James Speet v. Bill Schuette , 726 F.3d 867 ( 2013 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0226p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiffs-Appellees, -
JAMES SPEET and ERNEST SIMS,
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No. 12-2213
v.
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BILL SCHUETTE,
Defendant-Appellant. --
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:11-cv-00972—Robert J. Jonker, District Judge.
Argued: June 13, 2013
Decided and Filed: August 14, 2013
Before: MARTIN and SUTTON, Circuit Judges; ADAMS, District Judge.*
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COUNSEL
ARGUED: 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.
*
The Honorable John R. Adams, United States District Judge for the Northern District of Ohio,
sitting by designation.
1
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OPINION
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BOYCE F. MARTIN, JR., Circuit 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.
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
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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.
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We review de novo a district court’s decision to grant summary judgment. Ohio
Citizen Action v. City of Englewood, 671 F.3d 564, 569 (6th Cir. 2012) (citing Dillon v.
Cobra Power Corp., 560 F.3d 591, 595 (6th Cir. 2009)). A district court properly grants
summary judgment when “‘the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.’” Id. (quoting Estate of Smithers ex rel. Norris v. City of Flint, 602 F.3d 758,
761 (6th Cir. 2010)). Here, the “parties agree[d] that there [was] no genuine issue of
material fact regarding the facial challenge and that judgment as a matter of law [was]
appropriate.” Speet, 889 F. Supp. 2d at 972.
A facial challenge to a law’s constitutionality is an effort “to invalidate the law
in each of its applications, to take the law off the books completely.” Connection
Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir 2009) (en banc); see also Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, n.5 (1982) (“a
‘facial’ challenge . . . means a claim that the law is ‘invalid in toto—and therefore
incapable of any valid application.’” (quoting Steffel v. Thompson, 415 U.S. 452, 474
(1974))). In contrast to an as-applied challenge, which argues that a law is
unconstitutional as enforced against the plaintiffs before the court, a facial challenge “is
not an attempt to invalidate the law in a discrete setting but an effort ‘to leave nothing
standing[.]’” Connection Distributing Co., 557 F.3d at 335 (en banc) (quoting Warshak
v. United States, 532 F.3d 521, 528 (6th Cir. 2008) (en banc)). Sustaining a facial attack
to the constitutionality of a state law, as the district court did, is momentous and
consequential. It is an “exceptional remedy.” Carey v. Wolnitzek, 614 F.3d 189, 201
(6th Cir. 2010).
Generally, to “succeed in a typical facial attack,” a plaintiff must establish “‘that
no set of circumstances exists under which [the statute] would be valid.’” United States
v. Stevens, 130 S.Ct. 1577, 1587 (2010) (quoting United States v. Salerno, 481 U.S. 739,
745 (1987)). Or, a plaintiff would have to establish that “the statute lacks any ‘plainly
legitimate sweep[.]’” Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 740 n.7
No. 12-2213 Speet, et al. v. Schuette Page 5
(1997) (Stevens, J., concurring)). Here, Attorney General Schuette argues that, to
succeed in their facial attack, Speet and Sims must demonstrate that there is no
conceivable manner in which the anti-begging statute can be enforced consistent with
the First Amendment. While this is the general rule, an exception exists for facial
challenges based on the First Amendment.
Where a plaintiff makes a facial challenge under the First Amendment to a
statute’s constitutionality, the “facial challenge” is an “overbreadth challenge.”
Connection Distrib. Co., 557 F.3d at 335; see also City of Houston, Tex. v. Hill, 482 U.S.
451, 458 (1987) (“Only a statute that is substantially overbroad may be invalidated on
its face.” (citing New York v. Ferber, 458 U.S. 747, 769 (1982); Broadrick v. Oklahoma,
413 U.S. 601 (1973))). Instead of having to prove that no circumstances exist in which
the enforcement of the statute would be constitutional, the plaintiff bears a lesser burden:
“to demonstrate that a ‘substantial number of instances exist in which the law cannot be
applied constitutionally.’” Glenn v. Holder, 690 F.3d 417, 422 (6th Cir. 2012) (quoting
Richland Bookmart, Inc. v. Knox Cnty., 555 F.3d 512, 532 (6th Cir. 2009)). Thus, “[t]he
First Amendment doctrine of overbreadth is an exception to [the] normal rule regarding
the standards for facial challenges.” Virginia v. Hicks, 539 U.S. 113, 118 (2003) (citing
Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796
(1984)).
