Just in time to save the hordes of recently-graduated and likely-unemployed law graduates, the Sixth Circuit last week joined the Second, Fourth, Eleventh, and Seventh Circuits in holding that begging is a form of solicitation protected by the First Amendment.
The plaintiffs in this case, James Speet and Ernest Sims, were both arrested and prosecuted for begging in Grand Rapids, Michigan. Speet was actually arrested twice, in January and June 2011. The first arrest resulted in a $198 fine, which due to nonpayment, became four days in jail. The second charge was dismissed once Speet received pro bono counsel. Sims was not initially arrested due to the officer's sympathy for a veteran on the Fourth of July, but he later was issued a $100 fine.
Both, with the help of the American Civil Liberties Union, mounted a facial challenge to the anti-begging statute, which has been in effect since at least 1929.
A Bit of Supreme Court Precedent
Though the Supreme Court has never addressed the issue of individual solicitation and free speech, it has addressed the right of organizations to solicit funds and distribute information, finding that right to be protected by the First Amendment's free speech guarantees in Village of Schaumburg v. Citizens for a Better Environment, and upholding the Seventh Circuit's affirmation of the district court's "judgment of facial invalidity" of the municipal ordinance at issue.
Since that 1980 holding, the Supreme Court has continually held that "solicitation is a recognized form of speech protected by the First Amendment," including in Riley and Kokinda, though never specifically on an individual's behalf.
Circuit Court Chorus
While individual panhandlers have never reached the Supreme Court, they have reached multiple Circuit Courts of Appeal. In 2000, the Seventh Circuit, in an as-applied challenge to an anti-panhandling statute, cited Schaumburg in stating "[l]ike the organized charities, [the panhandlers'] messages cannot always be easily separated from their need for money," and that "[w]hile some communities might wish for all solicitors, beggars and advocates of various causes be vanished from the streets, the First Amendment guarantees their right to be there, deliver their pitch and ask for support."
Other Circuits, in facial challenges, have issued similar holding, including a Fourth Circuit decision in Clatterbuck v. City of Charlottesville earlier this year.
Facial challenges require a showing "from the text of the statute and from actual fact that a substantial number of instances exist in which the law cannot be applied constitutionally." The language of the statute is, on its face, quite broad. It provides that "[a] person is a disorderly person if the person is any of the following: ... (h) A person found begging in a public place."
As for the facts, the Grand Rapids Police produced 409 incident reports related to begging. Thirty-eight percent were holding signs asking for help. Sixty-two percent involved verbal solicitation. Forty-three percent of the incidents resulted in immediate arrest. Jail time was imposed in 211 cases.
Based on the statue, and its frequent application, a facial challenge, and defeat of the statute, was appropriate here.