Monday, October 15, 2007

Buddy, can you spare some free speech?


Storytellin' Dave
Originally uploaded by paynehollow
So, the city of Louisville, my hometown, has proposed an “aggressive” panhandling ordinance. Apparently there is an epidemic of panhandling aggressiveness of which I was unaware (even though I'm on our downtown streets every day).

This ordinance criminalizes the action of asking for money near banks, ATMs, schools, outdoor dining facilities, parking garages, bus stops and on private property. Also, near automobiles, streets, highways, parking lots, parks, playgrounds and/or port-a-potties! And never after dark (as defined by the Courier Journal’s weather page).

I kid you not.

Of course, what that means is that this proposal would make it criminal to ask for money anywhere downtown and in most of the outlying areas, since that list is pretty all-inclusive. I’m supposing that it would still be okay to panhandle from a canoe or other flotation device sitting out in the Ohio River – as long as there were no port-a-potties nearby.

But not after 8:18pm tonight (“after dark,” as defined by the law for this time of the year).

So call your homeless and mentally challenged pals up and let them know to meet at in the middle of Ohio any time after 8am and before 8pm and panhandle away. But, they’re only allowed one “panhandle” per person. Any more than that and it becomes “aggressive.”

I had no idea how serious this problem has become. And it must be serious, since we’re talking about restricting free speech rights of individuals, some who may well have served in Viet Nam to protect those rights (“Hey pal, help a homeless vet?”).

But how about this? Instead of taking the serious action of criminalizing free speech, what if we could find another way to deal with this “aggressive solicitation” problem which has become, according to the ordinance, “extremely disturbing and disruptive to residents and businesses” and has contributed to “enhanced fear, intimidation and disorder?”

Here’s my modest proposal: Suppose you’re walking along next to an ATM or Port-a-Potty when, suddenly – out of nowhere! – a suspected panhandler comes along. You avoid eye contact, looking at your watch or reading the signs on the Port-a-Potty, but it doesn’t work – they approach you after all and ask, “Excuse me, do you know what time it is?”

Run! Run for your…oh, wait, it was just a request for the time. Or was it? Are they trying to get you to give them your watch?? They repeat the question, thinking you haven’t heard. But there it is! A repeated request for assistance! Aggressive panhandling.

Quick! Call the cops…no, no, dang! You don’t have a quarter to make the phone call. I suppose you could ask someone – no! You’re still too close to the street and it would be a crime.

Okay, no problem. Just tell them the time and walk away.

“It’s time for you to get a job, buddy!”

But no sooner do you walk away when another one comes along. “Can you spare a quarter for a Viet Nam vet, pal?”

Listen closely, here’s what you need to do:

Say, “No.”

If you don’t wish to give him any money, just say “No.” Then walk away. Just like that, it’s over. And, on the outside chance he asks a second time, pleading with you, “Aw, come on, not even a dime?” Say, “No,” a second time.

Repeat as needed.

Call me crazy, but I think this just might work and certainly would be preferred over placing restrictions on our free speech.

After all, who knows when you just might want to borrow a quarter, yourself?

17 comments:

Michael Westmoreland-White said...

Hmm., this would sure make it hard to follow Jesus' command in the Sermon on the Mount to "Give to everyone who asks of you."

But, then, so many American Christians prefer to listen to Ayn Rand's philosophy of selfishness than to Jesus.

Eleutheros said...

Methinks, Dan, that you misunderstand the concept of 'freedom of speech'. You cannot interfere with the expression of ideas between a willing speaker and a willing audience.

It has been long held that, for example, that the right of freedom of religion also carries the implication of freedom from religion, if one so chooses.

Like that, our guarantee of freedom of speech carries with it the implication of our equal freedom from speech if we so desire.

You are adopting the telemarketers' twisted view of freedom of speech. When the 'no call' list was being proposed, the telemarketers cried foul saying it was an abridgment of their right of free speech. The courts opined otherwise.

