Wednesday, September 26, 2012

Holding a sign asking for money protected as freedom of speech. Grand Rapids, Michigan...USA

    A recent ruling struck down the Michigan ordinance against Panhandling. The ACLU went to court for a local Homeless Air Force Veteran. The defendant from Grand Rapids is a recognized face on off ramps from the 131 expressway with a sign requesting cash. Them Michigan Panhandling law did not pass constitutional muster because the court ruled that (Even though inconvenient and a bad image for a thriving community) someone asking for financial help is considered freedom of speech. A link to the entire document for this ruling is posted here.
     http://www.emptywheel.net/wp-content/uploads/2012/08/120827-Speet.pdf


    This is a section of the ruling summary for quick browsing>

    The Defendant, Mr. Speet is an adult resident of Grand Rapids, Michigan and has been homeless for approximately two years. (Verified Compl., docket # 1, at ¶ 21.) He receives food stamps, and he gleans cash by collecting and redeeming bottles, cans, and scrap metal. (Id. at ¶ 22.) He has no other sources of income. He occasionally seeks assistance from others by holding up a sign asking for work or help. 
    (Id. at ¶¶ 22-23.) When seeking work or help, Mr. Speet holds up a sign but does not approach passersby directly. (Id. at ¶ 24.) Mr. Speet sees himself as informing people about his situation and his need for help by holding up his sign. (Id. at ¶ 25.) Some of his signs have read, for example, "Cold and Hungry, God Bless," and "Need Job, God Bless." (Id. at ¶ ¶ 30, 40.) He has obtained odd jobs, such as mowing lawns, and painting a garage, from individuals seeing his sign.
    (Id. at ¶ 27.) Mr. Speet was arrested and prosecuted in Grand Rapids twice for begging in 2011. (Id. at ¶ 29.) On one of those occasions, he was jailed. 
    (Id. at ¶ 43.) He has also been arrested and prosecuted for begging elsewhere in Michigan. (Id. at ¶ 44.)
    Mr. Sims, an adult resident of Grand Rapids, is an Air Force veteran. (Id. at ¶ 52.) He has a disability and receives approximately $260 per month in state disability insurance. (Id.) He also receives food stamps. (Id.) Mr. Sims attends Grand Rapids Community College, in pursuit of a career in electronics. 
    (Id. at ¶ 53.) He occasionally begs for money, typically by asking individuals if they can spare change for a veteran, and moving on if the individual declines. 
    (Id. at ¶¶ 54-55.) Mr. Sims was prosecuted for begging several times in Grand Rapids in 2005. (Id. at 56.) On July
    4, 2011, Mr. Sims was arrested for begging in Grand Rapids after he asked a person on the street 2
    Case 1:11-cv-00972-RJJ Doc #25 Filed 08/24/12 Page 2 of 16 Page ID#350 whether that person could spare some change. (Id. at ¶¶ 59-60.) He ultimately pled guilty to a panhandling charge and was fined $100.
    The statute under which Mr. Speet and Mr. Sims were arrested, prosecuted, and punished provides:
    (1) A person is a disorderly person if the person is any of the following: ....
    (h) a person found begging in a public place.
    MICH. COMP. L. § 750.167(1)(h). A person convicted under section 750.167(1)(h) is "guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both." MICH. COMP. L. § 750.168(1).
    The State of Michigan and the City of Grand Rapids (collectively, the "government") assert that Michigan's statutory ban on public begging is constitutional on its face, and they emphasize that the statute serves several desirable purposes. According to the government, the ban helps businesses, because the presence of people begging in or near business establishments may deter others from patronizing those businesses. The government also emphasizes that the ban on begging helps prevent fraud, because beggars may not use the contributions for the purposes donors intend. Indeed, the government observes, some beggars may use such contributions for alcohol and illegal drugs.
    The government also points out that begging can be intimidating or annoying to others and that the ban helps protect the public from harassment.
    Mr. Speet and Mr. Sims contend that the statute is facially unconstitutional under the First Amendment, "because it is a content-based restriction on protected speech in a public forum that is not narrowly tailored to serve a compelling state interest, and because it prohibits a substantial 3 Case 1:11-cv-00972-RJJ Doc #25 Filed 08/24/12 Page 3 of 16 Page ID#351 amount of protected speech," and also facially unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, "because it prohibits individuals who wish to beg from engaging in protected First Amendment activity in public places, while allowing other persons to engage in First Amendment Activity in public places." (Id. at ¶¶ 123, 129.)

