23 September 2007

Expressive liberty

When freedom is outlawed only outlaws will be free.

Having just written a post on homelessness in Canada I was very interested to come across The expressive liberty of beggars, a new study released by the Canadian Centre for Policy Analysis, which claims that restrictions on peaceful panhandling, such as those found in the bylaws of many cities, constitute an illegitimate use of state power.

The 28-page paper, by Arthur Shafer, director of the Centre for Professional and Applied Ethics at the University of Manitoba, says there is no moral or legal justification for turning peaceful beggars into criminals. Shafer does not fail to connect the dots between poverty, homelessness and health. "Panhandlers communicate — whether through speech or via an outstretched hand and raggedy appearance — a message about dire poverty, unemployment, substance abuse, mental illness, and homelessness" (p. 9). More poignant than any manifesto, the visible presence of the poor and homeless defines the issues and demands that things must change. For more information, see the CCPA press release.

Here is the introduction:
It is morally perplexing that in 21st century Canada it could be a punishable offence for one person to say to another, peacefully, in a public place, “I’m in trouble and need help.” Yet that is the effect of City of Winnipeg Bylaw No. 128/2005. Other Canadian and American cities have enacted similar legislation, and a fast-growing body of jurisprudence in both Canada and America testifies to the fact that the criminalization of panhandling has become a kind of battleground. On this battleground, a clash occurs between competing values: social “hygiene” vs. freedom of expression; middle class discomfort vs. underclass economic need; commercial interest of downtown business owners vs. beggars’ right to plead for subsistence.

Of course, if a panhandler’s request for help were made in an aggressive or intimidating manner, then liberty-limiting legislation would be much less controversial. In Canada, the Criminal Code expressly prohibits demanding money with menaces. This prohibition, backed by sanctions, would be accepted by most people as a proper use of coercive state power.

The essence of the argument advanced in this report will be that restrictions of peaceful panhandling constitute an illegitimate use of state power.

Put simply, my contention is that peaceful beggars should not be turned into criminals. That’s because non-aggressive begging involves the kind of expressive communication between people that a free and democratic society should seek to protect rather than restrict. Freedom of expression is a fundamental human right — one that should be infringed only in exceptional circumstances. It follows that any law which restricts the expressive liberty of beggars should be viewed prima facie as a violation of human rights.

There is a substantial body of empirical evidence in support of the intuitively obvious hypothesis that beggars are a seriously marginalized group in our society: almost always poor and frequently homeless, often suffering from extremely poor health, mental illness, and alcohol or drug addictions, with few social supports and even fewer opportunities to make their plight known to their fellow citizens. For this reason, it is comparatively easy to adopt a “we/they” perspective on issues involving panhandlers — a perspective in which “we’ are the legitimate members of society while “they” are little better than social outcasts. Quite simply, this perspective is not ethically defensible. Panhandlers have as much right as middle-class citizens to dignified treatment. The very sub-title of this paper, with its sharp dichotomy between “them” and “us,” runs the risk of conveying, inadvertently, the message that beggars are mere specimens, pinned and wriggling on a hook, rather than participants in the project we call building Canadian society.

If members of the underclass are not recognized as having an important contribution to make to the formation of public opinion, then not only are they robbed of a basic right of citizenship, but everyone else in society is also robbed of potentially important information. Some would argue that the very poor have an especially important contribution to make to the so-called free marketplace of ideas. Critical scrutiny of ideas is an enterprise that requires the widest possible contribution from those with differing experiences and alternative perspectives. When the expressive liberty of the poor and homeless is censored, excluded, or otherwise marginalized, then the advancement of knowledge for everyone is prejudicially affected.
Autonomous citizens should not easily settle for such a limitation on their ability to formulate for themselves their view on such matters.

Indeed, the beggar’s generally downtrodden position in society makes a denial of his expressive liberty especially problematical. Since the free marketplace of ideas (like the free marketplace of commodities) tends to produce massive inequalities in access to expressive forums, special heed must be paid to the expressive needs of those who cannot easily make their voices heard. A liberal democratic society which values the rational autonomy of all its members must work diligently to protect norms of mutual recognition and respect in communication.

It is also worth noting that in Canada panhandlers tend to be recruited, disproportionately, from First Nations’ communities and from the ranks of other visible minorities. In consequence of the racial and other prejudice still widespread in Canadian society, it is common for members of these communities to have suffered serious discrimination in education, housing, employment, and other spheres of life. Drastic inequalities in life opportunities for First Nations people and visible minorities constitute an important part of the setting within which the great Canadian panhandling debate is currently being played out.

Thus, when issues of social policy are being discussed and debated by the community, it is of the highest importance that the privileged classes are not denied opportunities to hear and to take seriously the voice of the poorest and most oppressed members of society.