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Some Reflections on a ‘Right to Volunteer’
Do legal barriers to helping others violate a constitutional right?
Is there a right to help people? It’s not a question that comes up often in liberal societies. More frequently we ask whether there’s a duty to help people, and, if so, whose duty to whom? The ability to help others is assumed. Yet, strange as it may seem, legal barriers to helping others exist, and they seem to be popping up more and more in our hyperregulated age. In just the past few years, my colleagues at the Institute for Justice have defended the right to feed people in a park, the right to allow homeless people to live on your property and the right to give away food from your own home.
For example, a 78-year-old grandmother, Norma Thornton, discovered that some homeless people in Bullhead City, Arizona, spent their days in a local park, miles from the nearest shelter or food pantry. She took it upon herself to serve them hot, nutritious meals in the park. In response, the city adopted an ordinance that made sharing food in the park “for charitable purposes” illegal—although sharing food at a “social event” would be fine. The police arrested Norma and the city threatened her with jail if she did it again.
A similar outrage befell Kathy Hay of Asotin County, Washington. She set up a “little free pantry” outside her home. Akin to a little free library, it allowed neighbors to donate food—just as they might to a food bank—and those in need to take from it. In response, the county health department cited her for sharing food without a license.
Norma’s and Kathy’s stories are not unique. Baylen Linnekin has documented many other attempts by cities to restrict who can feed homeless people and to channel the giving to shelters and food kitchens. But the legal claims in Norma’s and Kathy’s cases are rather novel: Courts oddly haven’t grappled with a “right to help” or a “right to volunteer” much before. Perhaps that is a sign that things are getting worse, or that previous legal barriers to charity have been framed in different ways. Whatever the reason, the work of my colleagues at the Institute for Justice on these cases has inspired me to reflect on a “right to volunteer” and how to think about it if our world increasingly “professionalizes” the task of helping others.
My Brother’s Chainsaw Keeper
I first thought about this issue several years ago, when I had just started working as a public interest lawyer and a news story hit my desk. I had already been advising some lawyers who were about to challenge an occupational licensing ordinance in the city of Minneapolis as a (very appropriately, it turned out) pro bono project.
Minneapolis required any company performing “tree servicing” (i.e., a tree trimmer) to have a certified arborist on staff, obtain insurance and abide by some health and safety standards. There were a number of problems with the certification requirement, including that bigger companies could more easily satisfy the staffing mandate and that the “arborist” certification requires far more knowledge than is needed simply to trim or cut down a standard homeowner’s tree. The insurance and safety standards, though, were much less onerous and more reasonable. Jim Dolphy, the mom-and-pop-size tree trimmer the lawyers represented, easily met those standards for his business, which already operated in the suburbs. The company was only challenging the certification requirement, not the other regulations.
Into this preparation for Dolphy’s case came the story of Mike Haege, another tree trimmer based in the suburbs. A violent storm ripped through the area in May 2011, cutting power for thousands and felling countless trees, including in north Minneapolis. Haege’s sister lived there, and the city itself was asking for volunteers to come help clean up the neighborhood. Haege arrived, signed in as an “official” city volunteer and went to offer his skills to troubled residents. But when city officials found out he didn’t have a Minneapolis license, they told him to leave the city—even after homeowners who had trees strewn across their urban lots were begging Haege to help them. He later received a citation for just under $300.
The lawyers who were preparing Dolphy’s legal challenge reached out to Haege, who joined the lawsuit. They reconfigured their constitutional claims and presented them on two different levels: (1) that the arborist requirement was an unconstitutional restriction on Dolphy’s right to earn a living and (2) that applying it to Haege violated his right to volunteer.
Minneapolis officials may have targeted Haege because they thought he was lying about his volunteer status. And perhaps that was true—but under the city ordinance, it didn’t matter. The language broadly required—and still requires—a license for anyone who cuts any branch or trunk that is two inches in diameter or more, or any tree. It does not limit its scope to services made for payment. The only exceptions are for “residents or owners of a subject property.” Indeed, not only did this mean Haege could not volunteer, but neither could anyone else unless they happened to work for a licensed Minneapolis company. A homeowner could not even have his own brother or best friend help cut down a sufficiently sized branch, let alone a tree.
