Whether historical practice and tradition at the time of the founding categorically exclude begging from First Amendment free speech protection

No question identified. : 3. Alabama prohibits remaining in a public place for the purpose of begging. Ala. Code §13A-11-9(a)(1). Alabama also prohibits standing on a highway to solicit. Ala. Code §32-5A-216(b). But in the Eleventh Circuit, “begging is speech entitled to First Amendment protection.” Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999). As a result, the district court deemed Alabama’s begging laws facially unconstitutional and permanently enjoined their enforcement against Jonathan Singleton and a class of all other people who will beg on an Alabama street. Following circuit precedent, the Eleventh Circuit affirmed. 4, The forthcoming certiorari petition will argue that “the scope of the First Amendment” is defined by “history and tradition.” Vidal v. Ester, 602 U.S. 286, 301 (2024). The historical pedigree of begging laws is unparalleled. At the time of the founding, every single State had vagrancy statutes, many of which specifically banned begging. President Madison signed legislation empowering Washington, D.C., to penalize all persons “found begging.” 2 U.S. Statutes at Large 725-26 (1812). The roots of these laws run even deeper than the colonial era—they “have been a fixture of Anglo-American law at least since the time of the Norman Conquest.” City of Chicago v. Morales, 527 U.S. 41, 103 (1999) (Thomas, J., dissenting) (citing Papachristou v. Jacksonville, 405 U.S. 156, 161-62) (1972)). Alabama’s enjoined statutes have not just historical analogues but many historical twins. For instance, one of Alabama’s first acts incorporated Mobile and conferred specific powers to protect public order and decency, including the power to regulate and punish begging. See Act of Dec. 17, 1819 §7, 1819 ALA. ACTS 125, 129 (Boardman, ed. 1820). 5. The only question, then, is whether history matters when interpreting the scope of the Free Speech Clause. The answer must be yes. Time and again, the Court has asked whether the First Amendment was “commonly understood to upend” an established practice at the founding. Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 475 (2022); accord Elster, 602 U.S. at 295, 299, 301; City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61, 75-76 (2022); cf. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022) (discussing the government’s burden to show that expression “falls outside the category of protected speech” through “historical evidence about the reach of the First Amendment[]”). Although much free speech doctrine does not focus on constitutional text, history, and tradition, what counts as protected speech does. 6. Some categories of expression remain unprotected today because they have always been unprotected. See, e.g., Roth v. United States, 354 U.S. 476, 483 (1957) (obscenity was “outside the protection intended” at “the time of the adoption of the First Amendment”); Beauharnais v. People of State of Ill., 343 U.S. 250, 263 (1952) (defamation was sanctionable per “centuries of Anglo-American law”); United States v. Stevens, 559 U.S. 460, 471 (2010) (child pornography is integral to a crime, a “long-established category of unprotected speech”) (characterizing New York v. Ferber, 458 U.S. 747 (1982)). 7. Conversely, some categories of expression are protected today because they have never been restricted. See, e.g., Stevens, 559 U.S. at 469 (depictions of animal cruelty are protected for want of a “long history” of restriction); Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 795 n.3 (2011) (violent video games are protected due to the “absence of any historical warrant” for restriction); Republican Party of Minnesota v. White, 536 U.S. 765, 785 (2002) Gudicial campaign speech is protected because the “practice of prohibiti[on]” was “neither long nor universal”); Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 718 (1931) (reporting on official malfeasance is protected based on “one hundred and fifty years” without “restraints”