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Rest is allowed ... free speech isn't

Rest is allowed ... free speech isn't

Parrish Miller
December 24, 2013
December 24, 2013

Every year in Idaho, the Legislature reviews various proposed rules submitted by state agencies and departments to determine if they are appropriate and consistent with state statute and legislative intent. One such rule change proposed by the Idaho Transportation Department would add new regulations to the "Rules Governing Safety Rest Areas" (39.03.50).

Among other changes, the proposal would prohibit "Begging, panhandling, hitchhiking and asking for or accepting donations unless specifically authorized by the Idaho Transportation Department." It would also prohibit the "offering of any service for ... monetary gain."

Idaho law on hitchhiking (49-709) already stipulates that "no person shall stand on a highway for the purpose of soliciting a ride." Some have speculated that soliciting a ride while walking might technically be allowed under this provision, but such an interpretation is dubious. If these new rules are implemented, it would appear that there will be nowhere left along Idaho highways where an individual may request a ride.

It is concerning both that the proposed rules fail to define any of the terms that are being used to describe prohibited actions and that those undefined prohibitions are therefore susceptible to overly broad enforcement. Would a broken-down motorist asking for a lift to the next gas station be guilty of hitchhiking? Would a mother with a fussing baby asking the family parked next to her if they had any extra diapers be guilty of begging or panhandling? Would a resting tow truck driver offering his services to a stranded motorist be guilty of illegally offering a service for monetary gain?

Another issue is that in August a Michigan law prohibiting even peaceful panhandling in all public places was struck down as unconstitutional by the court of appeals, which prompted the ACLU of Michigan to send letters to 84 municipalities across the state notifying them that the anti-begging ordinances on their books are unconstitutional and should be repealed.

In the Michigan case, the court found that the law against panhandling "would chill a substantial amount of First Amendment-protected activity." It seems quite likely that the rule changes proposed by the Idaho Transportation Department would have a similar impact.

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