[Reprinted from the ACLU of New Hampshire's editorial in the Nashua Telegraph on August 22, 2014 entitled "There's No Law Against Asking For Help," authored by NHCLU staff attorney, Gilles Bissonnette]
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The town of Hudson thinks it’s a crime for a poor person to peacefully hold a sign on a sidewalk asking others for financial assistance. It’s not a crime. It’s speech protected by the Constitution.
The New Hampshire Civil Liberties Union, with the assistance of the law firm Sheehan Phinney Bass + Green, filed a federal lawsuit on Wednesday against Hudson, challenging the town’s practice of detaining, harassing, threatening, dispersing and citing peaceful panhandlers. Hudson’s practice not only lacks compassion for the poor; it also violates the First Amendment. We filed this case on behalf of Jeffery Pendleton, a homeless man in the Nashua/Hudson area who has been detained, threatened, and cited by the Hudson police for peacefully panhandling.
The Hudson Police Department’s practice of suppressing the rights of peaceful panhandlers is pervasive and disturbing. From March 2011 to March 2014, at least 12 Hudson police officers in at least 18 separate incidents stopped panhandlers and instructed them that panhandling was illegal or required a permit. These panhandlers were then ordered to be “on their way.” At least two panhandlers – including Mr. Pendleton – were cited and directed to go to court. Each of these incidents concerned peaceful panhandling, not threatening or unwanted physical contact, which is already unlawful.
Here’s the problem: There’s actually no state or town law banning or restricting peaceful panhandling. Even if there was, it would be unconstitutional.
As courts have ruled for decades, panhandling is an expressive activity that is protected by the First Amendment. As one federal appellate court explained: “Begging frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation. Even without particularized speech, however, the presence of an unkempt and disheveled person holding out his or her hand or a cup to receive a donation itself conveys a message of need for support and assistance.” Just as a person has the free-speech right to ask someone to support a charitable organization or contribute to a political campaign, a person has the right to peacefully engage fellow human beings with the hope of receiving aid and compassion.
Some dislike peaceful panhandling speech. But how we value the First Amendment is put to the real test when the speaker is someone we dislike or disagree with. Hudson Board of Selectmen Chairman Roger Coutu, when interviewed by The Telegraph after our lawsuit was filed, expressed disapproval of panhandling. He stated, “I am not convinced that everyone out there panhandling couldn’t get a job.” However, speech cannot be suppressed simply because government officials dislike or disagree with it. That’s unconstitutional viewpoint discrimination.
Unfortunately, Hudson has engaged in viewpoint discrimination by targeting the panhandling speech of the poor. For example, while the Hudson Police Department has cited Mr. Pendleton for engaging in peaceful solicitation, the police department has decided to allow the Hudson Fire Department to engage in the same form of solicitation for charity in public places without any repercussions. Freedom of speech is meaningless if the government is allowed to pick and choose the people to whom it applies.
Nor is it permissible – as the U.S. Supreme Court recently made clear in striking down a 35-foot buffer zone around reproductive health clinics – to ban certain speech on streets and sidewalks because the speech could make a person feel “uncomfortable.” We all must tolerate “uncomfortable” speech in order to provide adequate breathing space to the freedoms protected by the First Amendment. This is the price we pay to live in a free and open society.
The proper response to speech one dislikes is not to suppress the speech, but to encourage more speech. Here, just as people like Mr. Pendleton have the right to peacefully ask their fellow man for donations in public places, a recipient of such a request has the right to say “no.”
Panhandling is not a solution to poverty. But neither is criminalizing panhandling. None of the panhandlers we have spoken to wanted to be in the position they are in, and New Hampshire can’t afford to shut its eyes to poverty or sweep it out of sight. When we use law enforcement to target the poor for doing the things they must do to survive, we dehumanize these members of our community, push them further into the margins, create barriers to employment and housing, and ostracize them from the very services they most need to move out of poverty.
Our lawsuit is not just about the ability of poor people to live and exist in public spaces without fear of being threatened and detained by law enforcement. It’s about treating the poor with human dignity and compassion.