supreme Court has protected solicitation by groups, and—citing decisions in the Second, 11th, and 4th (the latter, again, concerning the Charlottesville ban)—held that individual "begging is a form of solicitation that the First Amendment protects" as well.

The Michigan case involved such appeals for help as signs reading "Cold and Hungry, God Bless" and "Need Job, God Bless," as well as the verbal appeal, "Can you spare a little change?" It's impossible to argue with a straight face that such communication is not speech—and, moreover, speech that harms no one.

Michigan claimed it wanted to prevent fraud (some homeless people use donations to buy booze and drugs, not food and shelter). In that case, the court said, the state should ban fraud. Banning all panhandling to prevent potential fraud is like banning all religious worship to prevent human sacrifice.

Of course, sometimes the people with their hands out can be downright menacing. They don't simply ask for your money, they rudely demand it. They tell you how much you have to pay. And then they threaten to make your life miserable if you don't comply.

We don't call them the panhandlers, though. We call them politicians.

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  1. If the Courts were willing to treat commercial speech like all speech such that any business was able to operate however and wherever they wanted and zoning laws were invalidated under the 1st Amendment, I would be inclined to agree with Hinkle here. The problem is that is now how it works.

    Begging is nothing but commercial speech. There is effectively no difference between someone asking me to give them money and someone asking me to buy whatever they are selling. Begging should be treated exactly the same way commercial speech is treated. If a city can ban things like large commercial signs or on street commercial solicitation consistent with the 1st Amendment, they sure as hell can ban begging.

    I understand and agree that commercial speech should not be second class speech under the 1st Amendment. That it seems to me is the argument here. Commercial speech should get the same protection as any other speech. Instead of spending its time defending bums, Reason’s efforts would be better spent arguing that the 1st Amendment protects commercial speech the same way it protects any other speech. Argue to protect the rights of businesses and people who work for a living and then let the bums get their rights as a necessary consequence of that. Instead, all these arguments are doing is saying “bums are special and their begging is different and better than people trying to earn an honest living”. Fuck that. Come talk to me about bum rights after we businesses get theirs.

    1. Johyn, under your rubric, what exactly is being sold by the beggar in exchange for the money?

      1. Nothing. But that doesn’t matter. The effect on the person subject to it is the same and the result sought by the person doing it is the same. In both cases the person is not doing art or pushing a political cause or opinion but accosting people in order to make a living. If it is your Constitutional Right to walk around and ask people to give you money, how is it then not my Constitutional Right to walk around and ask them to buy my product?

        1. Don’t people who work full time for charities accost people as part of earning a living?

          Don’t commercial artists produce art as part of earning a living?

          1. Sure. And that is why it is complete bullshit that there is any such thing as “commercial speech” under the 1st Amendment. It all, for the purposes of the amendment, should be just speech. That is my point. Reason shouldn’t be helping to make a special exception for begging. They should be arguing the larger issue that commercial speech is no different than any other form of speech. People have a right to speak to earn a living, be that by begging or offering a product.

      2. Feeling good about yourself?

        1. “Feeling good about yourself?”

          Never underestimate the satisfaction to be gained from saying the words “I am the real victim here.”

      3. Feeling good about being charitable if the beggar is pitiful or relieved about not being harmed if the beggar is hostile/crazy.

      4. I’ve had beggars tell me they receive money in exchange for me receiving a good internal feeling having helped someone.

    2. Also there might be less bums with less commercial restrictions. I really believe credentialing, licensing, permitting etc. is hold the economy back more than taxes. And I hate taxes.

      1. There would be a few less and the ones that were there might be selling things rather than begging. In some ways I can’t blame people for begging. It is illegal or impossible to start a street vending business in most places like poor people used to do. The only legal option open to them is begging. That is insane. If anything begging should be illegal and running a street vending business encouraged. We want people to work not beg.

