The state of Michigan may no longer toss homeless men and women in jail for the crime of asking for a few coins so that they can eat. According to decision handed down by the United States Court of Appeals for the Sixth Circuit last week, a decades-old state law prohibiting “begging in a public place” violates the First Amendment’s free speech guarantee. In Grand Rapids, Michigan alone, the law was enforced 409 times against people asking for money. People arrested under this law faced up to 90 days in jail and a $500 fine. One person was jailed for holding a sign reading “Cold and Hungry, God Bless.”
The court rooted its decision in a 1980 Supreme Court decision holding that “charitable appeals for funds, on the street or door to door, involve a variety of speech interests—communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes—that are within the protection of the First Amendment.” Although that case involved solicitation by charitable organizations, the Sixth Circuit reasoned that individuals seeking donations cannot be distinguished from charities for First Amendment purposes, quoting another court’s holding that “[w]hile some communities might wish for all solicitors, beggars and advocates of various causes be vanished from the streets, the First Amendment guarantees their right to be there, deliver their pitch and ask for support.”
Although this opinion aligns with a majority of the federal appeals courts to consider this issue, there is at least one circuit that held begging is not protected by the First Amendment. Thus, there is a decent chance the Supreme Court could agree to hear this case because the Court typically hears cases when “a United States court of appeals has entered a decision in conﬂict with the decision of another United States court of appeals on the same important matter.”
Nevertheless, there is reason to be optimistic that the Sixth Circuit’s opinion will ultimately be upheld even if it does reach the conservative Roberts Court. Although the opinion was authored by Judge Boyce Martin, a liberal lion who, sadly, retired from the bench on Friday, it was joined by Judge Jeffrey Sutton, a conservative former Scalia clerk.