The Panhandler's Message

September 22, 1994|By STUART COMSTOCK-GAY

The recent decision by a federal judge upholding the Downtown Partnership's policy of asking panhandlers to ''move along'' inspired great satisfaction in many Baltimoreans. The same judge's decision last month to overturn Baltimore's panhandling law evoked great frustration in the same people.

Many citizens in Baltimore -- indeed many in the country -- are tired of being asked for money by panhandlers. Many of us are tired of being interrupted at any number of points during the day and night by solicitors of one kind or another. But we live under a Constitution that was founded on the premise that citizens can decide for themselves -- without censorship by the government -- when to say ''yes'' and when to say ''no.''

The First Amendment guarantees the right to solicit -- whether you are a business person trying to sell a product, a politician compiling signatures for a petition, the Salvation Army asking for a contribution or a private citizen asking for a handout. In striking Baltimore's panhandling law, Judge Frederick Smalkin recognized that all these solicitations are protected speech and that the government may not discriminate among them -- even when some of them are impolitically and counter-productively ''surly, bilious, [and] argumentative.''

Speech is not always good, eloquent and high-minded. Speech is sometimes bad, ugly, low-minded, silly or stupid. But it is not for the government to decide which speech is the former, and which the latter.

More than 20 years ago, the Supreme Court, in finding unconstitutional an ordinance that regulated labor picketing but not other picketing, said: ''Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.'' Those words have stood us in good stead for decades. It is no time to discard them now.''

This is not to say that the government can't protect its citizens from aggressive conduct that sometimes accompanies panhandling. For example, it is a violation of the criminal law to assault or touch someone without their consent when panhandling and the city is free to arrest a panhandler behaving in that manner.

When all the claims and counterclaims about the city's Aggressive Panhandling Ordinance are distilled, they amount to the following: Nobody objects to legislative efforts to penalize non-expressive conduct that amounts to a crime. But an ordinance that penalizes protected speech and that singles out a particular kind of speech for regulation is wrong. The city's ordinance did both.

Most of us are tired of being confronted with the human faces accompanying society's homelessness problem. And we're angry because we want to help the needy, but don't know if the panhandler will use the money for food and clothing

or for drugs and alcohol. And why isn't that seemingly able-bodied man working anyway?

And the ''message'' of the panhandlers is as complex as our reaction to it. On the one hand it is a simple entreaty for money. On the other it is a symptom of much deeper social problems. Maybe you believe that the roots of homelessness and panhandling are shortages of housing combined with the deinstitutionalization of the mentally ill. Or maybe you prefer the sociologists who say that panhandlers and many of the homeless are overestimated in their numbers and undeserving of our help. Or perhaps you have another explanation.

What is clear is that the numbers of panhandlers and homeless in public places has grown over the last decade or two. Also clear is that growth is a symptom of some deeper societal problem. And like all deep problems, this one won't go away by sweeping it under the rug.

Judge Smalkin recognized as much in saying: ''This court agrees that the message often conveyed by panhandlers -- a need for food or clothing or, more generally, the fact that our society has not found adequate solutions for the problems of our poor, homeless or disenfranchised -- is indeed troubling and unpleasant. The court has no doubt that the activity of these individuals, because of the messages that they convey, can be shocking and at times, frightening, to the tourists and visitors to the city, who perhaps do not encounter them on a regular basis where they live. The effect that protected speech has on its listener, however, cannot be [a basis for banning the speech.]''

So where does this leave all of us citizens who are daily confronted with a complex message from a complex source? First, it is OK to say ''no.'' Second, to the extent that is uncomfortable, you may choose to give a handout or work on the larger solution or both. What is not OK is to expect the government to squelch the symptoms and make the world a neat and tidy place. That ignores the larger realities and, frankly, sells our country and its traditions short.

The writer is executive director of the ACLU of Maryland.

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