        1. It’s becoming impossible to boot strap yourself any more. There are lots of businesses you can start on your own, but it is such a pain dealing with regulations. Worse yet people have become acustomed to credialism. “Can you cut my lawn? Are you licensed and bonded by the city? No? Sorry.” It’s crazy.

          1. There was a story a while back about a homeless guy in New York who started collecting old books and selling them on the street for a dollar. The experience of earning his own money transformed him and got him to stop using drugs and have some self worth. The fucking city shut his book vending business down.

            He has a Constitutional right to do crack, live in his own urine and accost people for money. But let him do something productive and start to earn a living and improve himself and the city is there to kick him back down where he was.

            That case show why Reason drives me nuts focusing so much attention on the right to beg rather than working to ensure the right to make a living. By supporting laws that just allow begging, they are helping to make the problem worse.

            1. But let him do something productive and start to earn a living and improve himself and the city is there to kick him back down where he was.

              Well, yeah. You’ve got to do it the right way, meaning that anytime you make money, the city and state gets their cut. Engaging in commerce without paying the government for the privilege is stealing. Not giving is taking and not taking is giving.

            2. focusing so much attention on the right to beg

              We’ve told you a million times to stop exaggerating.

              1. And I have told you a million times to try and get smarter and not be such an ignoramus. My words seem to have had little effect.

      2. And I hate taxes.

        Florida Man, taking the hard positions nobody else will take.

        1. Now Jessie is an honest man, a good man, but frankly, I AGREE WITH EVERYTHING HE JUST SAID!

          1. I will not stand for this rhetorical judo!

            1. Then sit down and shut up.

  2. But municipal leaders have to shield citizens from where tax and regulatory policies are leading everyone: the poorhouse.

    1. I am pretty sure the places where that is happening love bums. San Fransisco certainly loves them. Again though, I really don’t see how it is that the 1st Amendment gives me the right to beg anywhere, any time, to anyone but doesn’t give me the right to sell and market my business without permission from the government.

      1. Well the obvious answer is there isn’t a billion-dollar company called ‘Beggars, Inc.’ giving campaign contributions to politicians; as opposed to other businesses.

        Hmm, sometimes things may be EXACTLY as they seem.

  3. If the panhandler is allowed to bother ME on the street, then it’s only fair I can badger HIM on the street as well.

    Right?

    RIGHT?

    Helloooooo….

    1. Sure you can. Why wouldn’t you? Have you never seen someone give a bum a lecture about getting a job?

    2. You’re really terrible at these gotcha attempts.

  4. As long as beggars keep on moving and don’t bogart a spot on the sidewalk or other public spaces for an excessively long time or overnight, I’m fine with it.

  5. Laws against panhandling have been around for decades. In case after case, courts have ruled them unconstitutional. But municipal leaders around the country keep looking for ways to impose them. Everyone knows why: Panhandlers, who are usually homeless, often look like heck and smell even worse, and that’s bad for business

    They can also be aggressive, which is what often prompts the laws.

    1. which is what often prompts the laws.

      This does nothing to change my opinion. It falls under the same rationale as gun bans. Some people use guns in crimes so ban guns. No, the crime is the crime, not the tool.

  6. john how are you so completely missing the point? treating any kind of “commercial speech” any differently than any other kind of speech conflicts with the first amendment. They’re just a little harsher on bums than average about it

    1. To be fair, according to the Obama administration, money isn’t speech, commercial speech isn’t free speech, therefore, Obama hates the homeless.

    2. treating any kind of “commercial speech” any differently than any other kind of speech conflicts with the first amendment.

      No it doesn’t, at least not according to the courts. Google the Central Huron test. Commercial speech gets treated very differently than other forms of speech. This is why a city can ban things like “misleading advertising” or “direct solicitation” but could never get away with banning “unhealthy art” or something.

      1. Cigarette advertising. Booze advertising. Any product or service the government doesn’t like advertised they are happy to chuck the 1st Amendment right out the window.

