"Freedom of Speech" vs. free use of resources for speech

In his classic text, Economic Analysis of Law, Richard Posner makes the important distinction between "freedom of speech" and the provision of scarce resources for people to use in order to exercise their right of free speech.

For example, under freedom of speech, I have the right to criticize a gubmnt official. I do not have the right to run ads on television publicizing my criticisms unless I pay for the ads. This distinction is crucial to understanding the economics of freedom of speech.

Where does pan-handling fit in? Is begging an exercise of my free speech? If I persistently walk up to people in crowded areas, asking for money, is that an exercise of my free speech? Kip Esquire thinks it is.

First, it is not clear that beggar-free streets, even in an important central business district, are a "compelling" interest — nice, perhaps, but not "compelling." Ugly, or smelly, or guilty-feeling-creating are not sufficient intrusions on our sensibilities to warrant wholesale removal from an entire area — even a tourist area.

And even if there were a sufficiently "compelling" interest, a law banning all panhandling, even merely sitting quietly in a corner with a cup in your hand, is still not "necessary" to achieving that goal, nor is it the least restrictive means available to achieve that interest. Enforcing existing laws relevant to aggressive panhandling, such as disturbing the peace, public nuisance, harassment, and even assault and battery if warranted, will "keep the beggars in their place," so to speak.

Or, if more is needed, laws proscribing aggressive panhandling can achieve the public interest with far less implication of First Amendment protections. A group called Center for the Community Interest has drafted a Model Aggressive Panhandling Law that would seem to address most of the concerns of those who support the ban (e.g., repeated requests, following or physically touching people, shouting) without a complete outlawing of all begging.

That's my opinion — any dissents?

I have a very high regard for Kip Esquire. His blog is one I try to visit on a regular basis, and he always seems several steps smarter and ahead of me. But in this case, he still has a ways to go before I'm convinced.

I don't see sitting on a street corner with cup as speech. And if someone thinks asking people for money on the streets is expressing a political view and requires protection, I do dissent. "Give me money or I'll harass you" sounds more like extortion than free speech to me. But most importantly, limiting where and how people use scarce resources that are not their own is not limiting freedom of speech; it is a limitation on using scarce resources.

I realize the distinction may sound picky, but it is really important.