This is an opinion-editorial that originally ran on the Seacoast Online on Sunday, December 31, 2017.
One of the guaranteed and expected sights and sounds of the holiday season is the Salvation Army bell and red bucket. The bell is seen as heartwarming and symbolic of the holiday spirit of giving, rather than as intrusive or annoying.
No police officer would ever consider asking a Salvation Army bell ringer to get off the sidewalk, or worse cite them and make them go to court for asking passersby for money. So during this season of giving, it is worth stopping to ask why municipalities often treat panhandlers so differently and remind ourselves that they are entitled to the same free speech protections under the law.
It’s easy to point to attire or presentation as the reason why the red bucket is welcomed but the tin cup is not. However, the law makes no distinction between the two. Courts in New Hampshire and elsewhere have made clear that peaceful panhandling speech is protected under the Constitution.
Just as a person has the free speech right to ask passersby to support a charitable organization or a political candidate, a person has the right to peacefully ask those same passersby for money or support. To dictate otherwise would be unconstitutional viewpoint discrimination.
Last year, the American Civil Liberties Union of New Hampshire (ACLU-NH) had to sue the City of Manchester because it was suppressing the free speech rights of peaceful panhandlers. In that case, a federal court struck down Manchester’s antipanhandling police practices and ordinance. After the decision, the case settled for $89,000, which included legal fees.
Similarly, in 2014, the ACLU-NH took to court the Town of Hudson, challenging law enforcement’s practice of harassing, detaining, and citing peaceful panhandlers. The following year, as part of a settlement, Hudson formally agreed to pay $37,500, be subject to a permanent order restricting its ability to suppress the peaceful speech of panhandlers, and conduct further police training on the terms of the permanent consent order.
Also in 2014, the ACLU-NH had to threaten litigation against the City of Rochester because the city had passed an unconstitutional anti-panhandling ordinance (which was subsequently repealed). New Hampshire municipalities should take heed of these cases and refrain from discriminating against panhandler speech. However, the City of Rochester is currently considering ways to enact an anti-panhandling ordinance despite the recent federal court decision striking down Manchester’s anti-panhandling practices. Rochester and other municipalities should resist this temptation, as it is fraught with peril.
What previous cases exemplify is the unlikelihood that a municipality can regulate peaceful panhandling speech in a constitutional way. Any municipality’s effort to regulate this type of peaceful speech is likely to be struck down and impose significant financial costs on municipal taxpayers.
Municipal efforts to regulate panhandling - though often couched in the terms of public safety - are most often motivated by a basic dislike of this type speech. But, of course, the First Amendment protects all speech, the popular and unpopular alike. Seeing speech we dislike or find offensive is the price we must pay for living in a free society.
Free speech means little if it only applies to speech with which we feel comfortable during the holiday season, like solicitations on the sidewalk from people with Santa suits, nice coats, and polished shoes. Simply put, a panhandler - like a Salvation Army worker - has a right to ask for a donation, and a person has the right to not donate. That is how the First Amendment works.
Efforts to ban panhandling miss the boat. Pointing the finger at panhandling is to blame people for poverty. Or worse, an effort to hide poverty’s symptoms from public view.
The societal answer to panhandling should not be law enforcement, but social empowerment. This means looking at what more we can do to provide mental health services and addiction treatment, as well as affordable housing and job training. These often involve comprehensive undertakings by departments and organizations, which can be daunting and expensive. But criminalizing panhandling is not an alternative solution.
The First Amendment is as strong as it is because it is indiscriminate. It does not distinguish between rich and poor, between convenient and not. A tin cup is as protected as the infamous Salvation Army bucket. Speech is speech. It is all protected.