A Philosopher's Blog

Panhandling & Free Expression

Posted in Business, Ethics, Philosophy, Politics by Michael LaBossiere on May 24, 2017
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Many local officials tend to believe that panhandlers are detrimental to local businesses and tourism and, as such, it is no surprise that there have been many efforts to ban begging. While local governments keep trying to craft laws to pass constitutional muster, their efforts have generally proven futile in the face of the First Amendment. While the legal questions are addressed by courts, there remains the moral question of whether the banning of panhandling can be morally justified.

The obvious starting point for a moral argument for banning panhandling is a utilitarian approach. As noted above, local officials generally want to have such bans because they believe panhandlers can be bad for local businesses and tourism in general. For example, if potential customers are accosted by scruffy and unwashed panhandlers on the streets around businesses, then they are less likely to patronize those businesses. As another example, if a city gets a reputation for being awash in beggars who annoy tourists with their pleas for cash, then tourism is likely to decline. From the perspective of the business owners and the local officials, these effects would have negative value that would outweigh the benefits to the panhandlers of being able to ask for money. There is presumably also utility in encouraging panhandlers to move away to other locations, thus removing the financial and social cost of having panhandlers. If this utilitarian calculation is accurate, then banning panhandling would be morally acceptable. Of course, if the calculation is not correct and such a ban would do more harm than good, then the ban would be morally wrong.

A second utilitarian argument is the safety argument. While panhandlers generally do not engage in violence (they, after all, are asking for money and not trying to rob people), it has been claimed that they do present a safety risk. The standard concern is that by panhandling in or near traffic, they put themselves and others in danger. If this is true, then banning panhandling would be the right thing to do.  If, however, the alleged harm does not justify the ban, then it would be morally unacceptable.

There is also the obvious reply that any safety concerns could be addressed by having laws that forbid people from obstructing the flow of traffic and being a danger to themselves and others. Presumably many such laws exist in various localities. There is also the concern that the safety argument would need to be applied consistently to all such allegedly risky behavior around traffic, such as people engaging in political campaigns or street side advertising.

It is also easy enough to advance a utilitarian argument in favor of panhandling that is based on the harm that could be done by restricting the panhandlers’ freedom of expression and activity. Following Mill’s classic argument, as long as panhandlers are not harming people with their panhandling, then it would be wrong to limit their freedom to engage in this behavior. This is on the condition that the panhandling is, at worst, merely annoying and does not involve threatening behavior or harassment.

It could be objected that panhandling does cause harm—as noted above, the presence of panhandlers could harm local businesses. People can also regard panhandling as an infringement on their freedom to not be bothered in public. While this does have some appeal, this justification of a panhandling ban would also justify banning any public behavior people found annoying or that had some perceived impact on local businesses. This could include public displays of expression, political campaigning, preaching in public and many other behaviors that should not be banned. In short, the problem is that there is not something distinct enough to panhandling that would allow it to be banned without also justifying the ban of other activities. To simply ban it because it is panhandling would seem to solve this problem, but would not. After all, if an activity can be justly banned because it is that activity, then this would apply to any activity. After all, every activity is the activity it is.

Those who prefer an alternative to utilitarian calculations can easily defend panhandling against proposed bans by appealing to a right of free expression and behavior that is not based on utility. If people do have the moral right to free expression, then reasons would need to be advanced that would be strong enough to warrant violating this right. As noted above, an appeal could be made to the rights of businesses and the rights of other people to avoid being annoyed. However, the right to not be annoyed does not seem to trump the right of expression until the annoyance becomes significant. As such, a panhandler does have the right to annoy a person by asking for money, but if it crosses over into actual harassment, then this would be handled by the fact that people do not have a right to harassment.

In the case of businesses, while they do have a right to engage in free commerce, they do not have a right to expect people to behave in ways that are conducive to their business. If, for example, people found it offensive to have runners running downtown and decided to take their business elsewhere, this would not warrant a runner ban. But, if runners were blocking access to the businesses by running around the entrances, then the owners’ rights would be being violated. Likewise, if panhandlers are disliked by people and they decide to take their business elsewhere, this does not violate the rights of the businesses. But, if panhandlers started harassing people and blocking access to the businesses, then this would violate the rights of the owners.

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6 Responses

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  1. DH said, on May 24, 2017 at 12:23 pm

    This is an interesting topic, one that I think deserves greater scrutiny.

    While I find your arguments compelling, in my view there is a disconnect among them. I did major in philosophy for a time in school, but that was a long time ago – and I would enjoy a debate with you on some of these points in the spirit of ideological exchange and for my own education as well.

    The disconnect I see lies in in the confluence you present among a “moral” argument, a “utilitarian” argument, and a “constitutional” argument. When you state that the “…starting point for a moral argument …is a utilitarian approach”, I would probably leave off the word “moral”. Utilitarianism, as defined by Mill and Bentham, argue the “Greatest Good” principle; where actions that provide the greatest good for the greatest number of people are justifiable in a pragmatic, practical sense.

    Panhandling is not that. Panhandling or begging, in a general sense, not only impedes businesses and tourism, but diminishes the quality of life for citizens who pay taxes to their community in order to provide clean streets that are free of crime and fear of harassment, that not only allow businesses to ply their trade, but allow the population to freely enjoy patronizing those businesses, which contributes to a healthy economy that is to everyone’s benefit. If the panhandlers are in public places like parks, they potentially diminish the enjoyment of those places for the taxpayers who have worked and paid to have them built and maintained.

