Many cities across the country have been restricting the practice of panhandling — begging or requesting money in public places. But are these laws potentially infringing on the panhandlers’ First Amendment right to freedom of speech? This question becomes more complicated when you take into consideration the differences between verbally asking strangers for money and the act of simply holding a sign that asks for money.
While many people do not appreciate being approached by panhandlers, the fact remains that they have a right to be there and exercise their free speech rights in asking for money, work opportunities, food or other items. But to what extent is panhandling protected by the First Amendment? Let’s explore this more in-depth:
Village of Schaumburg v. Citizens for a Better Environment
In this 1980 Supreme Court case, the Citizens for a Better Environment nonprofit organization sued the village of Schaumburg for what it alleged was an unconstitutional ordinance against door-to-door solicitation by charities that did not use at least 75 percent of their funds for “charitable purposes” (excluding administration costs such as nonprofit employees’ salaries).
When the case reached the Supreme Court, it resulted in a 8-1 decision in favor of the nonprofit. The majority opinion included important arguments that later became integral to protecting panhandlers’ rights, including statements such as “solicitation for money is closely intertwined with speech” and “solicitation to pay or contribute money is protected under the First Amendment.”
Passive vs. Aggressive Panhandling
There have been multiple legal battles involving cities and solicitation restrictions since Citizens for a Better Environment, many of which have ruled in favor of panhandlers on the basis of free speech. Other decisions cite the Fourteenth Amendment alongside the First Amendment.
One common area of debate when it comes to anti-solicitation ordinances is the passivity or aggressiveness of the panhandling. For example, is it someone standing on the side of a road, holding a sign that asks for money? Or is it someone actively (and perhaps menacingly or threateningly) pursuing citizens and harassing them for money? There’s a big difference between the two main forms of panhandling, the latter of which may be considered robbery or public nuisance/disturbance and thus, not protected by the First Amendment.
Common Ordinance Restrictions
According to the First Amendment Encyclopedia published by Middle Tennessee State University, city ordinances regulating panhandling and other forms of solicitation in public spaces must follow these guidelines:
- be neutral in content;
- be narrowly tailored;
- leave open ample alternative channels of communication;
- serve a significant government interest that is pressing and legitimate.
Consequently, many municipalities are constantly updating their solicitation ordinances to avoid trampeling on panhandlers’ First Amendment rights while simultaneously balancing the public’s desire for minimal nuisances.
As we increasingly move toward a cash-less society with the help of instantaneous payment apps like Venmo, Google Pay, Apply Pay, and credit card-specific smartphone payment apps, we’re at risk of hindering our democracy. How so?
Perhaps this isn’t a major concern in the United States yet, but the protests in Hong Kong have brought to light a concerning issue in regards to personal privacy and cash-less payments. In Hong Kong, there’s something called an “Octopus Card,” which is distributed by a financial company owned primarily by the government of Hong Kong. Most residents of Hong Kong rely on this card to pay for everything from groceries to clothing, but in wake of the protests, people are worried that the government could be tracking their location and financial activity with the help of the Octopus Card.
Although the U.S. government isn’t heavily involved in the cash-less payment markets (yet?), it’s nevertheless concerning how much of a privacy violation these smartphone apps could be. After all, a privacy researcher in Berlin managed to analyze over 18 million Venmo users’ information related to more than 208 million public transactions because the users never changed the app’s default settings to private. This means that many users could be inadvertently sharing their purchasing habits, location, lifestyle choices and other personal information with literally anyone who can access and browse through the app.
As we strive to improve consumer convenience with cash-less payments, individuals’ privacy, freedom of speech and even freedom of assembly could be at stake. Let’s examine this issue further:
Surveilling Your Financial Activity
As an article in The Atlantic points out, “In a cashless society, the cash has been converted into numbers, into signals, into electronic currents. In short: Information replaces cash….and wherever information gathers and flows, two predators follow closely behind it: censorship and surveillance.”
Another article from Ars Technica in 2018 similarly argues that Venmo (and other cash-less payment systems like PayPal) are frequently criticized by consumer groups and even targeted by the Federal Trade Commission for consumer privacy violations. Since the default setting for many apps’ transactions is “public,” users could be unwittingly sharing their personal financial activities with anyone who wants to view them. This, in turn, could lead to serious issues related to surveillance if the government or other entities can see how much your spending on what at any given point (your entire payment history is also public on the default setting).
Another concern for individual privacy rights advocates is the potential for governments to track where consumers are spending their money. Some payment apps keep location records on their users (how detailed and how long that information is kept remains unknown).
