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IS BEGGING FREE SPEECH? THE 'YES' OF FEDERAL JUDGE SHOULD BE EXPLORED

A FEDERAL JUDGE in Manhattan, Leonard B. Sand, has provoked an understandable stir by tossing out a ban against begging in the New York subways. In his view, it violated the constitutional free-speech rights of the panhandlers.

The decision carries potentially large consequences. It is the first time any federal judge has clothed the process of begging in the free-speech protections of the First Amendment to the U.S. Constitution.

Most of the attention paid to the ruling concerns the nullified regulations of the Metropolitan Transportation Authority.

Yet at least as important, Sand also voided a New York State statute that outlawed loitering for the purpose of begging. His decisions could call into question similar laws that bar or restrict begging in roughly half of the 50 states.

Sand reasoned that begging, although often disturbing or even offensive, "is unmistakenly informative and persuasive speech." This deserves constitutional protection. Moreover, he wrote, a "true test of one's commitment to constitutional principles is the extent to which recognition is given to the rights of those in our midst who are the least affluent, least powerful and least welcome."

In other words, such basic protections must apply to the weak or despised as well as the powerful and popular.

There is a lot to that. No American would long support laws that made it totally illegal, under all circumstances and times, for hungry or cold or homeless people to even ask a passerby for money. Growth in the numbers of homeless people on city streets, whatever the reason, has made begging more prevalent. That growth, however, should not diminish the core liberties of each individual.

On the other hand, there are and can be limits and distinctions here. Is begging truly speech or is it conduct? Under the Constitution, conduct can be much more heavily regulated than speech.

There are social agencies, public and private, to which those in need can turn. Panhandlers can become so numerous or so aggressive, or both, as to congest subways or public walkways -- or even intimidate those who use them.

Sand counters that other laws protect the public against such abuses. And his comment that it "is the total prohibition of all begging on all facilities which is constitutionally impermissible" strongly suggests that a more clearly defined, selective prohibition might not offend constitutional rights.

This issue is too fundamental to stand on any one judge's interpretation alone. The question ought to be tested in a legal appeal to higher courts.

Meanwhile, though, government officials ought to explore where the permissible distinctions can and should be drawn by law.

What Sand's ruling reminds everyone is that those legal lines must be carefully drawn in order to fairly balance the varied interests of the general public and its institutions -- as well as those unfortunate individuals whose impoverished circumstances drive them to beg for money from strangers passing by.

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