You don't have the right to go shouting at my windows in the night under the guise that it is your free speech rights. The same way, the right to approach someone unsolicited and ask for money (or the time of day) is not guaranteed by the Bill of Rights.

For free speech to be the issue, it must be a willing speaker AND a willing listener.

Dan Trabue said...

Not misunderstanding free speech, at all. No one is forcing anyone to listen to a panhandler. You are free to not respond and walk on.

I'm saying that we ought not be in the business of penalizing people who ask questions in public places. Wanted or unwanted.

If you don't wish to be bothered, just walk on, say "No," say "Screw you!" or whatever.

For the record, I don't normally give money to panhandlers. I don't think that's the best way to help them.

And, if they want to create laws that deal with intimidation or actual threats (if such laws are not extant), then by all means, do so. But targeting our mentally ill and homeless friends for special scrutiny is a bad idea. Additionally, the way this law is written, you could - in theory - be arrested for approaching just about anyone in our downtown area.

Even if you were a supporter of the idea, this is a badly written law.

Alan said...

The panhandling/telemarketing analogy is flawed. The appeals court wrote, “We hold that the do-not-call registry is a valid commercial speech regulation because it directly advances the government’s important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech...” Additionally they wrote that the do-not-call list "targets speech that invades the privacy of the home, a personal sanctuary that enjoys a unique status in our constitutional jurisprudence." So then, the telemarketing situation was commercial and infringed on personal privacy. Neither is the case with panhandlers.

Yelling outside someone's window? Again, a poor analogy unless the person doing the panhandling is being abusive or is otherwise causing a public disturbance and/or trespassing.

Actually, the appropriate analogy would be people who stop you on the street asking you to sign political petitions, to fill out surveys, or to read the book of Mormon, etc.

Thinking about those analogies for a minute makes the issue pretty clear, I think.

Just when you thought your freedom of speech was in danger from the far right, it turns out that the NIMBYs are out to take it away too.

eyemkmootoo said...

It's been my experience that "aggressive" panhandling ordinances are a response to "aggressive" panhandling and "aggressive" may be in the eye of the beholder. "Just say no" has rarely worked for me and I'm a grown 200lb man. I can only imagine what the experience of a petite woman or elderly person might be. Perhaps you have a more well behaved panhandling community up that way.:) The solution some Florida cities have come up with is to (now sit down and take a deep breath) require panhandling permits and mark out boxes in areas designated as panhandling zones.

Eleutheros said...

Alan:"Actually, the appropriate analogy would be people who stop you on the street asking you to sign political petitions, to fill out surveys, or to read the book of Mormon,"

That can be prohibited under the constitution as well and that's why your objection to the telemarketing analogy does not obtain.

Scores of cases, many of them supreme court cases, have stated that laws cannot be passed based on the CONTENT of speech. That is, you cannot have a situation where you are prohibiting the asking for alms but under the same circumstances you can ask directions or the time of day.

The courts have said that it is NOT a violation of freedom of speech to require the solicitor to be at a fixed location. That is, any law which restricts areas where solicitation cannot occur are valid and laws that prohibit falling into step with a passer by or blocking their progress pass muster.

Almost very municipal anti-panhandling law that has been struck down on constitutional grounds has only had to be very slightly rewritten and it is deemed constitutional.

The underlying principle, as I pointed out, cannot be violated. You are not required to hear or listen to anyone's speech, opinion, solicitation, or whatnot against you will in the guise of 'freedom of speech'.

Alan said...

Interesting that you've taken "freedom of speech" and spun it as "freedom from hearing." ;) It's too bad that freedom of speech is a value we admire when it's convenient to do so.

Alas, what this law is really about isn't speech, you're right about that. It's about some NIMBYs getting all bent out of shape about the possibility of their almighty property values going down.

I think one would be hard pressed to find Biblical support for the idea of shutting up the poor.

Eleutheros said...

