Yes, the First Amendment Protects Panhandling: A Defense of the Supreme Court's 'Free Speech Absolutism'

Americans should not have to beg government officials' permission to speak peacefully to others. Reed ensures that they need not do so. If this be free-speech absolutism, make the most of it.
05/11/2016 03:04 pm ET Updated May 12, 2017
Man Begging for Money
Man Begging for Money

Is panhandling constitutionally protected speech? Professor Noah Feldman, writing at Bloomberg View, claims that it is not and contends that the Supreme Court's decision in Reed v. Town of Gilbert (2015) should not be read to prevent government officials from prohibiting street begging. In Reed, the Court held that content-based regulations of speech trigger strict judicial scrutiny -- the most demanding standard of review in constitutional cases -- and explained that speech regulations are content-based if they single out specific subject matters for differential treatment, either on their face or by design. Feldman argues that Reed should not be interpreted to mean everything that it in fact says, because the consequences of taking it at face value would be "disastrous." He further argues that, in any event, panhandling is "conduct," not speech, and thus can be targeted without triggering strict scrutiny. Thus, he criticizes a more recent decision in which a panel of the Seventh Circuit Court of Appeals, relying upon Reed, invalidated a panhandling ordinance.

Feldman misunderstands Reed and thus fails to grasp its implications. Interpreting Reed to mean what it says will not point us towards a dystopia. Reed does, however, require the government to offer compelling, evidence-based justifications for speech regulations that target constitutionally protected speech on the basis of its communicative content--panhandling ordinances included.

Let's begin with Reed. Reed involved the Good News Community Church -- a small, cash-strapped entity that owns no buildings -- which held its services at elementary schools or other locations, and advertised its services through temporary signs in Gilbert, Arizona. Under Gilbert's sign code, the church's signs were subjected to far greater restrictions than were temporary signs featuring political, ideological, and other messages. A unanimous Supreme Court invalidated the sign code. Writing for the Court, Justice Clarence Thomas stated that "[a] law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech." Because Gilbert's sign code expressly classified signs based "entirely on the communicative content of the sign," strict scrutiny applied.

Although Feldman characterizes Reed as an expression of Justice Thomas' "free-speech absolutis[m]," Reed was no radical departure from settled precedent. The first major Supreme Court cases to focus on content-based speech regulations held that speech regulations were content-based (and subject to strict scrutiny) if government officials had to inspect the content of speech to determine how it should be regulated. But language in several of the Court's subsequent opinions had been construed by federal courts of appeals to mean that certain laws could be treated as content-neutral (and therefore entitled to more government-friendly intermediate scrutiny) even if they explicitly classified and restricted speech based on its communicative content, so long as the government had purportedly non-censorial intentions. Reed clarified that regulations of speech are content-based if either they expressly classify speech on the basis of its content or if their purpose and justification are content-based -- and that judges must inquire into each question.

The panhandling case discussed by Feldman involved a local ordinance in Springfield, Illinois that defined panhandling as an oral request for an immediate donation of money. Signs requesting money were allowed, as were oral pleas to send money later. That is to say, law enforcement authorities would have to examine the content of the message conveyed to determine whether a violation occurred.

In Norton v. City of Springfield, a divided panel of the Seventh Circuit Court of Appeals initially upheld the ordinance after determining that it was not content-based. Judge Frank Easterbook, writing for the panel, distinguished between two kinds of regulations: "regulation that restricts speech because of the ideas that it conveys" and "regulation that restricts speech because the government disapproves of its message." Reasoning that "Give me money right now" does not "express an idea or message about politics, the arts, or any other topic on which the government may seek to throttle expression in order to protect itself or a favored group of speakers," the panel found that the city had not "meddled with the marketplace of ideas" and thus strict scrutiny was not appropriate.

After Reed, the Seventh Circuit accepted a petition for rehearing. This time around, Judge Easterbrook (again writing for the panel) identified strict scrutiny as the proper standard of review, recognizing the import of Reed: "Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification." The ordinance at issue did precisely that by "barring oral requests for money now but not regulating requests for money later."