      2. I think you meant “Central Hudson”.

  7. OT: Just got back from a lovely vacation visiting my brother in Florida. I abstained from anything political on TV, the web, ect…
    Clicked on Reason(mobile) for the first time in a week, and it seems to have been updated for the worse. If I even twitch my hand a fraction of an inch the page reloads/redirects the articleI I’m viewing. The squirrels have become even squirrelier. Anyone else experiencing this, or is it time to upgrade my phone?

    1. Reason is doing an “upgrade”. See the Border patrol article for more info.

      1. Thanks.

  8. I think John pretty well nailed it.

    Being hard on bums is, at best, a symptom. The disease is the de facto amendment of the First Amendment by SCOTUS to line out commercial speech.

    And yes, begging is commercial speech. If I can’t put a sign in front of my caf? advertising free coffee from 8 – 10 am because of sign ordinances, I don’t see why I can sit in front of someone else’s caf? begging for cash.

    1. The thing about going after bums is they have to little to no resources to defend themselves. I think that is more cruel than going after business. Please don’t misconstrue this to mean I’m not sympathetic to business. I am. I just think preying on the weak is especially loathsome.

  9. i was under the impression reason was more about discussing political philosophy than explaining the laws that currently exist. I know commercial speech is treated differently, cuz most of what I say isn’t intended to convince someone else of something

  10. The problem comes from the socialist idea that there is a Right to Movement. If we had store owners owning the sidewalk in front of their store they would then have to right to keep out those they did not want.

    The store owners would come to an agreement with other property owners in the area and determine rules for use of the road and sidewalks. For example no loitering in certain areas.

  11. that doesn’t conflict at all with a right to movement. your fist. my face.

  12. Clouseau: City ordinance 132-R prohibits the begging.
    Beggar: How do you know so much about city ordinances?
    Clouseau: What sort of stupid question is that? Are you blind?
    Beggar: Yes.

    1. Is that your minky?

  13. Actual “beggars” in Williamsburg, Brooklyn

    And people wonder why i have an occasional misanthropic streak

    1. Also = per John’s story about the homeless becoming booksellers, and the police mostly shutting them down

      it is true. in manhattan at least. It was a Giuliani era law which cracked down very hard on unlicensed street merchants. It still mostly applies.

      Williamsburg, by contrast actually made a 6 block area completely legal for street vending, and it became an open-air bazaar…. and all the former bums & heroin addicts who started to vend books? Immediately kicked all their former buddies off the block. “Bad for Business”.

    2. Artisanal poetry from a mechanical typewriter is a thing in Portland.

      I saw it once and thought it was funny, twice and I thought “Oh, Portlandia is a documentary, not a joke.”

      1. We had one of those.

        He had a folding chair. “Poems = $1”

        He also had one of those mustaches that requires waxing. By the time he showed up he was such a cliche no one even had the energy to bust his balls. Naturally, people like him vanished during winter. My friends the former heroin-junky booksellers… those motherfuckers would be out there in sub-zero temps until midnight. I had a deal with 2-3 of them where I’d buy 5 or so things at once, and then bring them back so they could re-sell them. They were my peoples.

  14. I’ve made $64,000 so far this year working online and I’m a full time student. I’m using an online business opportunity I heard about and I’ve made such great money. It’s really user friendly and I’m just so happy that I found out about it. Heres what I’ve been doing,,,,,

    http://www.work-mill.com

  15. The idea that “freedom of speech” is an absolute is ridiculous on its face.
    One cannot commit slander, nor incite to riot, nor “give aide and comfort to the enemy” should it be determined to have been done, verbally – though that one is shaky – nor yell “fire” in a crowded theater, nor myriad other restrictions on what we can say. The whole body of “conspiracy” laws are predicated on, first, verbally agreeing to breaking a law.
    The First amendment was intended to protect political speech, anything that doesn’t get rounded up by that definition, is subject to being made illegal.
    Sorry, John, that includes commercial speech and, likewise, begging.