    Legal Analysis
    The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." Through the Fourteenth Amendment, this prohibition applies to state and local governments as well. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); Parks v. City of Columbus, 395 F.3d 643, 647 (6th Cir. 2005). The Fourteenth Amendment also forbids state and local governments from denying to any person within their jurisdictions the equal protection of the laws. "Only a statute that is substantially overbroad may be invalidated on its face." City of Houston v. Hill, 482 U.S. 451, 458 (1987) (citations omitted). Whether a statute is substantially overbroad depends primarily upon whether it reaches a substantial amount of protected speech or conduct. Id. (citing Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). That it
    is possible to conceive an impermissible application, without more, does not render a statute facially overbroad. However, statutes "that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they have legitimate application." 
    Id. Criminal statutes "must be scrutinized with particular care." Id. at 459.
    I. First Amendment
    To resolve Plaintiffs' facial challenge to the statute under the First Amendment, the Court must first determine whether begging includes speech or expressive conduct protected under the First Amendment. Bays v. City of Fairborn, 668 F.3d 814, 820 (6th Cir. 2012). If begging is protected 4 Case 1:11-cv-00972-RJJ Doc #25 Filed 08/24/12 Page 4 of 16 Page ID#352 speech or expressive conduct, First Amendment protections are triggered, and the Court must determine whether the government has justified its ban on begging. Miller v. City of Cincinnati, 622
    F.3d 524, 533 (6th Cir. 2010). In making that determination, the Court considers the scope of the restriction, examining particularly whether the restriction is content-specific and to what forums the restriction applies. Id. In general, the more a content-based speech restriction applies to traditional public forums, as opposed to more limited venues, the stricter the scrutiny, and the less likely the restriction will pass muster.
    Id. A. Begging Includes Protected Speech and Expressive Conduct.
    Begging plainly conveys a message: it communicates, whether verbally or non-verbally, a request for financial or material assistance. A beggar's message is analogous to other charitable solicitation: in both situations, the speaker is soliciting financial assistance, the beggar for him or herself, and the charitable fundraiser for a third party. Courts have held repeatedly that charitable solicitations are a form of protected speech. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633 (1980) (citing Cantwell v. Connecticut, 310 U.S. 296 (1940);
    Thomas v. Collins, 323 U.S. 516 (1945); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976); Bates v.
    State Bar of Arizona, 433 U.S. 350 (1977). It is well-established that "[c]haritable 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." 
    Id. The same rationale logically applies to begging, which involves similar speech interests. As the Second Circuit observes, [w]hile . . . begging does not always involve the transmission of a particularized social or political message . . . it usually involves some communication of that nature.
    Begging frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation. Even without particularized speech,
    5 Case 1:11-cv-00972-RJJ Doc #25 Filed 08/24/12 Page 5 of 16 Page ID#353
    however, the presence of . . . [a] person holding out his or her hand or a cup to receive a donation itself conveys a message of need for support and assistance. We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not a significant one for First Amendment purposes.
    Loper v. New York City Police Department, 999 F.2d 699, 704 (2d Cir. 1993). See also Smith v. City of Ft. Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999) ("[l]ike other charitable solicitation, begging is speech entitled to First Amendment protection."). For First Amendment purposes, begging and charitable solicitations are both entitled to protection.
    Begging may, of course, take the form of expressive conduct rather than verbal speech. When a beggar wordlessly extends a container for donations, for example, the conduct expresses the message of indigence and request for assistance. The First Amendment protects expressive conduct as well as speech. Though the "government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word . . . [i]t may not proscribe particular conduct because it has expressive elements." Texas v. Johnson, 491 U.S. 397, 407 (1989). "The First Amendment generally prevents government from proscribing speech . . . or even expressive
    conduct . . . because of disapproval of the ideas expressed." R.A.V. v. City of St. Paul, 505 U.S. 377,
    382 (1992) (citations omitted). Regardless of whether begging is characterized as speech, expressive conduct, or a combination of the two, it is entitled to protection under the First Amendment.
    The government points out that begging can include conduct elements, such as fraudulent statements; confrontational interaction; trespassing on private property; or other disagreeable
    behavior that has the potential to interfere with businesses serving the public. This is, of course, true of most speech, including both begging and other charitable solicitation. Here, the Michigan statute
    6v sweeps the speech, expression, and conduct elements into a single category of "begging." Because speech and expression are in the mix, the protections of the First Amendment apply.

    B. The Government's Asserted Basis for the Ban of Begging Does not Pass Constitutional Muster.