Wednesday, August 14, 2013

Sixth Circuit: "Begging" Protected by First Amendment

In its opinion today in Speet v. Schuette, the Sixth Circuit, affirming the district court, held that Michigan's so-called "anti-begging" statute is unconstitutional.  The Michigan statute, Mich. Comp. Laws § 750.167(1)(h), defines a "disorderly person," as a "person found begging in a public place."

480px-August_Heinrich_Mansfeld_Die_milde_GabeThe court notes that "Attorney General Schuette argues that the anti-begging statute does not reach any conduct or speech that the First Amendment protects."  The court rejected this contention and stated that "begging, by its very definition, encapsulates the solicitation for alms."  And while the court agreed that the United States Supreme has never squarely ruled that an individual soliciting for alms is engaged in expression,in an interesting twist of the usual analogizing, the Sixth Circuit noted that the Court  "has held—repeatedly—that the First Amendment protects charitable solicitation performed by organizations."  The court engages in extensive discussion of precedent as well as cases in other circuits including the Fourth Circuit in Clatterback which we discussed here. The Sixth Circuit found that there was indeed protected expression in "begging" sufficient to invoke the First Amendment.

It then turned to the question of whether the statute was "overbroad."  Although it recognized that "overbreadth" was "strong medicine," it determined it was warranted:

Instead of a few instances of alleged unconstitutional applications, we have hundreds. The Grand Rapids Police Department produced four hundred nine incident reports related to its enforcement of the anti-begging statute. Thirty-eight percent of the people that the police stopped were holding signs requesting help, containing messages like “Homeless and Hungry: Need Work,” “Homeless Please Help God Bless,” “Lost My Job Need Help,” and “Homeless and Hungry Vet.” The other sixty-two percent of the stops (two hundred fifty-five instances) involved people verbally soliciting charity. In forty- three percent of the cases, the police immediately arrested the people who were begging. In two hundred eleven cases, people convicted of begging were sentenced directly to jail time. The record in this case bolsters our “judicial prediction” that “the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”

It further determined that it could not "read the statute to limit its constitutional effect," : instead, the "statute simply bans an entire category of activity that the First Amendment protects."  While Michigan could regulate "begging," it may not simply prohibit it by its criminal laws.

Although relatively brief at 17 pages, this is a well-reasoned opinion in conformance with the weight of authority and First Amendment doctrine. 

RR
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