Panhandling?

Erin West, J., for the majority

In reviewing this case the Court is forced to establish to what extend panhandling or solicitation of funds is protected under the First Amendment. To undertake such an analysis, it is useful first to evaluate those categories of speech under which panhandling is not protected.

The Court previously held in Village of Schaumburg v. Citizens for Better Environment that “charitable appeals for funds, on the street or door to door, involve a variety of speech interests -- communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes -- that are within the protection of the First Amendment.” While one might say a person is being charitable in giving spare change to a street beggar, such solicitations do not fall under “charitable appeals for funds.” This assertion raises two important points: First, it is the advocacy of ideas that the Court was seeking to protect in Schaumburg. Since panhandling does not involve the solicitation of funds for a particular non-profit organization or political, economic, or social cause, this Court cannot grant it First Amendment protection under the category of charitable solicitation. Secondly, this court held in ISKCON that the solicitation and receipt of funds from charitable or religious groups may be regulated in order to prevent fraud. "The unsavory solicitor can commit fraud through concealment of his affiliation or through deliberate efforts to shortchange those who agree to purchase." We find that panhandling does not present such a threat, and therefore regulation cannot be justified by this case. Panhandlers clearly do not claim to represent anyone but themselves during their solicitation of funds.

Nor does panhandling fall under the limited protection afforded to commercial speech. In requesting funds from a pedestrian the solicitor does not seek to sell anything or engage the pedestrian in commerce. Value is placed on commercial speech because the public has a right to be well-informed about their purchases and commercial endeavors. “It is a matter of public interest that [private economic decisions], in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.” Virginia Pharmacy. In a commerce situation, the shopper deserves accurate information because an exchange takes place: the consumer gives the vendor money in return for a product or service. In a panhandling scenario this is not the case. The giver does not require any information because they receive nothing in return. Moreover, there is no need, as found in commercial speech, to protect the citizen from misinformation or fraud. Due to these distinctions, the Court cannot categorize panhandling with commercial speech.

Due to the fact that the solicitation of funds does not fall under charitable or commercial speech, the Court must evaluate if the Berkeley ordinance seeking to regulate panhandling can be found constitutional under the First Amendment. The Court contends it cannot for the following reasons:

Since streets have “immemorially, ... time out of mind” been considered public forums available for public expression, the city must prove that there is a compelling government interest involved in regulation. Hague, ISKON. This Court has previously ruled that the government has a substantial interest in regulating certain locations traditionally part of the public forum including courthouses, jailhouse grounds, and the sidewalks and streets of residential neighborhoods because they are dedicated to uses incompatible with an open forum. Justice Marshall proposes, "The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place of a particular time." Grayned v. Rockford (1972). Berkeley argues that panhandling within six feet of any building between the hours of 6 a.m. and midnight and any soliciting after dark is incompatible with the normal activity of a commercial district. Such speech deters consumers from frequenting the area and thereby prevents the local merchants from selling their goods, which ought to be the primary purpose of the location. Moreover, panhandling after dark creates an unsafe atmosphere which deters citizens from dining at restaurants in the area. We do not accept this reasoning. This Court has traditionally held that normal activity on public streets includes the dissemination of information, both verbal and written. Hence, the solicitation of money must be included in such activity . To argue that panhandling is incompatible with the activity of a commercial district is comparable to saying that parades cannot take place on the street because avenues are for transportation only. A commercial district is precisely the best location for panhandlers since large amounts of people with money frequent the area. A panhandler's objective is not achieved if he solicits money in an abandoned parking garage.

The City also argues that the government has a compelling interest in restricting aggressive soliciting (and it is unclear exactly what such conduct entails) because it is an annoyance and burden to the citizenry. However, simply saying “No” to a beggar is no more inconvenient than turning down a leaflet. As stated in Judge Kennedy’s dissent in ISKCON, “The First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government of it its obligation to tolerate speech.”

