August 4, 2011
The man, Joshua Long, has been the subject of five arrests and, according to the complaint, repeated harassment by New York police officers.
While it may not seem it, the case raises several free speech issues that have become increasingly relevant recently.
Long moved to New York City after being discharged from the U.S. Navy, and started holding the sign in Times Square shortly thereafter, and he found the practice to be quite lucrative.
Long was arrested under a New York law (NYPL §240.35(1)) that criminalizes loitering for the purpose of begging, which would have been fine if the law wasn’t struck down as unconstitutional in 1993’s Loper v. New York City Police Dept.; and repealed in July 2010.
The continued enforcement of the statute appears to be a serious problem in NYC, not to mention the subject of a 2007 class action lawsuit.
That suit was won by the plaintiff panhandlers, but the City of New York avoided contempt fines because the court believed the defendants’ repeated assurances that the practice was strongly discouraged and not systemic, and the law was only enforced by a few individual officers.
If it’s really as the complaint claims – that Long was arrested five times between May 31, 2010, and June 5, 2011, by at least three different officers – the practice may not be so isolated.
Or, as is more likely the case, it could be that given Long’s high profile and reference to marijuana, he was specially targeted.
Hot Doc: Long v. City of New York
In any case, the City is liable if the arrests were indeed made under NYPL §240.35(1) as the complaint claims.
If that isn’t the case – if Long was instead targeted by police because his sign seemed to encourage illegal drug use, and the arresting officers relied on a different criminal statute at the time, the outcome could be completely different.
Admittedly, this is probably a big “if,” since there’s absolutely no evidence to support the scenario, and the circumstances seem to support the complaint.
But if Long was targeted because of his weed references, the case may have a significant legal impact.
As many probably remember, the Supreme Court ruled in 2007’s Morse v. Frederick that “BONG HiTS 4 JESUS” isn’t constitutionally-protected speech, at least for a high school student.
While the majority implies its holding is narrow and applies only to student speech promoting illegal drug use, Part III of the opinion is dedicated to explaining that the speech was unprotected because it encouraged illegal drug use.
While Long’s case is unlikely to reach the Supreme Court, Morse creates a precedent that may render speech that seems to encourage illegal drug use, such as Long’s sign, unprotected by the First Amendment.
This all would leave Long with a very tough fight, but it would also serve to develop First Amendment case law on the issue.
In all likelihood, though, Long was simply arrested under an unenforceable law, and New York City will want to get this settled and over with as quickly as possible.
If not, we may find out if “Help! I Need Money For Weed” could be the next “BONG HiTS 4 JESUS.”