By Peter Burrows 9/3/18

The American Civil Liberties Union of New Mexico is notifying cities around the state that their local panhandling laws are unconstitutional. Here is Silver City’s notification:

www.aclu-nm.org/sites/default/files/field_documents/ltr_to_mayor_ladner-_silver_city.pdf

If the ACLU has its way, and it looks like it has a very strong case, anybody walking in downtown Silver City can expect to be approached by someone who will ask for money. The ACLU says such a person is exercising a First Amendment right of free speech, and any laws that restrict that right, such as designating certain areas as no-begging zones, are unconstitutional.

You are probably thinking, “Whoa, Burro! What about my right to privacy?” Unfortunately, there is nothing in the Constitution about a “right to privacy,” an oversight the courts have been attempting to correct for years, usually involving cases of sexuality and marriage. Roe v. Wade, for example, holds that anti-abortion laws violate a woman’s privacy.

Supreme Court rulings have embodied the notion that a right to privacy is implied in the Constitution. The liberal Justice William Douglas once wrote that a broad right to privacy is found in the “penumbras” (shadows) of the specific protections guaranteed by the Bill of Rights. This was in a case overturning a state’s ban on contraceptives which Douglass deemed a violation of “a right to marital privacy.”

Robert Bork argued that such reasoning deprived elected officials of the legislative power the Constitution meant for them to have. He said: “The Constitution isn’t the only law that exists. It’s only a framework for how we go about things and a list of specific things legislatures must not do. Beyond that, it’s up to the legislature.”

As a strict constructionist, I tend to agree with Bork, yet I am in complete agreement with Justice Louis Brandeis, who wrote in a 1928 opinion that the right to be left alone is “the most comprehensive of rights and the right most valued by civilized men.”

Whether spelled out in the Constitution or not, the right to be left alone is something I think most people would agree is a self-evident, unalienable right, to borrow a couple of phrases from the Declaration of Independence.

I am well aware of the hypocrisies of a strict constructionist looking in the “penumbra” for an unspecified right, while the “penumbra” crowd denies such a right if it conflicts with the statutory right of a panhandler to exercise his or her free speech.

To square this circle, I think we need to recognize that the face-to-face spoken word involves more than just the speaker. Freedom of speech in the written word, e.g. newspapers, magazines, billboards, pamphlets; and in broadcasting, e.g. TV, radio, the Internet; does not require the targets of such speech to pay a damn bit of attention.

A beggar approaching you on the street and making a verbal request is an entirely different proposition. You are then being placed in a situation not of your choosing and, unfortunately, you have no Constitutional “right” to be left alone that overrules the beggar's right to speak to you.

To illustrate the inherent difference in oral versus written speech, imagine you see a beggar on the street carrying a sign that reads: “Give me some money because I need it and don’t ask what I’ll use it for because that’s none of your fucking business.”

I would consider that a legitimate exercise of free speech, and I think you would, too. A little uncivil, but certainly not threatening. Just ignore and walk on by, or if you admire the chutzpah, part with a buck or two. (I would.)

Imagine that the same beggar approaches you and makes that same request verbally, perhaps even in a sweet voice. Same thing? Absolutely not. Most people would feel threatened. In fact, if San Francisco is any guide, threats from panhandlers will become the norm.

Goodbye, downtown businesses.

I’m not an attorney, but it seems to me there are three legal considerations we need to look at in this situation. One, the Bill of Rights is essentially a bunch of laws that limit what the GOVERNMENT can do to an individual. Secondly, the rights in The Bill of Rights are not unqualified. As famously noted, you have no right to falsely yell “fire” in a crowded theater.

Finally, there are legal traditions that have evolved over time in our courts and legislatures that provide protection against encroachments on our privacy by other individuals.

These sorts of privacy protections are called torts, although torts are not confined to privacy violations. A tort is a wrong or injury caused by an INDIVIDUAL for which the victim can seek compensation. Privacy torts, specifically, provide the legal means to seek damages when someone has violated our privacy.

An intrusion tort involves offensive intrusion upon the privacy or solitude of a person, usually physically but also through eavesdropping or wiretaps. It seems to me the unwanted solicitation of a beggar qualifies as an offensive intrusion.

You’re probably thinking, “Big deal, Burro. I’m going to sue some panhandler who gets in my face and a judge will award me the poor slob’s dirty socks, if he has any socks. No thanks.”

Not quite what I had in mind. If the City must allow the panhandling, the City must protect the citizens from the panhandlers, not an especially difficult task. I assume street vendors require a city license, why not those “entrepreneurs” who use our streets to make a living without selling anything?

If the City doesn’t control the panhandlers, sue the City. Maybe the City could then sue the ACLU.

An even better solution would be to allow only non-verbal panhandling. Panhandlers can carry signs or pass out written pleas, but they can neither initiate a verbal exchange nor impede the progress of those on the sidewalk or street. Would that pass muster with the ACLU? Worth a try.