Question 2

The Right to Beg

State X amended its anti-loitering statute by adding a new section 4, which reads as follows:

A person is guilty of loitering when the person loiters, remains, or wanders about in a public place, or on that part of private property that is open to the public, for the purpose of begging.

Alice, Bob, and Mac were separately convicted in a State X court of violating section 4.

Alice was convicted of loitering for the purpose of begging on a sidewalk located outside the City’s Public Center for the Performing Arts in violation of section 4.

Bob was convicted of loitering for the purpose of begging on a waiting platform at a stop on City’s subway system in violation of section 4.

Mac was convicted of loitering for the purpose of begging in the lobby of the privately owned Downtown Lawyers Building located in the business district of City in violation of section 4.

Alice, Bob, and Mac have each appealed their convictions, and their appeals have been consolidated in the State X appellate court. It has been stipulated that Alice, Bob, and Mac are indigent, that section 4 is not void for vagueness, and that the only issue on appeal concerns the validity of section 4 under the First Amendment to the United States Constitution.

How should the appellate court decide the three appeals, and why? Discuss.

Answer 2

This answer provided by Rosemary’s Review, (415) 441-9195, www.rosemarysreview.com.

First Amendment and the 14th Amendment

Under the First Amendment, Congress cannot abridge the people’s right to freedom of speech and assembly. This guarantee, and the Sixth Amendment right above, is applicable to the states by the due process clause of the 14th Amendment.

Is Begging Speech or Is It Conduct?

Speech consists of spoken words and conduct that communicates. State X will argue that the statute is trying to regulate loitering or wandering or remaining which is conduct that does not communicate. However, Alice, Bob and Mac will argue that the statute’s real purpose is to regulate begging which does communicate either by words (typically a request for money) or by gesture (a disheveled person holding out his or her hand to indicate the same need). Assuming that Alice, Bob and Mac were either asking for money or were otherwise indicating that they were begging, the court will conclude that begging is speech, and that section 4 of the State X anti-loitering statute does attempt to regulate speech.

Is Begging Protected Speech?

Words to insight violence, words that are obscene, defamation and words used to mislead are all unprotected speech and can be regulated by the government. All other speech is protected including begging. All charities ask for money either by mail, television, radio or in person. Although, it is not as socially acceptable for a beggar to ask for money as for a charity to, nor does a beggar ask for money on as large a scale as a charity does, nevertheless they both ask for money. Thus, begging is protected speech.

Is Begging Commercial Speech?

Commercial speech is speech that advertises a product or service in exchange for money. However, like charities, beggars ask for donations with no promise of a service or product in return. Thus, begging is not commercial speech.

Regulation of Protected Speech

The government may regulate protected speech as long as the regulation is a reasonable time, place and manner restriction. The test that evaluates the reasonableness of the restriction is determined by the forum in which the speech occurs.

Public Forum — Alice’s Claim

Generally, the right to free speech in public forums cannot be denied by the government.

Public forums are streets, sidewalks, parks and places where the government meets. Here, Alice was convicted of loitering on a sidewalk outside the City’s Public Center for the Performing Arts. Thus, Alice was exercising her First Amendment right in a public forum and cannot be denied this right unless State X’s regulation meets the strict scrutiny test.

Strict Scrutiny

A government regulation limiting or denying speech in a public forum will only be upheld if the government can prove that the regulation is content neutral, narrowly tailored to serve a significant government interest, and there are alternative channels of communication available for the expression of the regulated speech.

Content Neutral

State X may argue that the statute is content neutral because it does not regulate a beggar’s speech content and was drafted to control the accompanying circumstances of begging, for example, litter, unsanitary conditions, harassment of the general public, etc.

Narrowly Tailored & Significant Government Interest

Here, State X will argue that they have a significant government interest in protecting the welfare of the public that is compromised by begging on public streets because beggars are often mentally ill, belligerent, hostile and sometimes combative and violent, and thus pose a threat to the public. In addition, beggars often lack socially acceptable personal hygiene and pose a danger to the health of State X’s citizens.

Even if State X prevails on the above arguments, which is unlikely, they will not be able to prove that the total prohibition of loitering is narrowly tailored to achieve its interests. In addition, Alice does not have access to alternative channels to exercise her First Amendment right to beg because she is indigent and does not own her own property where she would be free to exercise this right.

Bob’s Claim — Non-Public Forum — Intermediate Scrutiny

Bob was convicted of loitering on a waiting platform at a stop in City’s subway system. A subway is a non-public or semi-public forum, as are airports, train stations, military bases and federal government workplaces. A statute regulating speech in a non-public forum must be viewpoint neutral and reasonably related to a legitimate government purpose to be upheld. Here, the State X statute expresses no view as to whether begging is good or bad, and thus the statute is viewpoint neutral.

State X will further argue that they have a legitimate government purpose for banning begging on subway platforms. They will argue that when people loiter or remain on the platform, they further crowd an already crowded platform built to accommodate only the number of passengers that can board a train at one time. This crowding increases the chance of someone falling or being pushed onto the tracks, or down an escalator, and makes it harder to evacuate the area in case of a fire or other disaster. Thus, the government does have a legitimate government purpose. State X will further argue that section 4 of the statute is reasonably related to this purpose because it keeps the platform from overcrowding, which increases the safety and security of the citizens. The court will find that State X has met its burden and Bob’s conviction will stand.

Mac’s Claim — Private Forum

Mac was convicted of loitering for the purpose of begging in the lobby of the privately owned Downtown Lawyers Building located in the business district of City in violation of section 4.

The government can regulate speech that occurs in private forums if the regulation is reasonably related to a legitimate government interest. The lobby of the privately owned Downtown Lawyers Building is a private forum, just as shopping malls and other businesses open to the public. Thus, State X must only prove that the regulation is reasonably related to a legitimate government interest.

State X will argue that it has a legitimate interest in protecting the health and welfare of its citizens in private places open to the public, as citizens are enclosed in such places and not as free to escape the exposure to begging as they are in public places. Thus, Mac’s appeal will be denied and his conviction will stand.

Overbroad

A regulation is overbroad and will be struck down if it bans substantially more speech than is necessary. Here, section 4 of the State X anti-loitering statute bans loitering, remaining or wandering in public places, and private property open to the public for the purpose of begging. Since the statute doesn’t ban begging from all places, public or private, it doesn’t ban substantially more speech than is necessary, and thus is not overbroad.

Prior Restraint

A prior restraint is any governmental action that prevents speech before it occurs. Here, the anti-loitering statute is preventing begging (speech) before it occurs, and thus it is a prior restraint. In order for a regulation that is a prior restraint to be upheld it must be narrowly tailored to achieve a compelling government interest. As stated above, the restriction on loitering in public places does not withstand this test.