Argued: June 13, 2013.Decided and Filed: Aug. 14, 2013.
Attorneys and Law Firms
*870ARGUED:Ann M. Sherman, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Miriam J. Aukerman, American Civil Liberties Union Fund of Michigan, Grand Rapids, Michigan, for Appellees. ON BRIEF:Ann M. Sherman, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Miriam J. Aukerman, American Civil Liberties Union Fund of Michigan, Grand Rapids, Michigan, Michael J. Steinberg, Daniel S. Korobkin, American Civil Liberties Union Fund of Michigan, Detroit, Michigan, for Appellees.
Before: MARTIN and SUTTON, Circuit Judges; ADAMS, District Judge.*
This appeal involves a facial challenge to the constitutionality, under the First and Fourteenth Amendments to the United States Constitution, of a Michigan statute that criminalizes begging. This appeal poses two issues. The first issue is whether begging is a form of solicitation that the First Amendment protects. We hold that it is. The second issue is whether, as the district court concluded, the statute violates—on its face—the First Amendment. We agree with the district court that it does. Michigan's anti-begging statute cannot withstand facial attack because it prohibits a substantial amount of solicitation, an activity that the First Amendment protects, but allows other solicitation based on content. Therefore, we AFFIRM the district court's judgment.
The Michigan anti-begging statute at issue in this case has existed since at least 1929. Mich. Comp. Laws § 900 (1929). The statute provides that “[a] person is a disorderly person if the person is any of the following: ... (h) A person found begging in a public place.” Mich. Comp. Laws Ann. § 750.167(1)(h) (West 2013). The statute criminalizes begging. A person convicted under section 750.167(1)(h) is “guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.” Mich. Comp. Laws Ann. § 750.168(1) (West 2013). According to the record, the police department in Grand Rapids, Michigan recorded four-hundred and nine reports of incidents of police enforcing this anti-begging ordinance from 2008–2011.
*871 Among those whom the Grand Rapids police arrested under the anti-begging ordinance are the plaintiffs: James Speet and Ernest Sims, two homeless adult residents of Grand Rapids, Michigan. In January 2011, Speet was arrested for begging in Grand Rapids. He was holding a sign saying: “Cold and Hungry, God Bless.” The police gave Speet an appearance ticket, and he pleaded guilty to the charge. Unable to pay the $198 fine, Speet spent four days in jail. Then, in June 2011, Speet was holding a sign that said, “Need Job, God Bless,” while standing between a sidewalk and a street in Grand Rapids. The Grand Rapids police again arrested him for begging. After Speet secured pro bono counsel, the prosecution dismissed the begging charge.
On July 4, 2011, Sims needed money for bus fare, and asked a person on the street: “Can you spare a little change?” A Grand Rapids police officer witnessed Sims asking for change and immediately arrested him. After Sims, a veteran, requested that he not be taken to jail because it was the Fourth of July, the officer agreed to give him an appearance ticket. Later, Sims appeared without counsel in court on the begging charge. He pleaded guilty and was sentenced to pay a fine of $100. Speet and Sims are not the only people that have been fined or jailed under Michigan's anti-begging statute. The Grand Rapids Police Department, during 2008–2011, initiated three-hundred and ninety-nine cases by arresting or citing people for begging.
Speet and Sims sued Michigan Attorney General Bill Schuette, the City of Grand Rapids, and several of its police officers for declaratory and injunctive relief, alleging that Michigan's anti-begging statute violated—both facially and as applied—the First Amendment and the Fourteenth Amendment's Equal Protection Clause.
The complaint's first count asserted that Michigan's anti-begging law was “facially invalid under the First Amendment[;]” likewise, the complaint's third count asserted that Michigan's anti-begging law was “facially invalid under the Equal Protection Clause.” The complaint's second and fourth counts asserted that the statute violated the First and Fourteenth Amendments “as applied” to Speet and Sims.
Instead of moving for summary judgment on the as-applied claims, Speet and Sims moved for summary judgment on the facial claims. Speet v. Schuette, 889 F.Supp.2d 969, 972 (W.D.Mich.2012). Michigan also moved for summary judgment on these claims. Id. In a published opinion and order, the district court granted Speet's and Sims' motion for partial summary judgment. Id. at 980. Michigan Attorney General Bill Schuette filed a timely appeal.
While the United States Supreme Court has not, as Michigan correctly points out in its briefs, directly decided the question of whether the First Amendment protects soliciting alms when done by an individual, the Court has held—repeatedly—that the First Amendment protects charitable solicitation performed by organizations.
In Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 622, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), the Court addressed the validity, under the First and Fourteenth Amendments, of a municipal ordinance that prohibited charitable organizations from soliciting contributions unless they used at least seventy-five percent of their receipts for what the ordinance defined as charitable purposes. The plaintiffs challenged “the facial validity of the village ordinance on First Amendment grounds,” id. at 627, 100 S.Ct. 826, and the Court affirmed the Seventh Circuit's upholding of the district court's “judgment of facial invalidity” of the ordinance. Id. at 634, 100 S.Ct. 826.
After summarizing its relevant cases, the Court held that its “[p]rior authorities, therefore, clearly establish that charitable appeals for funds, on the street or door to door, involve a variety of speech interests—communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes—that are within the protection of the First Amendment.” Id. at 632, 100 S.Ct. 826.
We agree with the Seventh Circuit's reasoning that “Schaumburg provides the appropriate standard to analyze” whether the First Amendment protects begging. Gresham, 225 F.3d at 904–05.Gresham analogized panhandlers to the charity in Schaumburg, saying that “[l]ike the organized charities, [the panhandlers'] messages cannot always be easily separated from their need for money.” Id. at 904. The Gresham panel concluded by saying that “[w]hile some communities might wish for all solicitors, beggars and advocates of various causes be vanished from the streets, the First Amendment guarantees their right to be there, deliver their pitch and ask for support.” Id. (citing Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). We further agree with Gresham's observation that “[i]ndeed, the Court's analysis in Schaumburg suggests little reason to distinguish between beggars and charities in terms of the First Amendment protection for their speech.” Id.
Our sister circuits—the Second, Eleventh, and Fourth Circuits—in cases decided before and after Gresham, have similarly held that begging is a type of solicitation protected by the First Amendment. We find these cases to be persuasive authority, as well, for our holding that begging is a form of solicitation that the First Amendment protects.
The Second Circuit, in Loper v. New York City Police Department, 999 F.2d 699, 706 (2d Cir.1993), affirmed the district court's judgment that had declared unconstitutional, on First Amendment grounds, a state statute which stated that “[a] person is guilty of loitering when he: 1.[l]oiters, remains or wanders about in a public place for the purpose of begging....” N.Y. Penal Law § 240.35(1) (McKinney 1989). Loper, like Gresham, relied on Schaumburg's holding that “ ‘charitable appeals for funds, on the street or door to door, involve a variety of speech interests—communication of information, the dissemination and propagation of view and ideas, and the advocacy of causes—that are within the protection of the First Amendment.’ ” Loper, 999 F.2d at 704 (quoting Schaumburg, 444 U.S. at 632, 100 S.Ct. 826).Loper explained that “[i]nherent in all the charitable solicitation cases revolving around the First Amendment is the concept that ‘[c]anvassers in such contexts are necessarily more than solicitors for money.’ ” Id. (quoting Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). The Loper panel explained that “[b]egging frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation.” Loper, 999 F.2d at 704. It concluded that[,] “in regard to the message conveyed,” it saw “little difference between those who solicit for organized charities and those who solicit for themselves[,]” because those who solicit for organized charities “are communicating the needs of others[,]” while those who solicit for themselves “are communicating their personal needs.” Id. According to the Loper panel, “[b]oth solicit the charity of others. The distinction is not a significant one for First Amendment purposes.” Id. (citation omitted).
This year, the Fourth Circuit, in Clatterbuck v. City of Charlottesville, 708 F.3d 549, 551 (4th Cir.2013), addressed the question of whether a municipal ordinance, that prohibited people from soliciting immediate donations in two streets near a downtown shopping area, unconstitutionally restricted the free speech of individuals who regularly begged there. The court noted, “[a]s a preliminary matter,” that “the speech and expressive conduct that comprise begging merit First Amendment protection.” Id. at 553. The court observed that the United States Supreme Court has “held that the solicitation of ‘charitable contributions' is protected speech.” Id. (quoting Riley, 487 U.S. at 789, 108 S.Ct. 2667). The court also observed that several other United States Courts of Appeals had “extended that holding to begging, which is simply solicitation on behalf of the speaker.” Id. (citing Smith 177 F.3d at 956;Loper, 999 F.2d at 704). The court concluded by stating “[w]e agree that begging is communicative activity within the protection of the First Amendment.” Id.
