Does the First Amendment Protect Begging?

On August 14th, the U.S Court of Appeals for the Sixth Circuit invalidated Michigan’s criminal anti-begging statute, in part on the simple ground that begging is protected by the First Amendment.  The long-lived statute, dating from at least 1929, states that one is a “disorderly person” if he or she is “found begging in a public place.” Violations of the statute trigger a misdemeanor offense, punishable by imprisonment for up to 90 days, a $500 fine, or both.  The Michigan law has, however, now sparked a strong legal challenge, thanks to the ACLU.

The ACLU’s Overbreadth Challenge: A Few Relevant Facts And Doctrines

Challenging the anti-begging statute are a number of entities related to the American Civil Liberties Union (ACLU), which mounted a First-Amendment-related facial challenge against the law.

A facial challenge is a special kind of legal attack that addresses a law “on its face,” that is, in every instance in which it could possibly be applied. Thus, typically, in a facial challenge, the plaintiff must show that no set of circumstances exists under which the statute, if applied, would be constitutionally valid.

But there is an exception to this approach, which occurs in the First Amendment context.  There, the facial challenge at issue focuses on speech, and the necessary standard for the facial challenge to prevail is different: It is enough, in such a challenge—which is called an “overbreadth” challenge in this context—for the plaintiff to show, instead, simply that a substantial number of instances exist in which the law cannot constitutionally be applied.  That is because the special First Amendment context, under the law, has been held to justify a lower showing than that of a garden-variety overbreadth challenge.

And, finally, the plaintiffs also brought an as-applied challenge—challenging the statute specifically as it pertained to plaintiffs Speet and Sims in particular.

Some Facts About the Plaintiffs and Their Case

Notably, far from being a relic, the anti-begging statute is frequently enforced: According to the court, there were 409 instances of enforcement on the part of the Grand Rapids, Michigan Police Department alone, over the period from 2008 to 2011.  Two of the people against whom the police enforced the statute were the plaintiffs in the ACLU’s case:  James Speet and Ernest Sims, both of whom were homeless at the relevant time.

The Facts of Speet’s and Sims’s Cases

Speet held up signs that read “Cold and Hungry, God Bless,” and, at a later date,”Need Job, God Bless”. Unable to pay his fine for begging when the law was enforced as to him, Speet served four days in jail for what was his first offense. For his second offense, Speet was also arrested, but, this time, he was released with the help of pro bono counsel, and the begging charge against him was dismissed.

As for Sims, who is a veteran, he was charged with a misdemeanor for asking a person on the street the time-hallowed question, “Can you spare a little change?” As a result, Sims, too, was arrested for begging.  While representing himself, Sims pled guilty and was sentenced to pay a $100 fine.

The Legal Issues, and Why the ACLU Prevailed on Speet’s and Sims’s Behalf

The ACLU prevailed on its overbreadth challenge in this case. The Sixth Circuit eloquently noted, in its opinion, that “begging, by its very definition, encapsulates the solicitation for alms.” And the court expressed concern, as well, that the statute was a criminal one, and thus deserving special scrutiny. The court also noted that the U.S. Supreme Court has made it quite clear that the First Amendment covers organizations’ soliciting alms, thus raising the question of why individuals would not have the same First Amendment right to also solicit alms. Moreover, the Sixth Circuit also cited a very similar precedent from a sister federal Circuit, the Seventh, that cut the same way as the Sixth Circuit’s decision, as well as more supporting Circuit precedent.

In my view, this was a very easy case with the Sixth Circuit clearly making the right call.  It involved only speech and no conduct on the part of the speakers, and the speech at issue did not fall into any of the kinds of speech that can be regulated, such as obscenity and defamation, for example.  But another, much more serious problem relating to begging is much harder, as I will explain.

A More Difficult Legal Question: Aggressive Begging

In my view, the questions raised by Speet’s and Sims’s conduct here are easy ones.  Speet simply asked for money while holding signs indicating his belief in God and his hunger; Sims, in turn, simply asked someone on the street for change when a police officer happened to be nearby. They were clearly exercising their First Amendment rights.

(As an aside, the fines that the two men had to pay, or else face serving jail time, seem exorbitant given their apparent poverty in light of the fact that they were homeless and soliciting even small amounts, but, of course, that point was not part of this case. Still, there may be an argument to adjust such fines for those who are penniless or nearly so.)

The Difficulties of Regulating Aggressive Begging

The difficult situation, I think, is that of regulating aggressive begging—which can be very far afield from the polite and/or passive conduct that Speet and Sims engaged in.

The aggressive-begging scenario raises its own First Amendment questions, such as, Can using words alone be deemed to be aggressive begging, and not just begging per se?  And if using words alone can indeed count as aggressive begging, what are the relevant factors that make them so: Their volume? The use of obscenities directed at the target of the begging if money is not given? (I’m omitting the possibility of the use of threats in my analysis here, as threats are crimes pretty much everywhere.) And what about physical gestures from the person who is begging?  Should grabbing a person’s arm in desperation while begging be a misdemeanor that is enforceable for a homeless person, when a similar grab would not be punished were it anyone else?

In sum, while the Sixth Circuit clearly did the right thing in the begging case that came before it, more complicated begging cases, and even aggressive begging cases may appear on the horizon, raising much more difficult facts that this one did.