In Feldman's view, Reed does not require the application of strict scrutiny to panhandling ordinances. Essentially, he contends that our speech jurisprudence would be destabilized if the Court really meant what it said, and he construes Reed more narrowly than did Judge Easterbrook in order to avoid that result. Specifically, he expresses concern that criminal prohibitions against blackmail, fraud and harassment will become "constitutionally suspect" if content-based speech regulations automatically trigger strict scrutiny. Those activities can, after all, "be performed entirely via speech."

Feldman's concern is unfounded. The fact that certain activities take place through speech does not mean that regulation aimed at the non-expressive legal effect of that speech must receive strict scrutiny under Reed. When doctors write prescriptions, they give patients the right to make a purchase that would otherwise be illegal. When financial advisors invest funds on behalf of clients, they transmit an order that creates an entitlement to property. Regulations of these activities would not automatically trigger strict scrutiny.

Further, as Feldman concedes, criminal prohibitions against blackmail, fraud and harassment are supported by the government's compelling interest in protecting people's property and safety. Although Feldman wonders whether many such prohibitions are not sufficiently "narrowly tailored," First Amendment overbreadth doctrine requires wholesale invalidation of statutes only when a "substantial number" of a statute's applications "are unconstitutional, judged in relation to [that law's] plainly legitimate sweep." Finally, Reed's command of strict scrutiny would not apply to content-based regulations of constitutionally unprotected speech, such as true threats or incitement to imminent lawless action.

Panhandling ordinances like the one at issue in Norton, however, should receive strict scrutiny under Reed. Feldman's effort to characterize the ordinance as a ban on "the conduct of begging, not the content of the speech" is unconvincing. Begging connotes speech with a specific subject matter -- to beg is to request an immediate donation of money as charity. On Feldman's reasoning, a ban on delivering religious sermons could escape strict scrutiny if it were characterized as a regulation of the conduct of preaching, not the content of the speech. If the "conduct" targeted by the government consists in speech with a particular kind of communicative content, a regulation which targets that conduct is a content-based regulation of speech, and the government must offer a compelling showing of necessity.

To be sure, there are unresolved tensions in our speech jurisprudence. Panhandling illuminates one of them. Consider also the vexed question of the constitutional status of occupational speech: the speech of tour guides, therapists, consultants and others who earn their living through vocations that consist almost entirely of speaking. The fact that occupational speech is compensated does not mean that it is constitutionally unprotected. Any law that restricts speech about some subjects and not others is necessarily content-based. Finally, any scheme that compels people to seek the government's approval before they may communicate or publish opinions, advice or information is a system of prior restraints on speech that "bear[s] a heavy presumption against its constitutional validity."

But the most explicit guidance on occupational speech from the Supreme Court--a three-Justice concurrence in Lowe v. SEC (1985) that has never been cited by a majority--wrongly suggests that licensing certain kinds of occupational speech poses no First Amendment problem. While some federal courts of appeals have subjected restrictions on occupational speech to heightened judicial scrutiny, others have concluded that such restrictions do not implicate the First Amendment and have applied highly deferential rational-basis review.

Reed holds the potential to resolve these tensions. It stands for the proposition that every burden on right to speak freely requires judicial engagement -- impartial, evidence-based scrutiny of the constitutionality of the government's true ends and means, without deference to the government. It rests upon the recognition that there is rarely a constitutionally proper reason for government officials to single out particular topics of discussion, and that any such singling-out is likely to be an exercise in censorship -- an effort to suppress speech simply because the politically powerful find it disagreeable, whether for political, ideological, economic, or aesthetic reasons--even if government officials profess public-spirited goals. It thus puts an appropriately heavy burden on the government to demonstrate that its actions are calculated to protect individual rights, not to extinguish them.

Americans should not have to beg government officials' permission to speak peacefully to others. Reed ensures that they need not do so. If this be free-speech absolutism, make the most of it.

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