Michigan relies on several authorities to argue that the First Amendment does not protect begging, or soliciting alms—but we find not one of these authorities persuasive. First, Michigan cites Part II of Justice Kennedy's concurrence in International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 703, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) (plurality opinion). In Part II of his concurrence, Justice Kennedy stated that he was “in full agreement with the statement of the Court that solicitation is a form of protected speech.” Lee, 505 U.S. at 704, 112 S.Ct. 2701 (citing Riley, 487 U.S. at 788–89, 108 S.Ct. 2667;Schaumburg, 444 U.S. at 629, 100 S.Ct. 826) (rest of citation omitted). But Justice Kennedy argued that an airport regulation that prohibited solicitation for the immediate payment of funds did not violate the First Amendment because the regulation “reache[d] only personal solicitations for immediate payment of money.” Lee, 505 U.S. at 704, 112 S.Ct. 2701. Justice Kennedy hypothesized that, had the regulation “prohibited all speech that requested the contribution of funds,” then he “would [have] conclude[d] that it was a direct, content-based restriction of speech in clear violation of the First Amendment.” Id. But, Justice Kennedy wrote, the “regulation d[id] not prohibit all solicitation[;]” rather, “it prohibit[ed] the ‘solicitation and receipt of funds.’ ” Id. Justice Kennedy characterized the restriction as “directed only at the physical exchange of money, which is an element of conduct interwoven with otherwise expressive solicitation.” Id. at 705, 112 S.Ct. 2701.
We decline to follow the reasoning in Part II of Justice Kennedy's concurrence in Lee for three reasons. First, to the extent that Part II of Justice Kennedy's concurrence argues that the “physical exchange of money” may be isolated from the act of solicitation, it runs contrary to Schaumburg's holding that solicitation of charitable donations is “characteristically intertwined with informative and perhaps persuasive speech[.]” Schaumburg, 444 U.S. at 632, 100 S.Ct. 826.Schaumburg does not suggest that the physical exchange of money may be isolated; it is “intertwined” with speech that the First Amendment protects. Second, Part II of Justice Kennedy's concurrence is not Lee's holding. And third, Justice Kennedy wrote Part II without another Justice joining him.
*877 Michigan also cites the Second Circuit's decision in Young v. New York City Transit Authority, 903 F.2d 146 (2d Cir.1990), as authority for the proposition that the First Amendment does not protect begging. Young initially framed the issue as “whether the prohibition of begging and panhandling in the New York City subway system violate[d] the First Amendment of the United States Constitution.” Young, 903 F.2d at 147 (footnote omitted). The regulation provided that “ ‘no person, unless duly authorized ... shall upon any facility or conveyance ... solicit alms, subscription or contribution for any purpose.’ ” Id. at 148 (quoting N.Y. Comp.Codes R. & Regs. tit. 21, § 1050.6(b) (1989)). The Second Circuit opined that “[c]ommon sense” dictates that “begging is much more ‘conduct’ than it is ‘speech.’ ” Id. at 153. Therefore, the court reframed the issue as “whether begging constitutes the kind of ‘expressive conduct’ protected to some extent by the First Amendment.” Id.
Young read Schaumburg's holding to be limited to appeals by organized charities; only these solicitations involve a variety of speech interests including communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes. Id. at 155. Young asserted that “neither Schaumburg nor its progeny stand for the proposition that begging and panhandling are protected speech under the First Amendment.” Id. Rather, the court said, Schaumburg, Munson and Riley “hold that there is a sufficient nexus between solicitation by organized charities and a ‘variety of speech interests' to invoke protection under the First Amendment.” Id.Young displayed the panel's distaste for begging, writing that “[w]hile organized charities serve community interests by enhancing communication and disseminating ideas, the conduct of begging and panhandling in the subway amounts to nothing less than a menace to the common good.” Young, 903 F.2d at 156 (citing Taxpayers for Vincent, 466 U.S. at 805, 104 S.Ct. 2118).
We decline to follow the Young majority's reasoning. We find more persuasive Young's dissent, which held that there is no “legally justifiable distinction” between “begging for one's self and solicitation by organized charities.” Young, 903 F.2d at 164 (Meskill, J., dissenting). The dissent read Schaumburg—as we do—as holding that “charitable solicitation is protected because it ‘is characteristically intertwined with ... speech seeking support for particular causes or for particular views on economic, political, or social issues.’ ” Id. at 165 (quoting Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). We agree with the dissent's statement that Schaumburg “held that First Amendment protection attaches to all charitable solicitation, whether or not any speech incident to the solicitation actually takes place, because a sufficient nexus exists between a charity's expression of ideas and its fundraising.” Id. We further agree with the dissent's conclusion that “if First Amendment protection extends to charitable solicitation unaccompanied by speech, as it apparently does, it must extend to begging as well.” Id. And we agree that “begging is indistinguishable from charitable solicitation for First Amendment purposes. To hold otherwise would mean that an individual's plight is worthy of less protection in the eyes of the law than the interests addressed by an organized group.” Id. at 167.
