Buddy, Can You Spare a Dime?

By Andrea Sachs

Do the poor have a constitutional right to beg? Yes, says New York federal district-court judge Leonard Sand. In a novel ruling, Sand found that panhandling is a form of free speech protected by the First Amendment. "A true test of one's commitment to constitutional principles," he wrote, "is the extent to which recognition is given to the rights of those in our midst who are the least affluent, least powerful and least welcome."

The case grew out of attempts by the Metropolitan Transit Authority to crack down on panhandling in New York City subway cars and stations, but the ruling has nationwide implications. Seeking to stem the proliferation of needy and homeless in a system that serves 1 billion passengers a year, the MTA last October launched its so-called Operation Enforcement. Within weeks, two homeless panhandlers -- Papa Joe Walley, 50, and William Young Jr., 40 -- complained to the Legal Action Center for the Homeless that they were being harassed by the police while begging in the subway. The center filed a class action against the MTA on behalf of Walley, Young and others like them.

In his ruling, handed down two weeks ago, Judge Sand indicated that the MTA had gone too far by imposing a total ban instead of specifying the times, places and types of begging that it considered out of bounds. "While the government has an interest in preserving the quality of urban life," wrote Sand, "this interest must be discounted where the regulation has the principal effect of keeping a public problem involving human beings out of sight and therefore out of mind."

Advocates for the needy applauded the decision, which has continued to reverberate nationally. "If you silence a beggar, you cut off one of his or her most effective means of communication and advocacy," said Douglas Lasdon, executive director of the Legal Action Center for the Homeless. "If the homeless have received any assistance, it is because their pleas have been seen and heard." Burt Neuborne, a law professor at New York University, concurred, arguing that "to the extent subways are simply extensions of the streets, the same freedoms should apply in both places." But the MTA denounced the judge's action and said it would appeal. "The subway is there for one purpose and one purpose alone: to move people from one place to another," said Chairman Robert Kiley. "We are not the same as an auditorium or an arena or even a street."

Judge Sand's opinion runs contrary to the traditional American legal view of begging. Although panhandling involves speaking, the activity has not generally been viewed as a First Amendment issue. Throughout history, begging has been regulated, monitored and sometimes prohibited; half the states in the U.S. currently have statutes that limit or ban begging. Yet Sand's reasoning could prove persuasive to other courts in search of answers to the problem of panhandling by the homeless. Moreover, his ruling is in line with three cases in the past decade in which the U.S. Supreme Court has held that professional fund raisers have a First Amendment right to seek donations.

Overly aggressive or dangerous panhandlers, however, will not automatically enjoy legal protection. "Judge Sand's ruling doesn't say a beggar can corner people or abuse them," explained Columbia law professor Vincent Blasi. "The First Amendment protects only the right to ask, not the right to harass." In fact, several days after his ruling, Judge Sand modified the decision to allow the MTA to regulate panhandling more selectively by banning solicitations on moving subway cars and near token booths.