Asheville made the national news wires this weekend with its recent passage of a city ordinance against “aggressive panhandling.” Strip away all the political rhetoric and the sudden rediscovery of the homelessness crisis in America – as my former Reason colleague James Taranto of The Wall Street Journal has dutifully noted, such talk began right around the inauguration of President Bush – and you have an interesting debate about whether someone has the right to beg on a city street.
Free speech issues are often cluttered up with lots of extraneous argumentation. So many controversies end up being about the wrong issues, when the right ones usually have something to do with property rights, without which the freedom of speech is incoherent.
For example, there is a case before the U.S. Supreme Court that’s gotten a lot of attention. It’s about cross burning. Is this vile practice a “hate crime” or an exercise in constitutionally protected speech? That’s what legal commentators have been asking. That’s the wrong question. The right one is: whose lawn was the cross on? If a racist burns a cross on his own lawn, he’s an idiot. If he burns a cross on another person’s lawn, he’s a vandal and possibly guilty of other crimes, such as communicating a threat. He’s not a criminal because he chose a particularly egregious way of expressing his Neanderthal ideas. He’s a criminal because he did so on someone else’s property.
The same confusion surrounds the famous assertion that “free speech doesn’t mean you have the right to yell ‘fire’ in a crowded theater.” While this sounds like a way of weighing freedoms and responsibilities, it’s really a huge distraction. Think about it for a second. Do you really have the right to yell ‘fire’ in an empty theater? Do you have the right to yell anything in a theater? Of course not, unless it is yours. There is virtually never a conflict between free speech and some other value on private property, as it is the owner of the property that decides what is permissible to say or discuss while on it.
The conflict does exist on “public property,” which in theory is owned by everyone but in practice is owned by no one. Strictly speaking, there is no unadulterated “right to do anything on public property. City streets and other government-controlled places exist for particular purposes, yet we have historically viewed them as a “commons” where people might have a limited right to do other things – protest, parade, etc. – subject to time, place, and manner restrictions so as to protect the rights of others to do the same or to use the property for its primary function.
So, to address the issue I started with, there is no fundamental right to beg, aggressively or not, on a city-owned street or walkway, or in a city park. As a prudential matter, we might want to permit some kinds of activity like that, but only if it does not result in the significant diminution of others’ right to traverse or enjoy the property as intended. The First Amendment was never intended to allow folks to extend their sovereignty over other people’s stuff. It was intended as a way to keep the government from interfering with our rights as private individuals to engage in discourse about whatever we want. Basically, you can say whatever you want on your own property. I’ll let you speak, in non-profane ways, about pretty much anything you want on my property, unless you start harping on arguments that annoy me, like Harry Potter’s secret pact with the Devil or why baseball is America’s greatest gift to the world (I certainly hope not).
And if you come up to me on the street and ask for change, I’m probably going to say no. Here’s some advice: don’t ask again, even if we’re not in Asheville.