(Photo by Jack Newton)
Wednesday, the United States Sixth Circuit Court of Appeals overturned Michigan’s 85 year ban on panhandling, ruling it an unconstitutional infringement on free speech. The three-judge panel unanimously upheld a lower court’s decision that the Grand Rapids police overstepped its authority in arresting two homeless men that were asking for change.
The case — Speet, et. al. v. Schuette — centers around the arrest in January 2011 of James Speet and Ernest Sims, two homeless Grand Rapids men. Speet was arrested for holding a sign that read, “Cold and Hungry, God Bless.” After pleading guilty, Speet spent four days in jail due to the fact he couldn’t afford the $198 fine.
Speet was arrested five months later for a sign that said, “Need Job. God Bless.” The prosecution dismissed the charge after Speet was able to secure counsel, but arrested him again July 4, 2011 for asking for bus fare.
“This appeal involves a facial challenge to the constitutionality, under the First and Fourteenth Amendments to the United States Constitution, of a Michigan statute that criminalizes begging,” ruled Judge Martin Boyce, Jr., the only Democratic-appointed judge on the panel. “This appeal poses two issues. The first issue is whether begging is a form of solicitation that the First Amendment protects. We hold that it is. The second issue is whether, as the district court concluded, the statute violates — on its face — the First Amendment. We agree with the district court that it does. Michigan’s anti-begging statute cannot withstand facial attack because it prohibits a substantial amount of solicitation, an activity that the First Amendment protects, but allows other solicitation based on content.”
A facial challenge is a legal challenge alleging that all applications of a law are unconstitutional, and therefore the law itself deserves to be nullified. A law that has been successfully facially challenged is facially invalid, which is the equivalent of being struck down.
“Good begging” vs. “bad begging”
Michigan Attorney General Bill Schuette argued that not all panhandlers are homeless or needy and that the law is needed to prevent fraud. “The record contains an affidavit of an executive director of an agency that works with the homeless as saying that ‘the great majority of people panhandling for money are using the money for alcohol and drugs.’ Furthermore, panhandlers who display signs saying that they are homeless often are not. Rather, they use the signs ‘to elicit sympathy and money, often to feed a drug or alcohol problem.’
“Michigan’s interest in preventing fraud can be better served by a statute that, instead of directly prohibiting begging, is more narrowly tailored to the specific conduct, such as fraud, that Michigan seeks to prohibit. Indeed, ‘[b]ecause First Amendment freedoms need breathing space to survive,’ a state ‘may regulate in the area only with narrow specificity,’” the opinion continued.
Schuette has not ruled out an appeal to the U.S. Supreme Court.
Speet is a veteran who must rely on $260 per month in disability assistance and food stamps to survive. When this is not enough, he is forced to seek help on the streets. Speet has called foul to the seeming double standard involved in solicitation — that the homeless and the sincerely desperate are discouraged from asking for help, while corporations, charities and politicians are given a free pass.
“I see people holding up signs throughout the city advertising restaurants or protesting and they didn’t get arrested or ticketed,” said Speet. “I don’t understand why my sign was any different just because I’m homeless and looking for a job.”
Grand Rapids has enforced this law 399 times between January 1, 2008 and May 24, 2011.
The Criminal Justice Legal Foundation, a conservative legal think tank, argues that panhandling laws are needed to break a culture of public disruptions. “No single act of panhandling, loitering, or public drunkenness is especially worrisome, but a series of such acts carried on simultaneously by many people is felt by most citizens to be deeply threatening,” read the group’s A Guide to Regulating Panhandling. “Yet the law often treats this problem as if it were a set of isolated, individual behaviors no one of which is harmful, and therefore no one of which deserves punishment. The law takes no official notice of the cumulative effects of collective behaviors of this sort.
“The results can be seen in many urban areas. There are neighborhoods that have become inhospitable and even menacing, destructive of any prospect of a decent and civilized street life, because of the presence of many panhandlers and vagrants who boisterously or abusively ply their trade. Citizens are rightly upset by a state of affairs that makes them feel that they are prisoners in their own homes, offices, or cars, while dangerous people are free to use the streets at will.”
Anti-solicitation laws
This perception that socially-unacceptable solicitation undermines a society and that there is a difference from “good solicitation” and “bad solicitation” have been tested repeatedly. In May, the Mexican American Legal Defense and Educational Fund (MALDEF) sued League City, Tx. for the city’s anti-solicitation laws banning day laborers from seeking work in public areas and the state of Texas for its laws banning solicitation for employment.
“This ruling sends a clear message to League City that the city cannot single out day laborers and violate their free speech,” said Marisa Bono, lead counsel in the case for MALDEF. “Day laborers have the same right to seek work as anyone else. Hopefully, League City will choose to comply with the Court’s order and the U.S. Constitution instead of continuing to waste taxpayer’s money with an appeal.”
In 2008, MALDEF won a similar suit against Cave Creek, Ariz. that prevented day laborers from seeking employment in public, and in May of this year, the ACLU has filed suit against the city of Worcester, Mass. in protest of two newly-passed anti-panhandling laws which banned activities such as holding a sign for help a half-hour before sunset, performing music with a donation container visible, soliciting from a traffic island or soliciting within 20 feet of the entrance of a bus stop, theater, ATM machine or any other “place of public assembly.”
“When these laws were being considered, the City Solicitor suggested police would ignore violations by politicians and focus enforcement on those begging,” said Chris Robarge, a Worcester-based organizer with the ACLU of Massachusetts. “And since the laws were enacted, the police have ignored traffic median protesters who were acting in violation of the law, yet they have arrested homeless people who did the same thing.”
For any law, a fair and even application to all is required. Applying a law for some while ignoring application to others turns that law into an oppressive device. In light of recent reporting from the National Law Center on Homelessness and Poverty that there is a seven percent increase in prohibitions on panhandling and begging in the 188 cities it examined between 2009 and 2011, a call for restraint and fair enforcement of the law is called for. It’s neither ethical nor moral to use a law to push aside unpleasant realities.
“Our sense is that cities are responding to the increasing number of chronically or visibly homeless people due to the economic crisis,” said Heather Maria Johnson, a civil rights lawyer for the National Law Center on Homelessness and Poverty. “Rather than addressing the issue of homelessness, they are adapting measures that move homeless people out of downtowns, tourist areas or even out of a city.”
“This is my only source of income,” said Stevie Ray Evans, a Colorado Springs, Utah man who has been raising awareness to unfair panhandling laws by challenging citations, to the New York Times. His sign reads “Starving Please Help!” “I do it for survival purposes. I feel as though a lot of other individuals depend on it, too.”
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