All across America, municipalities have criminalized begging. This is bizarre. It is now clearly established that the first amendment protects people who express themselves by spending millions of dollars. How can it fail to protect people who express themselves by asking for one dollar?
Many cities have suggested that begging fails to express ideas worthy of the first amendment. Not so. Requests for charity – whether from homeless persons, Salvation Army volunteers or firefighters – express need. They do so inherently and sometimes profoundly.
During a recent retrospective on hurricane Katrina, the radio program This American Life told the story of a middle-class woman from New Orleans whose life was so thoroughly destroyed after the hurricane that she wound up at a Kmart parking lot in Dallas, begging for money so she could buy diapers for her grandkids. “They needed Pampers, they needed food,” she explained. So she sat on a curb and “begged every car that came out of that parking lot”.
The story of this woman’s plea for help was gut-wrenching. And yet, public officials across the country are trying to make what she did illegal.
Some, like Portland, Maine, have done so by banning all speech in public spaces traditionally used by panhandlers, such as traffic medians. Others, like Grand Junction, Colorado, have enacted no-begging buffer zones within which all panhandling, no matter how peaceful, is deemed “aggressive”. Because these bans criminalize speech, and because the first amendment’s free-speech guarantee does not say “except for poor people”, the ACLU and other groups have challenged anti-begging laws in court.
No one wants to be accused of stifling speech. So the champions of these crackdowns on begging say what people always say when criminalizing words: asking for money is merely conduct, and thus doesn’t deserve the first amendment’s utmost protection.
One city that has unabashedly expressed this view is Lowell, Massachusetts. Lowell has banned begging in its 400-acre downtown historic district and in numerous 20-foot buffer zones around restaurants, bus stops and other places where people might seek charity. The city reasons that substantially all begging – even standing by a restaurant with a sign that says “Please Help” – is coercive and devoid of value.
Thus, when the ACLU of Massachusetts and the law firm Goodwin Procter sued on behalf of two homeless people, Lowell compared them to vermin:
“[P]anhandling represents a raucous alternative culture that for reasons of economic dependence – or in a different view, parasitism – must occupy the same geographic space as those mainstream souls who lack the ‘need’ – or perhaps the chutzpah – to importune strangers for money.”
This view misunderstands the first amendment and offends democratic values.
Anti-begging measures contradict not one but two recent supreme court decisions: McCullen v Coakley, which invalidated a Massachusetts law creating buffer zones around reproductive health clinics, and Reed v Town of Gilbert, which invalidated an Arizona sign code because its rules hinged on what each sign said. So zones that prohibit begging are unconstitutional both because anti-speech buffer zones are problematic under McCullen, and because singling out one type of speech – begging – is content-based, like the sign code struck down in Reed.
True, panhandlers can make some people feel uncomfortable. But a listener’s discomfort, or even fear, rarely justifies restricting speech. As Slate’s Dahlia Lithwick has observed, recent supreme court speech cases have involved a “purveyor of semi-pornographic crush videos”, a “maker of rape-aspiring violent video games”, a “homophobic funeral protester” and “filthy-rich campaign contribut[ors]”. The speakers prevailed in each case, despite alleged consequences ranging from endangering animals to corrupting our entire democracy.
So the wall of anti-begging laws is beginning to crack. A federal appellate court has invalidated the anti-begging measure in Portland. And a federal district court struck down an anti-begging measure in Grand Junction. And, on Friday, a federal court struck down the Lowell ordinance.
But, beyond case law, the more fundamental issue is that begging codes risk apportioning first amendment rights by wealth. The poor cannot buy TV ads. They cannot afford lobbyists. They are not trending on Twitter. So it is cruel and unfair to say that governments can safely regulate words, including requests for charity, spoken by the poor but not by the wealthy.
If censorship cannot be justified by worries about animal cruelty or money in politics, then governments should not be permitted to ban begging just because it makes people feel icky.