Begging and the Right to Freedom of Expression
1.
Currently some right wing candidates in local body elections are advocating the criminalisation of begging. Does this make sense and will it help anything?
2. Pursuant to
section 14 BORA all persons have the right to freedom of expression, including
the right to seek, receive and impart information through any media, including
orally, in writing or in the form of art.
3.
As a first principle I consider that the proscription and criminalisation
of begging constitutes an infraction of the fundamental human right to freedom
of expression.
4.
Such restrictions violate the right to freedom of expression in two basic
respects. First, the proscription of begging renders peaceful verbal or written
communication unlawful. Anti-begging provisions apply whether a person adopts
passive begging techniques (such as sitting or standing in one spot with a cup,
a hat or a sign) or more active begging techniques (such as approaching
passers-by and entreating them to donate money). In each case, it is the act of
expressing a need for money, rather than the conduct associated with that
expression, that is the target of anti-begging provisions.
5. If people begging begin to directly and forcefully approach people and inhibit the movement of citizens as they walk along footpaths with aggressive demands for alms or financial assistance that can be easily controlled via bylaws. However banning the poor from seeking help from others more fortunate is overkill.
6. Anti-begging provisions infringe the right to freedom of
expression in that they proscribe the imparting (and, by extension, the
receiving) of communications regarding the way in which society treats its poor
and disenfranchised. In many cases, begging amounts to an expression of
poverty, alienation, homelessness, dislocation and the effects of inadequate
social security, public housing and public health systems. In the US, many anti-begging provisions have
been struck down or narrowed on the basis of inconsistency with the First
Amendment right to freedom of expression: see, eg, Benefit v Cambridge, 424 Mass 918 (1997) per Greaney J:
We conclude that no compelling State interest has
been demonstrated that would warrant punishing a beggar's peaceful communication
with his or her fellow citizens in a public place. (6) As one writer on the
subject has observed: "At the least, for some panhandlers, begging is a
way to augment their meager sources. For a few, it may be their only source of
income. Panhandling is therefore close to the center of the personal liberty of
some people in contemporary American society." Munzer, Response to
Ellickson on "Chronic Misconduct" in Urban Spaces: Of Panhandlers,
Bench Squatters, and Day Laborers, 32 Harv. C.R.-C.L. L. Rev. 1, 11 (1997). The statute intrudes not only on the right
of free communication, but it also implicates and suppresses an even broader
right -- the right to engage fellow human beings with the hope of receiving aid
and compassion. The streets and public areas are quintessential public
forums, not because they are a particularly convenient platform for expression,
but because they are the necessary, essential public spaces that connect our
individual private spaces, from which we legitimately may exclude others and
likewise be excluded, but from which we almost all must inevitably emerge from
time to time. If such a basic transaction as peacefully requesting or giving
casual help to the needy may be forbidden in all such places, then we may
belong to the government that regulates us and not the other way around. (7)
[emphasis added]
7.
The criminalisation of begging
denies to persons who beg a form of expression that may be necessary for
survival. It also denies the truly poor the right to impart, and society the right
to receive, information regarding poverty, inequality, structural inadequacies
and the need for urgent social reform. By silencing people who beg,
anti-begging provisions stifle debate about social policies regarding the poor.