October 2013 Bar Bulletin
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October 2013 Bar Bulletin

The First Amendment: A Constitutional Right To Beg?

By Ed Burkhardt


I was riding one of the innumerable hop-on, hop-off tour buses through the undeniably beautiful and charming city of Savannah, Georgia, in July when I saw a sign instructing me to "Call 911" if anyone asked me for money. Another stop, another sign. Hopped off for lunch, another sign. I then realized the Historic District was full of such signs, instructing me to alert the police if I was hit up for change by a beggar.

This got me thinking. I myself, being well familiar with many of the streets and their inhabitants in and near the Downtown district of our equally beauteous "Emerald City," have encountered many individuals who engage (and even specialize) in this same activity here, some of them whom I know (personal knowledge, believe me) are repeat "offenders." For some reason, though, Seattle proper is not crammed chock full of signs instructing me to alert the authorities if I get panhandled.

What is going on between Savannah and Seattle?

The answer is not that simple. The U.S. Supreme Court has said that "individual charitable solicitation" (also called begging or panhandling) is so intertwined with protected speech under the First Amendment that any attempt to control it has to be assessed as a restriction on speech.1 Yet, despite this pronouncement that begging is a form of First Amendment-protected speech, lawmakers nationwide have repeatedly and with great zeal sought to eradicate this perceived plague of panhandling with legal bans and curbs.

Probably the most ambitious of the recent efforts occurred in Michigan where that state's esteemed legislators, seemingly unimpressed by anything the Supreme Court might have said on the matter, decided to simply outlaw begging statewide.2 The U.S. District Court promptly shot down that misguided effort.3 The New York legislature also had previously tried to criminalize begging statewide, though it tabbed the activity as a violation of an anti-loitering law. That also was invalidated.4

The federal courts in Michigan and New York conducted a multi-pronged analysis when analyzing restrictions on constitutionally protected speech such as begging, as do all courts that properly address such issues. The courts begin by considering such factors as whether the speech takes place in a "public forum" and whether the curb or ban is "content-neutral."

For example, in Berger v. Seattle,5 the Ninth Circuit invalidated an ordinance that prohibited street performers from "actively solicit[ing]" donations in certain areas around the Seattle Center where they were allowed to perform. The ordinance allowed performers only to "passively" solicit donations by use of a written sign. The Ninth Circuit held the ordinance impermissibly distinguished between categories of speech based on content.

If a court answers "yes" to the public form and content-neutral questions, then it will assess whether the contested restriction is "narrowly tailored" to serve a significant government interest and leaves open ample alternative channels of communication.6 A law will be upheld and pass the "narrowly tailored" test if it advances a substantial government goal that would be achieved less effectively without the law, but without burdening substantially more speech than necessary.7 It can't restrict speech such that a substantial portion of the restriction doesn't advance the sought-after goal.8

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