Moreover, Loper overruled Young's holding that begging is not conduct that communicates. Loper stated that “[w]hile we indicated in Young that begging does not always involve the transmission of a particularized social or political message, see Young, 903 F.2d at 153, it seems certain that it usually involves some communication *878 of that nature.” Loper, 999 F.2d at 704.
Based on the foregoing discussion, we hold that begging, or the soliciting of alms, is a form of solicitation that the First Amendment protects.
The record shows that the statute reaches a substantial amount of begging, which we have held that the First Amendment protects because it is a form of solicitation. Instead of a few instances of alleged unconstitutional applications, we have hundreds. The Grand Rapids Police Department produced four hundred nine incident reports related to its enforcement of the anti-begging statute. Thirty-eight percent of the people that the police stopped were holding signs requesting help, containing messages like “Homeless and Hungry: Need Work,” “Homeless Please Help God Bless,” “Lost My Job Need Help,” and “Homeless and Hungry Vet.” The other sixty-two percent of the stops (two hundred fifty-five instances) involved people verbally soliciting charity. In forty-three percent of the cases, the police immediately arrested the people who were begging. In two hundred eleven cases, people convicted of begging were sentenced directly to jail time. The record in this case bolsters our “judicial prediction” that “the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612, 93 S.Ct. 2908.
Here, we cannot read the statute to limit its constitutional effect. The statute simply bans an entire category of activity that the First Amendment protects.
We acknowledge that the statute serves “a sufficiently strong, subordinating interest that [Michigan] is entitled to protect.” Schaumburg, 444 U.S. at 636, 100 S.Ct. 826. Here, Attorney General Schuette argues that Michigan's interest is in preventing fraud. He argues that not all those who beg are homeless and destitute, nor do all those who beg use the funds they receive from begging to meet basic needs. Instead, those who beg often spend that money on alcohol. The record contains an affidavit of an executive director of an agency that works with the homeless as saying that “the great majority of people panhandling for money are using the money for alcohol and drugs.” Furthermore, panhandlers who display signs saying that they are homeless often are not. Rather, they use the signs “to elicit sympathy and money, often to feed a drug or alcohol problem.” Even the United States Department of Justice has recognized “[t]his potential for fraud” and has put out a publication on panhandling which states that “some panhandlers pretend to be disabled and/or war veterans,” and that the panhandlers' “primary purpose is to immediately buy alcohol or drugs.” Attorney General Schuette also argues that the ordinance prevents duress.
We agree with Attorney General Schuette that the prevention of fraud and duress are substantial state interests. In Schaumburg, the Village argued that its ordinance was intimately related to the *880 substantial governmental interests in protecting the public from fraud, crime, and undue annoyance. Schaumburg, 444 U.S. at 636, 100 S.Ct. 826. The Court noted that, like here, “[p]revention of fraud [was] the Village's principal justification” for the ordinance. Id. The Court declared that, while these interests were substantial, they were “only peripherally promoted” by the ordinance and “could be sufficiently served by measures less destructive of First Amendment interests.” Id. The Court said, “[t]he Village's legitimate interest in preventing fraud can be better served by measures less intrusive than a direct prohibition on solicitation.” Id.
Michigan's interest in preventing fraud can be better served by a statute that, instead of directly prohibiting begging, is more narrowly tailored to the specific conduct, such as fraud, that Michigan seeks to prohibit. Indeed, “ ‘[b]ecause First Amendment freedoms need breathing space to survive,’ ” a state “ ‘may regulate in the area only with narrow specificity.’ ” Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (quoting Button, 371 U.S. at 433, 83 S.Ct. 328). A state must carefully craft the statute “to punish only unprotected speech and not be susceptible of application to protected expression.” Gooding, 405 U.S. at 522, 92 S.Ct. 1103. As the Supreme Court has warned, “statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” Broadrick, 413 U.S. at 611–12, 93 S.Ct. 2908 (citations omitted). Where, as here, “the statute unquestionably attaches sanctions to protected conduct, the likelihood that the statute will deter that conduct is ordinarily sufficiently great to justify an overbreadth attack.” Taxpayers for Vincent, 466 U.S. at 800 n. 19, 104 S.Ct. 2118 (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 217, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)). Michigan may regulate begging. As the Supreme Court has said, “[s]oliciting financial support is undoubtedly subject to reasonable regulation [.]” Schaumburg, 444 U.S. at 632, 100 S.Ct. 826. But Michigan must regulate begging “with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues[.]” Id.
Because the anti-begging ordinance violates the First Amendment in banning a substantial amount of activity that the First Amendment protects, we AFFIRM the district court's judgment. We need not, and so do not, consider whether the ordinance violates the Fourteenth Amendment.