    1. More specifically, political speech in the sense of “criticism of the government”.

  16. Not that I want to give governments any ideas, but a simple solution to begging is offer to lease the sidewalk to the business on which that portion of the sidewalk fronts.

    The businesses get a limited lease, with limited rights, but that right includes any commercial activity. Then, class begging as commercial activity.

    I think people begging is often harmless, and sometimes isn’t. My City is the warmest in Canada, and it gets more than its fair share of homeless because it is the only City in Canada you can sleep outside 350 days a year (a few days you can’t). The homeless are to a person meth heads and other types of addicts. We have no actual poor people in Canada. Almost all of them are young men who are lazy and like to party. Eventually they become crazy and actually sick, but they start out just having poor character. As a consequence these people are having an impact on lots of people livelihoods. I’ve known businesses to go under because they have homeless sleeping in their doorways all night. Customers eventually stopped showing up because they would have to step over sleeping drug addicts. I’ve known commercial property owners who couldn’t rent their premises as a result of these sorts of things.

    Not sure how you handle this. But, saying ‘FREE SPEECH!!’ isn’t covering it.

  17. I’M CURRENTLY DEALING WITH SEVERAL CASES LIKE THIS, AND WINNING! (Mostly)…
    Chandler, Phoenix, Tempe (though I made them stop over 2 years ago), and other local cities in Phoenix are declaring it is a ‘trespass’ against ‘The State’ (‘ADOT Property’, or City Property), to be on highway exits or road medians ‘for any reason other than waiting to cross’ (As I recall one city code stated).
    BUT GUESS WHAT! I HAVE FIGURED OUT HOW TO OVERCOME MORE THAN HALF OF OUR EXISTING ‘colorable laws’ because I can prove EXACTLY HOW they are ‘to the Contrary’ of the ‘fundamental principles’ of ‘Law’ in ‘the supreme Law of the Land’, especially the ‘Purpose of government’, ‘probable cause’ and ‘corpus delicti’ doctrines (4th Amend., US Supr.Ct, and ARS 13-2412), WHICH IS HOW I CAN NOW AVOID ALL “CIVIL OFFENSES”, AND I AM HERE TO DEMONSTRATE HOW TO ‘GovernPublicServants’ #LIKEaSOVEREIGN, using these ‘LawDocs’ I’ve made and Facebook Pages with those names and an upcoming YouTube Channel with videos of me demonstrating!
    (For now go to pinned post on facebook.com/GovernPublicServants to get them, FREE, of course).
    (Cont’d, 1of5…)

  18. (2of5…) THE MAIN KEY IS THIS: Americans need ONLY to ‘state…true full name’ when suspected of a ‘crime’, which requires THREE ‘elements’: evidence for ‘probable cause’ to believe they caused A) ‘injury or harm’ to another human or their equal ‘individual rights’, B) by ‘intent or inexcusable neglect’, AND C) in violation of VALID*, ‘clearly established’ criminal ‘Law’, which is (*=) neither ‘to the Contrary’ of the ‘fundamental principles’ in the Constitution and ‘Laws…made in Pursuance thereof’ nor ‘void for vagueness’ because people of avg. IQ differ on its meaning, thus violating ‘The essential elements of due process of law…notice and opportunity to defend’ ones self, to be ‘valid’ ‘Law’!
    THAT MEANS, when not suspect of a ‘crime’ (title 13 in Az, 18 in US codes), one need not even tell their name!
    THAT MEANS NO CIVIL TICKETS! EVER! And I HAVE demonstrated, and recorded it, SEVERAL TIMES! And I HAVE made Tempe stop arresting people just for begging and pulling me over just for no bike light (Mostly, but local cities and state officers not yet. Thats next).
    NEXT, I am preparing to make them pay me, LOTS of money, for ‘deprivation of rights under color of law’ and/or ‘color of law abuse’, and to make all ‘government’ in America stop enforcing such ‘colorable law’, permanently!