Alan:"Interesting that you've taken "freedom of speech" and spun it as "freedom from hearing." ;)"

Alan, that's like the aggressive evangelist saying he has the right to accost people and wave a Bible in their faces because of 'freedom of religion'. If you object, he might well remonstrate that you have taken 'freedom of religion' and spun it as 'freedom to go to be lost'.

Freedom of religion is a relationship between you (on the one hand) and your deity or beliefs (on the other hand). Freedom of religion says that a third party cannot inject itself between you and your beliefs, be it an individual or the state. If the case of freedom of religion, there cannot be a law prohibiting you from going to the church of your choice. But you can't stand on a table in a crowded restaurant and thump the Bible and begin preaching and claim immunity because of freedom of religion.

Freedom of speech, just like that, involves the relationship between a speaker and a listener (or listeners). As a third party, you cannot inject yourself into that relationship, not you nor the state.

Individuals and collections of individuals have the right to say they do not want to be party to your speaker/listener relationship. Just as it is appropriate to rail and froth from the pulpit if you like, it is not appropriate to do so where you are not welcome, such as in a quiet restaurant. It is appropriate to ask for alms where people have not collectively expressed the desire to not be part of your speaker/listener relationship. Where they have so expressed it collectively, you have no right intrude on them.

Free speech has everything to do with controlling content. The reason anti-panhandling laws get struck down is because they cross the line of trying to regulate what you can say rather then the your right to an audience. Once the content component is removed, all such laws have stood muster.

Michael Westmoreland-White said...

While I am not sure that such laws invalidate free speech, they seem overly harsh. And apparently such draconian laws have backing in very high places, including with Speaker Pelosi:
http://www.commondreams.org/archive/2007/10/17/4629/

Alan said...

"Alan, that's like the aggressive evangelist saying he has the right to accost people and wave a Bible in their faces because of 'freedom of religion'. If you object, he might well remonstrate that you have taken 'freedom of religion' and spun it as 'freedom to go to be lost'."

Funny, I'd have said he has exactly that right, as long as he isn't assaulting people.

Eleutheros said...

Alan:"Funny, I'd have said he has exactly that right, as long as he isn't assaulting people."

I'm wondering, Alan, if "right" here means legal and constitutional right or whether it's our own sense of morality.

Bible thumping in people's faces most certainly isn't a constitutional right. A small municipality here run by a board of "selectmen" was up to some skulduggery. A citizen who had the goods on them stood up at the board meeting and when the selectman began to sweat, under the guise of keeping order, ordered the police officer who was acting as bailiff to escort the man from the building.

The bailiff approached the man and put his hand on the man's elbow very obviously only to get his attention and direct him from the building. Calmly, the man asked, "Am I under arrest?" To which the bailiff had enough sense to reply in the negative. The man then said "Then take your hand off me or I will prefer assault charges against you." The bailiff withdrew immediately.

It takes very, very, very little to violate a person's personal freedom and sense of security. As it turns out, just taking someone by elbow is indeed actionable as assault, ESPECIALLY if asked to desist.

Just like that panhandlers and evangelists do not have the right to accost you, and doubly so if you tell them to desist. It takes very little to cross the line so that your actions are aggressive and threatening. You have the right to express yourself but you do not have the right to button-hole or captivate an audience as part of that right.

Dan Trabue said...

This would be my point, E. If taking someone's elbow is assault, then there is no reason to make this law if that's all you were concerned about. There are laws against harassment, against disturbing the peace, against assault.

Creating a law to make it illegal to ask for a quarter and to call it an effort to stop "aggressive" panhandling is unncessary.

Alan said...

Precisely Dan. Why make up new laws when old ones are already around?

I just passed 3 panhandlers on my way to Starbucks. Not one of them "accosted" me. Actually, not one of them even got up from the side walk where they were sitting. If they had "accosted" me, I could press charges based on assault. Why should we bother creating new laws to prosecute those 3 gentlemen who did nothing to me but ask for some spare change?

Oh right... because we in America now have the unalienable right not to be inconvenienced, or to have our property values go down.

