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Michigan’s Panhandling Statute Held Unconstitutional

Michigan's law making it a crime to beg in a public place is unconstitutional, according to a decision issued on August 24, 2012 by the Honorable Robert J. Jonker of the United States District Court for the Western District of Michigan.

Represented by the American Civil Liberties Union Fund of Michigan, Plaintiffs James Speet and Ernest Sims, each of whom were arrested in the City of Grand Rapids for begging in a public place, challenged the constitutionality of Michigan's "panhandling statute," MCL 750.167(1)(h), claiming that the statute was an unconstitutional infringement of their First Amendment right of freedom of speech.

The Honorable Robert J. Jonker agreed.  In doing so, the Court noted that begging, either as speech (a verbal request for assistance) or expressive conduct (wordlessly extending a container for donations), is protected by the First Amendment.  Finding begging analogous to charitable solicitations, the Court opined: 

Begging plainly conveys a message: it communicates, whether verbally or non-verbally, a request for financial or material assistance.  A beggar's message is analogous to other charitable solicitation: in both situations, the speaker is soliciting financial assistance, the beggar for him or herself, and the charitable fundraiser for a third-party.  Courts have held repeatedly that charitable solicitations are a form of protected speech. . . .  The same rationale logically applies to begging[.]

Speet v. Schuette, Case No. 1:11-cv-972, Slip Op. at 5.

Having determined that begging is protected by the First Amendment, the Court then addressed whether the State of Michigan's restriction on that speech was justified.  Because Michigan's panhandling statute prohibited speech in traditional public forums (such as streets and parks), and because it was a content-specific restriction (as it distinguishes between types of speech – charitable solicitations versus other types of advocacy), the Court concluded that the State of Michigan needed to "demonstrate that the statute is narrowly tailored to achieve a compelling state interest" for the statute to be upheld.  Id. at 9.

The Court held the State of Michigan did not meet its burden.  While the State of Michigan argued that the statute protects against the risk of duress and fraud associated with the solicitation of funds, the Court concluded that," [e]ven if these concerns amount to compelling state interests," the "total prohibition on begging in public places" is not "narrowly tailored to achieve these ends."  Id.  As the Court explained:

The government can and does prohibit fraud, assault, and trespass.  But what the government cannot do without violating the First Amendment is categorically prohibit speech and expressive elements that may sometimes be associated with the harmful conduct; it must protect the speech and expression, and focus narrowly and directly on the conduct it seeks to prohibit.

Id.

The Court observed that its decision "comports with the decisions of every Circuit to consider similar restrictions," including the Second, Seventh, Ninth, and Eleventh Circuit.  Id. at 14.  The Sixth Circuit has yet to address this question.  As such, the Court suggested that while its decision did not dispose of the entire action, it may be appropriate to direct final judgment pursuant to Fed. R. Civ. P. 54(b) on the constitutional challenge so that the legal issues could be immediately reviewed by the Sixth Circuit Court of Appeals.

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© 2021 Varnum LLPNational Law Review, Volume II, Number 246
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About this Author

Gary J. Mouw, Varnum, litigation lawyer
Partner

Gary’s practice is primarily focused on representing companies and individuals – in Michigan and across the country – in connection with government enforcement actions and white collar criminal defense. He has extensive experience conducting internal investigations in a wide range of matters, including antitrust claims, False Claims Act suits, and environmental matters. Gary has represented clients in investigations conducted by the United States Department of Justice, the United States Attorney’s Offices throughout the country, the United States Department of Defense,...

616-336-6424
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