    Applying utilitarian principles to this model, it is easy to conclude that the laws protecting the rights of the panhandler do NOT provide for the “greatest good”, in fact, quite the opposite. Local laws that protect the rights of panhandlers provide for the good of ONE citizen, at the expense of the many.

    “People can also regard panhandling as an infringement on their freedom not too be bothered in public … justification of a panhandling ban would also justify banning any public behavior people found annoying …”

    On the face of it, this appears to be an attempt at a “reduction ad absurdum” argument, but the fact is that it is true – and it does happen. There are local ordinances requiring people to pick up after their dogs, for example – even though, in a park setting, animal excrement is a pretty good fertilizer. The fact that its presence is annoying to a majority of people is enough, under utilitarian principles, to require that the minority of dog-owners pick up after their dogs. Other activities, such as the ones you mention – political campaigning or preaching in public – are often regulated by statute, requiring permits that identify where, when, and for how long these activities may take place. Parades and demonstrations all require such permits, and are issues based on balancing the needs and rights of the few against the greater good of the many.

    The argument is valid – that when we make a law about a specific issue, we must test the law against other issues that are conceptually the same, to make sure that it applies even to issues we agree or disagree with. Lawyers, lawmakers, judges and justices deal with this all the time.

    The Supreme Court did rule in favor of panhandling under a narrow ruling, but their ruling only addresses one aspect of the situation – whether or not panhandling is a constitutionally protected activity under the First Amendment. In the many arguments presented to the Court on this issue, much of the opinion has been focused on the conduct versus the content of the activity. One argument says that the constitutional protection of free speech extends to the expression of ideas alone, and not the behavior used to express those ideas. This is the dissenting opinion that you linked in your post, which also makes the claim that the original dissenting opinion was misunderstood or misinterpreted – either inadvertently or on purpose for political ends. Planting oneself on a street corner, in front of a business, or in a park asking for money is not an expression of an idea, it is a behavior.

    In comparison, there is a much better argument to be made for the constitutional protection of the preachers and politicians who might occupy the same spaces. In fact, if you were to make a sign and go to the spot where a panhandler was plying his trade, and publicly and vocally defend his right to hang around and ask for money – your actions would be far more easily defensible under the First Amendment than his.
    I would also argue that if the person pictured at the top of your post had a sign that read, “Society Has a Moral Obligation to Care for the Indigent” instead of “Young Teen Needs Help”, there would be a more clear case for First Amendment constitutional support.

    The moral argument, in this case, I believe is more of an expression of Christian morality, or even the categorical imperative of Kant – that we are obligated in a greater sense (by God, presumably) to act in a way that provides for the least of us. One such expression of Christian morality is that materialism and economism are an evil to be avoided, and the sight of a poor beggar in the street triggers a guilty conscience and a sense of obligation to let the poor man be, and to give him the money he asks for.

    Of course, there is also the moral argument that arises from the adage, “Give a man a fish, he is hungry again in an hour – teach a man to fish and you have done a good turn”. In this analysis, the actions of a government allowing a panhandler to persist is patently non-utilitarian – it does the least amount of good for the greatest number of people. The panhandler is enabled rather than helped, and the people and businesses of the community are persistently inconvenienced. If, as Kant and others suggest, we have a moral obligation to help the poor, don’t we also have a moral obligation to make sure that our actions are actually helpful, and not merely palliative? Would denying this individual the “right” to beg for money in a public place actually force him to seek ways of becoming self-sufficient in a less obtrusive way, providing for a better good for both the individual AND the many?

    As an ideology, the Left seems to embrace this tenet of Christian morality – that the measure of a society is how we treat the lowliest members of that society. The larger argument revolves around entitlements – unemployment compensation, Welfare, Medicaid – the basis of these arguments being about giving fish rather than teaching fishing. It has long been argued by the right that these entitlements discourage self-sufficiency and create more dependence. If those arguments are correct, then the actions of government are anti-utilitarian in a very big way.

    I don’t agree with the Supreme Court ruling, which is my right as an American. My layman’s interpretation of the Constitution falls on the side of the free expression of ideas and ideologies, not as a protection of behavior. I think that as a society we must find a balance between utilitarianism and a categorical imperative – that as a state we must create laws that do provide for the greatest good for the greatest number, but as moral human beings we must make sure that the least of us is provided for, but that our charity is actually helpful and does not merely enable the recipient and assuage our guilt.

    Get rid of the panhandlers, but help them to find a way to help themselves.

  2. ajmacdonaldjr said, on May 24, 2017 at 2:00 pm

    Many cities have passed laws against panhandlers harassing people (= aggressive panhandling), which is, I think, a good idea.

    • TJB said, on May 24, 2017 at 6:02 pm

      Agree. As long as the panhandler does not harass or intimidate. What should be banned, however, is the kid who wipes your windshield with a dirty rag and “charges” you for the unwanted service.

    • Michael LaBossiere said, on May 25, 2017 at 11:06 am

      I would certainly agree that harassing people to “ask” them for money does violate the rights of the person being harassed and it is reasonable to ban that behavior.

  3. Anonymous said, on May 24, 2017 at 2:57 pm

    I agree; I also think that this kind of ordinance is definitely based in the utilitarian (“Greatest Good”) principle, and has no business being regarded as a constitutional free speech issue.

    A case can certainly be made that if a city passes an ordinance that denies these people their “livelihood” there is a moral obligation to help them help themselves, but First Amendment rights? I don’t think so.

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