Eleutheros said...

Dan:"Creating a law to make it illegal to ask for a quarter and to call it an effort to stop "aggressive" panhandling is unncessary."

Quite probably. But the posit of this thread was not that it was unnecessary, but that it was unconstitutional (just look at the subject line of the post). Passing those laws for whatever reason or motivation might well be unnecessary, but they aren't constitutional.

You've heard my bit, Dan, that before the EPA, every man Jack among us had standing to challenge any sort of pollution and environmental degradation. All the pollution laws for the past 40 years are "unnecessary". Stopping pollution could have been done another way, by each individual asserting their right and standing.

If we are objecting to the law because it is unnecessary, then let's be consistent and get rid of all other laws that are likewise unnecessary.

Then where's the place and function of the "policy" you advocate in other arenas? People could correct the overconsumption and resultant ills individually without laws and policies, just as someone who wants to go from the ATM to their car and does not want to give an account to every panhandler that that intrudes along the way COULD take them all to court.

Neither is likely, but choose one or the other for the sake of consistency, are policy and law desirable or shall we leave it all to individual action as you suggest we do with the subjects of the panhandling??

Dan Trabue said...

Then where's the place and function of the "policy" you advocate in other arenas?

The place and function is where my nose begins. Physical, actual harm of some sort.

The panhandler can ask his questions as long as he's not stopping me from going where I wish or threatening me (actually threatening, not threatening merely because he's mentally ill which I find uncomfortable).

The motorist can drive her car as long as it's not endangering me unduly or threatening my health (and therefore, we probably should revisit those laws).

Your neighbor can change his motor oil but he can't pour it in your well.

The factory next door can create widgets but they can't dump their toxic wastes into our common stream.

I think I'd advocate using personal wherewithal to deal with the merely annoying, but I have no problem with governmental laws to protect us from the dangerous/unhealthy.

How's that for a dividing line?

Dan Trabue said...

I'd say on speech issues, I'm pretty lenient and lean away from telling people what they can and can't say.

Short of libel and inciting a hatred that leads to violence.

Eleutheros said...

Dan:"I'd say on speech issues, I'm pretty lenient and lean away from telling people what they can and can't say. "

Shy away? But, Dan, that's the whole essence of the first amendment. You can't tell people what they can or can't say. But you can tell them where and when they can say it. 'Freedom of speech' protects the content of speech not the opportunity for speech. The same is true of freedom of press and freedom of assembly. No law can be made regulating the content or purpose although it is perfectly constitutional to regulate the time and place.

For example, it is perfectly constitutional to have an ordinance prohibiting putting fliers under the windshield wipers of every car in the Mart parking lot. That is not an abridgment of the freedom of the press. It is also constitutional to require a parade permit for a large demonstration, that is not an abridgment of the freedom of assembly. Not my opinion, that's what the courts have decided for more than two centuries now.

Municipalities have the prerogative to regulate all sorts of things. Panhandling comes under the freedom of speech (and not an act of commerce) when it is seen as drawing attention to the plight of the poor. Fine. But I might want to draw attention to the fact fast food restaurants are abusive in their practices by operating a hot dog cart on the corner. The municipality can require me to have a license, health inspection, or even prohibit selling food on the streets altogether if it sees fit. My remonstration that they'd be abridging my right of free speech would not stand.

Hawking on the street in front of you store is prohibited in many places, street musicians are not allowed, in one city near here you must paint your store front in the historic district in certain colors (no freedom of expression).

I know what the thing is at the core. The businesses in your area see the panhandlers as driving away their business, and the liberals like the panhandlers there because they like to have their message of the downtrodden poor forcibly up in the faces of the people they see as the 'enemy'.

But the fact is that local governments have wide latitude in regulating activities. The panhandling law my well be unnecessary, just as I could make an argument that laws interfering with selling hot dogs, prohibiting street performances, or requiring that privately owned businesses be painted a certain color are all unnecessary.

Alas, necessity isn't a test for constitutionality.