As we can see from peoples’ personal experiences with civil asset forfeiture laws, there’s tremendous potential for abusing individuals’ privacy, freedom of expression and freedom of assembly if just about anyone can view their financial and location records at any time. As more and more consumers rely on cash-less payment apps, we need to do more as a society to ensure their rights will not be violated in the midst of everyday financial transactions.
We’ve written countless blog posts about free speech in higher education and on high school campuses, but a new troubling trend seems to be emerging nowadays: state laws designed to protect free speech that, due to their vaguely worded mandates, may actually silence and/or punish those expressing dissent and other forms of counter-speech.
Clearly this is not the intent of these pieces of legislation, but they nevertheless demonstrate the difficulty of navigating free speech laws and college policies while balancing individuals’ rights, regardless of their political beliefs or affiliations. Here are just some of the many examples of potentially problematic free speech protection laws that are either newly in effect or going into effect soon:
Alabama recently passed HB498, which effectively bans the existence of designated “free speech zones” on college campuses in the state. On the surface, this seems like a great victory for free speech advocates, but there’s a troubling flip side: the “disciplinary sanctions” that could be imposed against those who interrupt/disrupt someone else’s free speech are incredibly vague.
In other words, we have little idea of what the consequences would be if a counter-protester gets involved. Could they be sued? Kicked out of the college? Arrested? There are few clear consequences outlined in the bill, which could force the college administration, law enforcement officials and/or the state to prioritize one person’s freedom of expression over another’s.
Does the person who began speaking/protesting first get priority? What if they’re both shouting over each other, which arguably fits under this law’s definition of “substantially” disrupting another person’s free expression?
Until these questions are resolved, this law could pose a serious threat to counter-protesters’ First Amendment rights due to the sheer ambiguity of the law itself.
“Interfering” with Others’ Free Speech
In addition to Alabama, Texas recently passed SB18, which substantially increased protections for free speech rights on college campuses throughout the state of Texas. However, the bill poses the same problems as Alabama’s new bill: the consequences of “interfering” with someone else’s freedom of expression are not clearly outlined in the bill.
Specifically, the bill says there could be “disciplinary sanctions for students, student organizations, or faculty who unduly interfere with the expressive activities of others on campus.” While this sounds like a strong protection in favor of free speech, what exactly constitutes “unduly interferes”? Would a counter-protester be considered “unduly” interfering with the original protester’s free expression?
These are just two of the many examples of free speech controversies going on around the country’s college campuses nowadays, but they still serve as important reminders that even well intentioned legislation in favor of free speech can have damaging consequences.
Some of the most groundbreaking reports that have been investigated and published by journalists over the past several decades were only possible thanks to a free press concept known as “reporter’s privilege.” According to the First Amendment Encyclopedia, reporter’s privilege refers to the idea that journalists should not and cannot be compelled to reveal their anonymous sources or other confidential information in a court of law.
Although reporter’s privilege is not absolute — and the extent of its protections under the First Amendment remain somewhat murky after the 1972 Branzburg v. Hayes Supreme Court decision — many states have their own constitutional statutes for protecting reporters’ sources and confidential information obtained in the course of their standard reporting duties.
The concept of a shield law is related to reporter’s privilege because these are legal mechanisms that “shield” reporters against the threat of forcibly publishing or revealing their sources’ identities and other confidential matters. As of 2019, there remains no federal-level shield law protecting journalists, although 49 states and the District of Columbia have enacted their own versions of shield laws to ensure the free flow of information without legally compromising journalists who are simply doing their jobs.
In cases where shield laws did not apply or were not sufficient enough to protect the journalists, some reporters have invoked the 5th Amendment as a means for protecting their sources.
When Are Sources Not Protected?
Reporters’ sources may not be protected in instances where the shield laws are not clearly applicable, such as the recent case of an online journalist in Nevada, who a judge said must reveal his source because he was not previously a member of the Nevada Press Association (note: the Nevada state shield law does not explicitly specify that it only applies to NPA members).
In other cases, a journalist may feel ethically obligated to reveal her source or confidential information. It’s never an easy decision for reporters to withhold information about their interview subjects and other stakeholders involved in news stories, since transparency is another goal of every journalist. But this “privilege” is integral to ensuring a free press in the United States so perhaps it’s time for the federal government to enact its own shield law in line with the First Amendment’s guarantee to a free and independent press.
Many of you may have noticed we kicked off a membership drive last week. Please consider becoming a paid member to help us bring FAV programming to those who lack the resources or access. We are grateful to a generous donor who provided matching donations to help incentivize our campaign. Double your impact now due to the matching donations. More details below. Paid membership comes with exclusive benefits and the knowledge you are helping FAV reach those who may not feel they have a voice in their communities.
