Panhandling in New York.

Photographer: Spencer Platt/Getty Images

Brother, Spare Me a Dime. Or Else.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Laws that ban street begging often are challenged as a violation of First Amendment free speech rights. Appellate courts are divided on the question, and the Supreme Court has never answered it definitively.

But in the last year, courts across the country have begun striking down laws against panhandling on the ground that they prohibit certain speech on the basis of its content. The reason is a major Supreme Court decision from last year that barred an Arizona town from using content to distinguish between different types of temporary signs erected on public property.

As a matter of morality, I think it’s usually a mistake for cities to suppress begging, which serves as a reminder to us that our society hasn’t solved some basic, serious social problems. But I don’t think the high court case, Reed v. Gilbert, necessarily has the consequences that the lower courts have been attributing to it.

The government is allowed to prohibit a course of conduct that happens to involve speech. And there’s no clear constitutional reason why panhandling should be uniquely protected while harassment and fraud and blackmail are not.

Let me start with the law the way it existed before 2015. The basic idea of the First Amendment was understood to be that the government couldn’t prohibit speech based on disapproval of its message. It could, however, prohibit behavior -- a course of conduct -- that might be associated with certain messages.

Thus, for example, Justice David Souter, who in his “retirement” still sits on cases in the U.S. Court of Appeals for the First Circuit, wrote an opinion for that court in 2014 upholding the anti-panhandling ordinance of Worcester, Massachusetts. The Worcester law bans “aggressive” panhandling.

Souter’s careful opinion acknowledged that “panhandling and solicitation of immediate donations convey messages of need, and waving placards at traffic islands may often be political expression.” But he explained that this wasn’t the end of the matter.

So long as the government’s purpose was to prohibit the aggressive behavior, not to disfavor the political message that panhandling carries, the law was permissible. “Even a statute that restricts only some expressive messages and not others,” the former Justice wrote, “may be considered content-neutral when the distinctions it draws are justified by a legitimate, non-censorial motive.”

Souter’s position makes a lot of sense -- because it explains why the government can, for example, prohibit harassment, including harassment that takes place on a public street. The government’s aim is to prohibit a behavior or an action, namely harassing someone. The government isn’t aiming to suppress speech -- even though in some sense, the government is targeting speech on the basis of its harassing content and therefore saying it doesn’t like it.

Enter Justice Clarence Thomas, free-speech absolutist. In last year’s Reed case, he wrote for the majority of the court that “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” That sounds plausible, and compatible with existing law.

But Thomas went on to say that it didn’t matter whether the government was defining speech by its subject matter or by its “function or purpose.”  Either way, Thomas wrote, a restriction based on content was subject to the highest form of scrutiny and would therefore ordinarily be struck down.

Lower courts have been reading this statement to mean that a city can’t prohibit panhandling because that would mean prohibiting speech on the basis of its content. Thus, the U.S. Court of Appeals for the Seventh Circuit, which had previously upheld the anti-panhandling law of Springfield, Illinois, reversed itself after the Supreme Court’s Reed case and struck down the ordinance.

Judge Frank Easterbrook -- a Reagan appointee who is the author of some important free-speech decisions -- wrote that it no longer mattered whether the government intended to suppress a certain message. “The majority opinion in Reed,” he said, “effectively abolishes any distinction between content regulation and subject-matter regulation.”

Easterbrook also noted that the Supreme Court vacated Souter’s Worcester opinion and sent it back to the First Circuit for reconsideration after its Reed decision.

Could Easterbrook be right that the Reed case effectively prohibits any ordinance that targets any speech at all based on its content? If he is, then the consequences would seem to be very strange and extreme. Consider laws that make harassment, fraud and blackmail -- all activities that can be performed entirely via speech -- illegal. Are those laws now constitutionally suspect?

If so, the government would in every instance have to prove that it had a compelling interest in prohibiting the behavior, and that it had narrowly tailored its law by adopting the least restrictive means possible.

In the case of verbal harassment, that might be difficult, especially since most local harassment ordinances are drawn quite broadly.

In the case of fraud and blackmail, it might be easier to prove a compelling interest. But how many such laws are very narrowly tailored? There are many instances of criminal statutes that could be drawn more narrowly than they currently are.

The other possibility is that the Reed decision wasn’t intended to stop the government from outlawing a course of conduct that is put into action through words. The facts in the Reed case had nothing to do with conduct. The sign ordinance that the court struck down simply treated different temporary signs differently based on what they said.

If that’s right, then a law that bans all panhandling could be perfectly constitutional, because what’s being banned is the conduct of begging, not the content of the speech. Laws against harassment, fraud and blackmail wouldn’t be treated as content-based either.

There’s still something morally troubling about banning people from saying that they’re in desperate need and want money. But the First Amendment shouldn’t be read in such an absolute way -- and if it is, the consequences for the rest of our law are apt to be disastrous.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net