Courts around the United States agree: Panhandling is constitutionally protected speech. That's not to say municipalities can't place some restrictions on where and when individuals may exercise their rights to this or any other form of free speech (more on that later), but freedom of speech itself is one of the bedrocks of the First Amendment — and of American freedoms in general.
Nevertheless, laws against panhandling have been on the books for years in New Orleans. Section 54-411 of the City Code reads, "It shall be unlawful for any person to commit the crime of begging as set forth herein. Begging is the unauthorized solicitation for money or anything of value by any person." The ordinance goes on to attempt to outlaw a variety of forms of begging, including "soliciting employment" and "soliciting business or charitable contributions." By almost any constitutional standard, the local ordinance is overly broad.
Earlier this year, Orleans Parish Criminal District Court Judge Arthur Hunter threw out charges against a panhandler who had been booked by the New Orleans Police Department on a misdemeanor charge of panhandling — to which was added a felony charge of drug possession. The drug charge came after the initial panhandling arrest, when cops discovered the panhandler also had cocaine in his possession. The Orleans Parish District Attorney's Office took the adverse pre-trial dismissal of the panhandling charge to an appellate court and lost. Last week, the Louisiana Supreme Court declined to grant the DA's writ application, thereby terminating the appeal and effectively upholding the lower courts' decisions.
New Orleans is not the only city grappling with ways to restrict if not eliminate panhandling on its streets. In August, the U.S. Sixth Circuit Court of Appeals struck down a decades-old Michigan law against panhandling, after more than 200 people were sent to jail for begging between 2008 and 2011, according to the Detroit News. (In that case, the court noted in its opinion that 38 percent of the people cited under the begging law were carrying signs asking for food or work.)
Several years back, in Arizona, a woman in her 70s was arrested when she asked for change from a man who turned out to be an undercover police officer. The American Civil Liberties Union (ACLU) of Arizona took up the woman's case, and in October, U.S. District Court Judge Neil Wake declared the state's broad law against panhandling to be unconstitutional.
New Orleans, in fact, has been here before, albeit in a slightly different way. A 2011 city ordinance that banned people's right to "loiter or congregate on Bourbon Street for the purpose of disseminating any social, political or religious message between the hours of sunset and sunrise" immediately drew fire from some pastors who said that restriction infringed upon their right to free speech. In July, the City Council — recognizing a fight they weren't going to win — struck the language from the city's ordinances.
None of this is to say that begging is a good thing on our city streets — or that the many people who beg are simply fine people down on their luck. It should be noted that courts have found some laws regulating speech to be compatible with the First Amendment. Restrictions as to time, place and manner of even protected forms of speech are permissible if they are narrowly tailored to serve a compelling governmental interest — and if less restrictive means are not available. Suffice it to say that any First Amendment case involving free speech is fact-intensive, particularly when the speech that government seeks to restrict involves religion or politics. Other forms of speech, such as commercial speech — and panhandling — may be more easily restricted, but even they require regulators to articulate an important governmental interest and to tailor the restrictions narrowly to achieve that interest.
New Orleans' begging ordinance is so broad it would seem to outlaw many common sights in New Orleans — not just the familiar French Quarter ploy, "Spare some change for a beer?", but also firefighters' roadside "boot shakes" for donations, children asking for donations for team sports and cheerleading and people near freeway ramps holding signs offering to work for food. In the wake of the recent adverse court rulings, the mayor and City Council must fashion new, constitutionally permissible restrictions on panhandling. This will be no easy task, but given our city's dependence on tourism it will be worth the effort.
At the same time, city leaders must recognize that many panhandlers are homeless. Begging is a symptom of a deeper societal ill that many already are working hard to alleviate.