Wednesday, May 30, 2007

Loitering Is Free Speech

A Supreme Court decision in 1992 deemed loitering and begging a right provided for in the first amendment of the bill of rights. Despite that ruling, hundreds of the less fortunate among us have been arrested for their (in)activity. Eric Hoffstead is now fighting his arrest and his lawyer, Carl D. Birman and now Matthew D. Brinckerhoff are trying to turn the case into a class-action suit. Nearly 800 summons have been issued from June of 2005 to February of 2007, using considerable city resources in order to do so.

From The New York Times:

The United States Supreme Court has struck down several loitering statutes, but it has never considered the particular issue of loitering for the purpose of begging, and whether prohibiting it constitutes a violation of the First Amendment, said Michael C. Dorf, professor of constitutional law at the Columbia University School of Law.

In upholding the 1992 New York City case, the United States Court of Appeals for the Second Circuit said begging constituted “protected communicative conduct, and city streets and parks were classified as a traditional public forum.”

“A lawyer is certainly entitled to make the argument that the lower federal courts have ruled the law unconstitutional and tell the state it should be persuaded by this ruling,” Professor Dorf said. “The state, however, is free to issue a decision based on its own interpretation of the Constitution.”


So even with the U.S. Supreme Court decision, the matter is up in the air here in New York. The state contends that these misdemeanors are often accompanied by other crimes, such as Mr. Hoffstead having possessed a crack cocaine pipe at the time.

Instead of using this as an excuse to put the homeless in jail, the situation is evidence that the problem of loitering and begging needs to be dealt with in a more productive manner. It has often been shown that treating and rehabilitating the thousands of people on the streets is more cost efficient from a budgetary perspective. More importantly, it is better from a humanitarian perspective.