At first, the state trial court tossed out the lawsuit. But the two tree trimmers appealed, and the court gave their side a preliminary victory that sent the case back down to the lower court. Minneapolis then settled and liberalized its arborist requirements for companies with fewer than 20 employees. That was great for the right to earn a living of entrepreneurs like Dolphy. Yet the entire saga left me wondering how on earth it could be true that someone’s friend or relative couldn’t come help them cut a branch off a tree—something, I’m sure, that has actually happened thousands of times in Minneapolis alone, turning every family brush-clearing day into a criminal conspiracy.
Setting the silly arborist certification requirement aside, requiring for-profit tree trimmers to be insured sounds reasonable, or at least constitutional. But imposing that same requirement on the family or friends of a homeowner? I thought that had to violate some kind of constitutional principle. And to me it sounded like a right to volunteer.
Volunteers of the Court
As I conceive of it, a right to volunteer arises when a law might make sense for a for-profit business offering services or selling goods, but doesn’t if someone is doing the same thing for free. If the rule doesn’t make sense for businesses in the first place, then we are talking about a right to earn a living, or just that the law is simply unconstitutionally irrational. Thankfully, although legislatures write a lot of occupational licensing laws and other regulations so broadly that they apply to volunteers, generally the authorities don’t apply them that way, meaning there haven’t been that many Norma Thorntons or Mike Haeges who end up in constitutional history.
The closest the U.S. Supreme Court has come to recognizing a right to volunteer was in Johnson v. Avery (1969), the “jailhouse lawyer” case. Serving a life sentence in Tennessee prison, William Joe Johnson developed a knack for helping other prisoners with their petitions for habeas corpus. The prison threw him into solitary confinement for violating its rule outlawing such assistance. The prison also explained that, regardless of the rule, Johnson was not a licensed attorney and therefore it was illegal for him to essentially serve as the prisoners’ lawyer.
Johnson challenged his confinement and won at the Supreme Court. Noting that it is extremely hard, if not impossible, for inmates to receive outside legal assistance once they are convicted, the Court found that jailhouse lawyers like Johnson are a necessary part of inmates’ exercising their habeas rights, and therefore that banning “jailhouse lawyers” violates those rights. Today, with subsequent developments in First Amendment law, the Court would likely decide the case on free speech grounds. But Justice Abe Fortas framed it as a version of a right to volunteer, albeit in limited circumstances.
Volunteering has also arisen in another legal context: the right to solicit clients when the attorney will not charge for services and when the clients are to be part of a “test case.” During the civil rights era, Virginia used “barratry and champerty” laws to try and shut down the NAACP’s attempts to challenge school segregation. This impeded the NAACP from offering its legal services directly to prospective clients. The Supreme Court, in NAACP v. Button (1963), ruled those barriers violated the group’s First Amendment rights. The NAACP’s lawyers’ right to volunteer was not exactly the legal issue, but at its core that’s what the case concerned: finding clients to represent for free in aid of a larger social goal. It has since been used by countless public interest attorneys (including yours truly) when soliciting clients to represent pro bono.
There’s a lot more to volunteering, of course, than legal work—though it’s probably not surprising that most of the “volunteer cases” to reach the nation’s highest court have concerned lawyering. But huge questions remain about how courts might treat situations like Norma Thornton’s or Mike Haege’s. There have been some lower court decisions involving a right to help others, but, as in NAACP v. Button, only incidentally.
One example is when a group called Fort Lauderdale Food Not Bombs unlawfully fed the homeless in a city park as part of a campaign to cut military spending and increase funding for public assistance. Because their feeding routine was part of this larger expression, the U.S. Court of Appeals for the 11th Circuit ruled that the activity was protected by the First Amendment, but the court said nothing about whether the Constitution protects the giving of food itself.