This is not to say that the state may not regulate speech conducted on a public street. Constitutional provisions must adhere to reasonable time, place and manner criteria as previously established by the Court. Ward v. RAR. The state does not prove that the ordinance is in accordance with said criteria. A city may, within the bounds of the law, prohibit a demonstration from taking place at 2:00 in the morning in order to prevent the unnecessary disturbance of its citizens. It could also arrest a person blocking the sidewalk to anyone who refuses to give money. However, Berkeley's ordinance prohibiting any solicitation of funds after dark is an unreasonable time restriction which aims to regulate content. “Solicitation is a form of protected speech [and] . . . solicitation regulation prohibit[ing] all speech which requests[s] the contribution of funds . . . is a direct, content-based restriction of speech in clear violation of the First Amendment.” ISKCON. The Berkeley ordinance is unconstitutional because it confines speech to daylight hours solely based on the message conveyed. The Court disagrees with the City's assertion that the ordinance is objective because it does not discriminate between a panhandler and a Greenpeace representative soliciting donations. The City attempts to regulate speech simply because it is soliciting -- this is precisely the content it seeks to deter.

The state contends that there is no value in panhandling, as opposed to charitable solicitation or commercial speech, and therefore regulation should be allowed. While the frequent solicitation of funds can be a nuisance to citizens, the Court holds that the First Amendment protects a man’s right to stand outside a restaurant and ask a pedestrian for financial assistance. In asking “Can you spare some change?” the defendant expressed his most fundamental needs and desires: to obtain food and shelter. The Court holds that such speech has clear emotive value, and therefore is deserving of First Amendment protection. "Much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well...we cannot sanction the view that the Constitution...has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated." Cohen. The Court asserts that a panhandler's plea for funds may have implications beyond simply wanting money. Panhandlers make a statement about homelessness and poverty -- a statement that most would rather not hear.

The UC Berkeley students felt uncomfortable having the defendant ask them for help. But speech that makes one uncomfortable is often that which needs the most protection. The majority of people in this country are uncomfortable with the burning of the flag, yet such expression is given protection under the Constitution. As Justice Brennan eloquently points out, "A bedrock principle underlying the First Amendment...is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson. This Court cannot justify abridging one's freedom of speech simply because what one has to say is bothersome.

The ordinance also criminalizes “begging that coerces, threatens, hounds, or intimidates.” The arresting officer found that the defendant’s behavior of following the students down the street while asking them for money constituted coercive, threatening and intimidating behavior. This contention poses several problems. Primarily, the criteria used in criminalizing the solicitation of money is too vague and therefore unenforceable. In this case, following the students down the street, though the defendant did not threaten physical harm or pose any immediate danger, was threatening and intimidating. Such an ordinance cannot be applied evenhandedly. How is one to know what is considered threatening? What is intimidating or coercive to a 70 year-old woman might be very different than what is intimidating or coercive to a world champion boxer. Secondly, if it is the disturbance of its citizenry that the city wishes to avoid, laws already exist to provide such protection. For instance, the defendant could have been arrested for disturbing the peace had his behavior been too loud or disruptive.

The Court has already argued that the desired effect of the Berkeley ordinance does not create a substantial government interest in regulating the speech. However, thus far we have not fully discussed the other options which are available to the city to achieve this goal. In the true spirit of the First Amendment, the city could combat undesirable speech with more speech, as advocated in Texas v. Johnson: "We can imagine no more appropriate response to burning a flag than waiving one's own, no better way to counter a flag-burners message than by saluting the flag that burns." Many cities, including Evanston, Illinois, have enacted programs which hire people to stand next to aggressive beggars and discourage pedestrians from giving money. The city might also seek to inform the public as to the disadvantages of contributing to panhandlers through an aggressive advertising campaign or strategically placed placards. The city clearly has other avenues available to deter begging on their streets and therefore cannot justify infringing on First Amendment rights.

The Berkeley ordinance does not withstand the close scrutiny of this Court and is therefore found unconstitutional. We held in Schneider that “so long as legislation . . . does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or distribution of literature it may lawfully regulate the conduct of those using the streets.” The ordinance involved in this case directly abridges one’s ability “to impart information through speech” in a location traditionally available for public expression and hence, must be struck down.

Decision: Reversed

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Panhandling?

Erin West, J., for the majority

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