ABSTRACT
FACTS: A class action lawsuit was brought by homeless people who were begging in public. A New York law provides that “A person is guilty of loitering when he…loiters, remains or wanders about in a public place for the purpose of begging.” The constitutionality of this law was questioned by the plaintiffs on the basis of the First Amendment guarantee of freedom of expression and association. ISSUE: Is a statute that criminalizes all forms of begging in public constitutional? DECISION: No. Regulations regarding free speech must be “neutral, support substantial governmental interests, and not completely ban the speech at issue” (p. 1039). REASONING: Two standards are used by the courts in analyzing statutes and regulations pertaining to the freedom of expression. The U.S. Supreme Court, in United States v. O’Brien (88 S. Ct. 1673 [1968]), decided that
a government regulation is sufficiently justified when: (1) it is within the constitutional power of the Government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest, (p. 1679)
Merging with this standard is a standard used to assess time, place, and restrictions on “pure speech.” Such restrictions are valid
provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. (International Society for Krishna Consciousness, 112 S. Ct. 2711, 2720 [1992])
Applying these standards, the court determined that because the ban on begging was allencompassing, no matter how aggressive or unobtrusive, the statute was unconstitutional. IMPLICATIONS: This case allows homeless and poor people to bring attention to their impoverished state. It is “a critical message that the beggar has a genuine and legitimate interest in presenting to the public at large” (p. 1042). Balanced against this interest is the public’s desire for personal privacy, safety, and the avoidance of what may be perceived
to be offensive behavior (see Johnson & Cnaan, 1995). The criminalization of begging is hardly a recent phenomenon (Guest, 1989; Trattner,
1994). English Poor Laws were enacted to curb groups of homeless people from roaming from one community to another and menacing the general population (see Papachristou v. City of Jacksonville, 405 U.S. 156, n. 4 [1972]). It is the range of begging approaches that is difficult to categorize. These include verbal or nonverbal; unobtrusive or aggressive; polite or intimidating; nonphysical to quasi-assaultive. A beggar has a right to communicate in any manner in which he or she chooses, so long as it is not unduly intrusive. Many lawsuits regarding the finer points of this issue have been filed (e.g., Young v. New York City Transit Authority, 903 F.2d 146, cert, denied, 498 U.S. 984 [1990]), but the Supreme Court has yet to hear a case that specifically delineates the impact of the First Amendment on the right to beg as distinguished from the right to solicit for other charitable purposes.