You Can(’t) Do That for Free
For the most part, laws that could encumber volunteering in fact don’t because, unlike in Minneapolis, they only apply to for-profit activity. That raises another issue, however, and it’s one that classical liberals might be conflicted about: Why does the law treat you differently if you provide goods or services to earn a living rather than as charity?
Philosophers Jason Brennan and Peter Jaworski address this issue in detail in their wonderful book, “Markets Without Limits: Moral Virtues and Commercial Interests.” They respond to the many critics who, for a variety of moral reasons, argue that certain activities and products should not be for sale. For example, blood plasma should not be sold because the act “dehumanizes” the seller, or we should not allow for-profit advertising on public property because it taints our shared spaces with the coin of commerce.
After digging in, Brennan and Jaworski demonstrate that the addition of money to these relationships is not a relevant moral difference, beyond an instinctual “disgust” reaction humans have. They also repeatedly demonstrate that the critiques against so-called “commodification” are often simply critiques of the underlying activity. For example, arguments against for-payment surrogacy contracts for couples who cannot have children turn out really to be arguments against surrogacy, period.
Often a critique of an activity—such as selling blood plasma—may be legitimate, but it has nothing to do with money and can be addressed without banning the good or service—such as testing plasma for diseases and screening out high-risk donors, whether or not the donor is compensated.
You may have heard the argument: “I can do that for free, so why can’t I do it for money?” There are a number of reasons regulators might raise—and that Brennan and Jaworski discuss—to justify a law that applies only to profit-seekers. One reason is that professional providers are more likely to take advantage of consumers when they are not acting simply from a desire to help. But for each of those reasons there’s a counterargument, such as that professional providers are more likely to offer a quality product because they care about their reputation and making sure their customers come back.
The mirror image of this argument would be: “I can do that for money, so why not for free?” Consider a situation where a government regulation of certain goods or services makes sense in the abstract but would be burdensome for volunteers to follow—though professionals can. This assumes that imposing the regulation on professionals—as they are repeat players who earn income from the service—does not unnecessarily inhibit them from operating and that it actually protects the public. Insurance for tree trimmers might be one example; it might make sense for professionals, but imposing it on volunteers (especially friends or family of the recipient) will inhibit those services and unnecessarily “professionalize” otherwise normal volunteer activity.
This certainly would not hold true in all cases—just because someone is barred from having their non-doctor brother perform elective gallbladder surgery on them does not mean the medical practice law is unconstitutional. Sometimes a law should apply to everyone, whether a volunteer or otherwise. But in a great many situations this distinction holds up. With no income stream attached, volunteers do not have the time or money to comply with otherwise sensible regulations.
Not exempting volunteers—even if there might be some small safety risks—crowds out charity and fraternity in favor of professionalizing delivery of the goods or services. It also, of course, might put those goods and services out of reach for the poor. Even the staunchest defenders of the free market would be wary of always treating professionals and volunteers the same, if they conceded that the regulation of professionals was reasonable and warranted.
How would this right to volunteer take shape under constitutional law? I do not have definitive answers here, just some preliminary ideas. The right to help people certainly is a right “retained by the people,” that is, a right individuals have in the theoretical state of nature before they step into society. It is therefore a right that should be protected under the Ninth Amendment, or at least the “Baby Ninths” in state constitutions that I recently wrote a book about.
Volunteerism is certainly something that is “deeply rooted” in American history and tradition—indeed, in any people’s history and tradition. It therefore may be protected under the 14th Amendment’s due process clause despite the limited standard from last year’s Dobbs opinion, the case that overturned Roe v. Wade.
These and other arguments will crystallize as the Norma Thorntons and Mike Haeges of the world find themselves increasingly caught up in planners’ professional dreams for our society. Or, perhaps, our long tradition of exempting pure volunteerism and simple family relationships will continue mostly intact.