And in a facial challenge, a plaintiff must show substantial overbreadth: that the
statute prohibits “‘a substantial amount of protected speech both in an absolute sense and
relative to [the statute’s] plainly legitimate sweep[.]’” Carey v. Wolnitzek, 614 F.3d 189,
208 (6th Cir. 2010) (quoting Connection Distrib. Co., 557 F.3d at 336). We have
acknowledged that “[T]he concept of ‘substantial overbreadth’” has “some elusive
qualities[.]” Connection Distrib. Co., 557 F.3d at 340; see also Taxpayers for Vincent,
466 U.S. at 800 (“[t]he concept of ‘substantial overbreadth’ is not readily reduced to an
exact definition.”). But the doctrine of substantial overbreadth “involves an inquiry into
the ‘absolute’ nature of a law’s suppression of speech.” Connection Distrib. Co., 557
F.3d at 340. A facial challenge based on substantial overbreadth “describe[s] a
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challenge to a statute that in all its applications directly restricts protected First
Amendment activity and does not employ means narrowly tailored to serve a compelling
governmental interest.” Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S.
947, 966 n.13 (1984) (citing Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S.
620, 637–639 (1980) (rest of citation omitted)). As the Supreme Court has explained,
the point of an overbreadth challenge “is that there is no reason to limit challenges to
case-by-case ‘as applied’ challenges when the statute on its face and therefore in all its
applications falls short of constitutional demands.” Joseph H. Munson Co., Inc., 467
U.S. at 966 n.13. If we determine that a statute is substantially overbroad, we have
necessarily determined that there is “‘a realistic danger that the statute itself will
significantly compromise recognized First Amendment protections of parties not before
the Court.’” N. Y. State Club Ass’n v. City of N. Y., 487 U.S. 1, 11 (1988) (quoting
Taxpayers for Vincent, 466 U.S. at 801). To succeed in an overbreadth challenge,
therefore, a plaintiff must “demonstrate from the text of [the statute] and from actual fact
that a substantial number of instances exist in which the [statute] cannot be applied
constitutionally.” N. Y. State Club, 487 U.S. at 14.
So the first step in reviewing a facial challenge to a law’s overbreadth requires
us “‘to determine whether the enactment reaches a substantial amount of constitutionally
protected conduct.’” City of Houston, 482 U.S. at 458–59 (quoting Vill. of Hoffman
Estates, 455 U.S. at 494; Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983)). If the law
does not reach a substantial amount of constitutionally protected conduct, “then the
overbreadth challenge must fail.” Vill. of Hoffman Estates, 455 U.S. at 494. In other
words, the “first step in overbreadth analysis is to construe the challenged statute; it is
impossible to determine whether a statute reaches too far without first knowing what the
statute covers.” Williams, 553 U.S. at 293. We must scrutinize “[c]riminal statutes . . .
with particular care[.]” City of Houston, 482 U.S. at 459 (citing Winters v. New York,
333 U.S. 507, 515 (1948). Here, then, we must first determine whether the Michigan
statute reaches a substantial amount of constitutionally protected conduct or speech.
And, because it is a criminal statute, we must scrutinize the statute with particular care.
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On appeal, Attorney General Schuette argues that the anti-begging statute does
not reach any conduct or speech that the First Amendment protects. But begging, by its
very definition, encapsulates the solicitation for alms. Although neither the anti-begging
section of the statute, nor another section of the statute, defines “begging,” according to
Michigan law, “[w]hen a statute fails to define a term, we will construe it ‘according to
its common and approved usage . . . .’” Jennings v. Southwood, 521 N.W.2d 230, 237
(Mich. 1994) (quoting State ex rel. Wayne Cnty. Prosecutor v. Levenburg, 280 N.W.2d
810, 812 (1979), abrogated on other grounds by Michigan ex rel County Prosecutor v.