This month’s good news story features a community partner, the i5 Freedom Network. The Executive Director, Brenda Wells, started the organization to make an impact against human trafficking. She is currently collaborating with FAV to hold a community forum in San Clemente to raise awareness about illicit massage parlors and to pass a city ordinance to make it more difficult for those establishments to open up. Culling best practices from other nearby cities, Brenda proposed measures that would significantly strengthen the current ordinance. By reviewing websites that feature illicit establishments in town, Brenda assessed that almost one dozen illegitimate establishments operate in San Clemente. These are usually run by organized crime. Most people are unaware of this going on. The i5/FAV public forum will feature speakers to educate the public, including from law enforcement, legitimate massage establishments, city officials, and a survivor of massage parlor trafficking.
The goals of the public panel discussion are twofold: 1) gain momentum to pass a significantly strengthened massage parlor ordinance and 2) raise public awareness on the importance of individuals lending their voice to important community conversations. Brenda is a heroine in the local community, but more importantly, will inspire average citizens to get involved in making their city safer and preventing trafficking from occurring in San Clemente. First Amendment Voice is proud to partner with Brenda and the i5 Freedom Network.
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June Membership Drive
Please consider supporting FAV efforts to push back against fear and apathy and inspire people to #FindTheirVoice and contribute to public discourse. Remember Gary’s story from the April newsletter? If you didn’t get a chance to read it, click the link. Story’s like Gary starting an Instagram contest to promote understanding about Unity and Division in our communities are why FAV exists. Basic membership costs just $25/ year and offers an automatic $25 discount on Symposium registration, in addition to exclusive benefits like our national coffee talk live videoconferences.
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In The News
A report from the Hudson Institute has interesting statistics on the state of anti-Semitism in the U.S. More details here.
This is a fascinating piece about young people who watched YouTube content, both far right and left, and how it can sway beliefs. It’s a fascinating look at one young man’s journey. Read more.
Save the Date
4th Annual National Symposium September 20-21 – the theme is “Polarization.” Paid members get an invitation to an exclusive VIP tour of the Capitol Building after hours. Spaces are limited, so register soon. Sustaining level donors at the $1,000 level get two tickets to the VIP tour while $500 level donors get one ticket. Guarantee that you get the experience to explore polarization in our society.
There has been quite a bit of controversy surrounding students’ political expression on public school campuses in recent years.
From the self-proclaimed, Trump-supporting teacher who said she was simply following orders when censoring a student’s “Make America Great Again” T-shirt in a school yearbook photo to the teen who complained against the school after his “MAGA” hat was blurred in his school yearbook, there are multiple debates happening around the country about what public schools should do about their students’ political expression – without risking a violation of their First Amendment freedoms of self-expression.
Unsurprisingly, these are just some of the many school dress code controversies we’ve seen in the news over the past several years, and it’s not isolated to the United States, either. France has had its own share of controversy over so-called “burqa bans” and Austria recently banned Muslim headscarfs in primary schools.
Whether it’s political attire, religious garb, or other contentious forms of students’ expression through fashion, should public schools be doing more or less to regulate what their pupils are wearing while on campus? Let’s examine both sides of the issue as it’s happening in the United States:
Arguments in Favor of Dress Code Bans
Dress code bans in the United States typically revolve around gendered fashion expressions, such as short shorts/skirts and visible bra straps for girls or sagging pants for boys. However, the upswing in political interest among minors has led to these dress code controversies involving political expression (most frequently involving Trump/MAGA, though this trend is unlikely to end when Trump leaves office, regardless of the next president’s political affiliation).
By banning political expression on public school grounds, educators and administrators (as public employees) risk violating students’ First Amendment rights. However, those in favor of these dress code prohibitions on political attire have argued that the existence of any kind of dress code could constitute a violation of a student’s freedom of expression and yet, multiple court cases have upheld the validity of school dress code regulations in other areas.
Additionally, those in favor of the bans argue that politicized attire can detract from learning and/or create a hostile learning environment for some students whose identities are inextricably linked with certain forms of political attire (e.g., Hispanic students or children of immigrants in class with another student wearing a “Build the Wall” t-shirt).
Arguments Against Dress Code Bans
Those who are against schools banning forms of political speech/expression frequently cite the Tinker v. Des Moines Supreme Court case, in which the Supreme Court sided with students who were suspended for wearing black armbands to protest the war in Vietnam. Upon reaching a decision the majority argued, “students don’t shed their constitutional rights at the school house gates.”
Thus, opponents of dress code bans believe there should be few (if any) restrictions on what students can and cannot wear to school when it comes to political attire. This debate will likely go on for many more years without a clear decision covering every case that comes up. But in the meantime: What do you think? Should students be able to wear whatever political clothing they want on public school campuses or should this form of self-expression be banned?