  19. (3of5…) Its ‘color of law abuse’/’deprivation of rights under color of law’ (i.e. to be secure from search or seizure without ‘probable cause’ to suspect you of ‘crime’), to ‘make or enforce’ ‘any Thing’ which infringes ones Liberty (freedom in general), property rights, or even privacy, for any reason other than defending the equal ‘individual rights’ of another (‘to protect…individual rights’ is the ONLY ‘Purpose of government’ in Az btw! THAT’S PERFECT!), when there IS evidence the suspected/accused most likely caused some harm to another humans equal rights!
    To punish people ONLY for disobeying orders or legislation, is enforcing the will of the majority (of voters/legislators), and is ‘to the Contrary’ of the very PURPOSE of ‘the supreme Law of the Land’! And really, is ‘treason to the Constitution’, making war against it, giving aid to its enemies in general! (As is taking jurisdiction in a criminal court without all 3 ‘elements to a crime’: ‘Corpus Delicti’, ‘Mens Rea’, & ‘Actus Reus’!).
    The whole point of the Constitution is for the avg. person to STOP BEING DEPENDENT ON ‘Lawyers’ TO TELL YOU WHAT IS ‘to the Contrary’ OF THE Constitution! (What is ‘Law’)! Thomas Jefferson warned us! He said that if we expect to be ignorant, of these ‘fundamental principles’ of ‘Law’, and free of tyranny, we wish for what never was and never can be!
    And others like Lord Acton have explained why: unrestrained, absolute power/authority, corrupts, absolutely, inevitably, inexorably!

  20. (4of5…) Thats because of the ‘seven deadly sins’, or basic animal survival instincts, inherent in the physical brain, starting with ‘Sloth’, which is HOW ‘We the People’ ALLOW the corrupt to gain positions of power and even CAUSE people in power to become corrupted, by THEIR 7 ‘Deadly Sins’ (Esp. Greed, Gluttony, Envy, and Wrath)!
    And thats how ‘The Beast’ in all humans, collectively’, destroys the Earth, through the Ten major industries in Human Society, especially three Branches of Govt. (makers, enforces, and judges of ‘Law’) and Military, as well as how WE ‘divide and conquer’ OURSELVES, collectively, through the two party political system (‘Beast’ on Land), and systems which are ‘to the Contrary’ of the ‘fundamental principles’ which actually fulfill the ‘Purpose of government’, like ‘Socialism’, ‘Communism’, and many other forms of Collectivism, where humans place the will (opinions, desires) of the majority (of ‘Law’ makers, voters and/or legislators), over the ‘Free Will’ of the ‘individual’ Human being, aka ‘Capitalism’, ‘Liberty’, ‘Freedom’, which is the only solution to overcome this ‘evil nature’ of physical reality!
    To create Order out of Chaos (‘Ordo ab Chao’), is the purpose of rational, human thought, ‘free will’ as the Bible calls it, but it is sloth, dependency on ‘government’ and ‘lawyers’, in the systems Humans create in ‘society’, which has CAUSED the fall of EVERY society in Human history….

  21. (5of5…) BUT WE HAVE THE FIRST ‘Law of the Land’ CAPABLE OF OVERCOMING THIS ‘EVIL NATURE’ OF MANKIND!
    BUT ‘A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.’, and the ‘Governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.’, ONLY! (Arizona Constitution)!
    I hope I did not post this in vain! THIS IS THE SOLUTION TO CORRUPTION IN HUMAN SOCIETY, AND ‘We the People of the United States’ of America are the FIRST Society in History capable of actually establishing a STABLE society, BUT ONLY IF ENOUGH PEOPLE LEARN HOW to ‘GovernPublicServants’ #LIKEaSOVEREIGN, with these ‘Fundamental Principles’ of ‘Law’ and ‘Administrative Remedies’, which I am putting in these ‘LawDocs’ (and making facebook pages named after these quoted phrases to share all this, FREE)!

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