Bennis, 527 N.W.2d 483 (Mich. 1994)). Michigan law further provides that “resort[ing]
to the standard dictionary definition is an appropriate means of determining [a term’s]
common and approved usage.” Shinkle v. Shinkle, 663 N.W.2d 481, 485 (Mich. Ct. App.
2003) (citing Horace v.Pontiac, 575 N.W.2d 762, 767 (1998)). Here, Attorney General
Schuette resorted to a dictionary definition of begging in his opening brief, defining
begging as “soliciting alms.” The New American Heritage Dictionary 119 (5th ed.
1976). We see no reason not to use, for the purposes of this appeal, this commonsense
definition of begging as “soliciting alms.”
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 (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, and the Court
affirmed the Seventh Circuit’s upholding of the district court’s “judgment of facial
invalidity” of the ordinance. Id. at 634.
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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.
The Court has repeatedly reaffirmed Schaumburg’s holding that the First
Amendment protects charitable solicitation. In 1984, the Court observed that
Schaumburg had determined that “charitable solicitations are so intertwined with speech
that they are entitled to the protection of the First Amendment.” Joseph H. Munson Co.,
467 U.S. at 959. Then, in 1988, the Court reiterated that Schaumburg and Munson,
“teach that the solicitation of charitable contributions is protected speech[.]” Riley v.
Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 789 (1988). In 1990, in United
States v. Kokinda, 497 U.S. 720 (1990) (plurality opinion), while the Court held
constitutional, as applied, a United States Postal Service regulation prohibiting the
solicitation of alms and contributions on postal premises, the Court also stated that
“[s]olicitation is a recognized form of speech protected by the First Amendment.”
Kokinda, 497 U.S. at 725 (citing Schaumburg, 444 U.S. at 629; Riley, 487 U.S. at788–789). Thus, the First Amendment protects charitable solicitation performed by
organizations. But does the First Amendment protect the solicitation of alms when
performed by an individual not affiliated with a group? We hold that it does.
We find persuasive the Seventh Circuit’s reasoning in Gresham v. Peterson,
225 F.3d 899 (7th Cir. 2000), in which a plaintiff mounted an as-applied challenge, on
First Amendment grounds, to an Indianapolis ordinance that prohibited soliciting in
public places. The Seventh Circuit acknowledged that “the Supreme Court has not
resolved directly the constitutional limitations on [panhandling laws] as they apply to
individual beggars,” but noted that the Court “has provided clear direction on how they
apply to organized charities, not-for-profits, and political groups.” Gresham, 225 F.3d
at 903 (citing Riley, 487 U.S. at 789; Joseph H. Munson Co., 467 U.S. at 959–60;
Schaumburg, 444 U.S. at 632).
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We agree with the Seventh Circuit’s reasoning that “Shaumburg 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
Shaumburg, 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). 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). 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
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than solicitors for money.’” Id. (quoting Schaumburg, 444 U.S. at 632)). 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).
The Eleventh Circuit, in Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954,
955 (11th Cir. 1999), held that a city’s regulation proscribing begging on a certain five-
mile strip of beach and two attendant sidewalks was narrowly tailored to serve the city’s
legitimate interests. But the court began its analysis by stating that “[l]ike other
charitable solicitation, begging is speech entitled to First Amendment protection.” Id.
at 956 (footnote omitted) (citing, Loper 999 F.2d 699 at 704; Schaumburg, 444 U.S. at
632).
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). 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.No. 12-2213 Speet, et al. v. Schuette Page 11
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 (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 (citing Riley, 487 U.S. at 788–89; Schaumburg, 444 U.S. at 629) (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. 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.
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. 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.
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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).
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
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“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). 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
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.
We now consider whether Michigan’s anti-begging statute is substantially
overbroad. We will not apply the “‘strong medicine’ of overbreadth analysis where the
parties fail to describe the instances of arguable overbreadth of the contested law.”
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 n.6 (citing N.
Y. State Club, 487 U.S. at 14). The plaintiff bears “‘the burden of demonstrating . . .
substantial overbreadth.’” Connection Distrib. Co., 557 F.3d at 336 (quoting Hicks, 539
U.S. 113, 122 (2003)). A plaintiff “‘must demonstrate from the text of the statute and
from actual fact that a substantial number of instances exist in which the law cannot be
applied constitutionally.’” United States v. Coss, 677 F.3d 278, 289 (6th Cir. 2012)
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(quoting Am. Booksellers Found. for Free Expression v. Strickland, 601 F.3d 622, 627
(6th Cir. 2010)). A plaintiff may not “leverag[e] a few alleged unconstitutional
applications of the statute into a ruling invalidating the law in all of its applications.”
Connection Distrib. Co., 557 F.3d at 340. Sometimes plaintiffs have difficulty bearing
this burden. For example, in one case we said that the record was “‘utterly barren about
whether some, many, indeed any, [other people] [were] affected by . . . application of the
statute.’” Glenn, 690 F.3d at 422 (quoting Connection Distrib. Co., 557 F.3d at 338–39).
We do not have that problem here.
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.
Thus, sustaining the facial challenge in this case is appropriate because the risk
exists that, if left on the books, the statute would chill a substantial amount of activity
protected by the First Amendment. We must provide “this expansive remedy” because
“the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally
protected speech”—especially where, as here, “the overbroad statute imposes criminal
sanctions.” Hicks, 539 U.S. at 119 (citing Schaumburg, 444 U.S. at 634; Bates v. State
Bar of Ariz., 433 U.S. 350, 380 (1977); NAACP v. Button, 371 U.S. 415, 433 (1963)).
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The reason for this is that “free expression may be inhibited almost as easily by the
potential or threatened use of power as by the actual exercise of that power.” N. Y. State
Club, 487 U.S. at 11 (citing Thornhill v. Alabama, 310 U.S. 88, 97–98 (1940)). We are
concerned that “[m]any persons, rather than undertake the considerable burden (and
sometimes risk) of vindicating their rights through case-by-case litigation, will choose
simply to abstain from protected speech, harming not only themselves but society as a
whole, which is deprived of an uninhibited marketplace of ideas.” Hicks, 539 U.S. at
119 (citation omitted). Thus “[o]verbreadth adjudication, by suspending all enforcement
of an overinclusive law, reduces these social costs caused by the withholding of
protected speech.” Id. As long as “the statute remains available to the State the threat
of prosecutions of protected expression is a real and substantial one.” Dombrowski v.
Pfister, 380 U.S. 479, 494 (1965).
But “[f]acial overbreadth has not been invoked when a limiting construction has
been or could be placed on the challenged statute.” Broadrick, 413 U.S. at 613 (citing
Dombrowski, 380 U.S. at 491; Cox v. New Hampshire, 312 U.S. 569 (1941); United
States v. Thirty-Seven Photographs, 402 U.S. 363 (1971); Breard v. Alexandria, 341
U.S. 622 (1951)). Therefore, we must consider any limiting construction of the statute
that Michigan can present. Vill. of Hoffman Estates, 455 U.S. at 495 n.5 (“[i]n
evaluating a facial challenge to a state law, a federal court must, of course, consider any
limiting construction that a state court or enforcement agency has proffered.”) (citing
Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)). We need not consider a
limiting construction, however, if the statute “is not ‘fairly subject to an interpretation
which will render unnecessary or substantially modify the federal constitutional
question.’” Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 575 (1987)
(quoting Harmon v. Forssenius, 380 U.S. 528, 535 (1965)).
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. Here,
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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 panhanders’
“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 substantial governmental interests in protecting the public from
fraud, crime, and undue annoyance. Schaumburg, 444 U.S. at 636. 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 (1972) (quoting Button,
371 U.S. at 433). A state must carefully craft the statute “to punish only unprotected
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speech and not be susceptible of application to protected expression.” Gooding , 405
U.S. at 522. 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 (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 (citing Erzonznik
v. City of Jacksonville, 422 U.S. 205, 217 (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. 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.