State law against panhandling unconstitutional, court rules

A state law that bars panhandling while allowing newspaper sales, charity fundraising and even taxi hailing at the same street corners violates the First Amendment, the Supreme Judicial Court ruled today in striking down the law.

The ruling comes in the case of two Fall River men, John Correira and Joseph Treeful, who were charged more than 40 times in 2018 and 2019 with violating the state ban on panhandling. Both were subsequently locked up for brief periods, one for missing a court date on one of the charges, the other after police found he was wanted on other, unrelated charges after he was cited for panhandling.

The court said that public streets make up a "public forum" in which people can speak their piece, even if they are more dangerous than, say, a park gazebo, and that the current law unconstitutionally differentiates forms of speech - in this case, requests for money and newspaper hawking. As with religious objects in public parks, if government allows one form of speech, it has to allow all the others.

Still, a state law that limits one form of speech can be allowed if it is very narrowly constructed for a very specific purpose. Fall River and its police department argued that the law is constitutional because panhandlers can interfere with traffic, causing potential safety issues.

But the court agreed with the two men - and Bristol County DA Thomas Quinn - that the law goes too far.

Here, there can be little doubt that signaling to, stopping, or accosting motor vehicles for the purpose of soliciting donations on one's own behalf poses no greater threat to traffic safety than engaging in the same conduct for other nonprohibited or exempted purposes, such as gathering signatures for a petition, flagging down a taxicab, selling newspapers, or soliciting donations for a nonprofit organization. Because G.L. c. 85, §17A fails to prohibit "vast swaths of conduct that similarly diminish[] its asserted interest[]" in traffic safety, we conclude that the statute is not narrowly tailored to serve that interest.

The court continued the law is simply too broad:

First, the statute applies to all public ways, regardless of whether the characteristics of a particular street are such that the plaintiff's expressive activity would pose a safety risk. Second, the statute broadly prohibits signaling to, stopping, or accosting a motor vehicle for the enumerated purposes without regard to whether those activities are performed in a manner that in fact poses a risk to public safety. See McLaughlin, 140 F.Supp.3d at 190 (noting that ordinance prohibiting "a panhandler who never raised her voice or lifted a hand" from soliciting donations "is not narrowly tailored to the goal of public safety, much less the least restrictive means available to achieve that goal"). As the plaintiffs point out, actual interference with traffic is not even an element of a violation of G.L. c.85, §17A. Rather, merely sitting by the side of the road holding a sign that states"I am homeless, please help" could trigger criminal prosecution under the statute. The fact that Fall River professes to enforce the statute much more narrowly than a "more natural reading" of its language would permit merely highlights the fact that, on its face, the statute reaches far more broadly than necessary to achieve the government's stated purpose.

Although he agreed with the two men, the DA suggested the law could still be saved by only striking down the parts of the law that go too far, leaving behind a law that could still be used to try to limit panhandling.

Nope, the court said.

Ultimately, we agree with the plaintiffs that the statute's constitutional infirmities are too pervasive to be remedied through partial invalidation or severance.

It gives an example of how the law would remain unconstitutional:

The line between a noncommercial solicitation of a donation and the "selling [of] any merchandise" (which, under this hypothetical remedy,would continue to be prohibited by the statute) can be a slippery one.Imagine that a police officer sees an individual step out into the roadway, accept money from a motorist,and then hand the motorist a rose.Will enforcement turn on whether the officer perceives the exchange as a sale of the rose or the giving of a small token in thanks for the donation of money? We see little in that distinction to guide law enforcement or to give comfort to those engaged in the protected activity of seeking donations for personal support that their activity would not result in criminal prosecution. In short, we are of the view that the district attorney's proposed remedy would produce a statute that is still likely to deter a substantial amount of protected, noncommercial speech.

The court suggested the legislature is free to try to deal with the conundrum and find ways to keep pedestrians with something to say from getting run down by motorists, but that it would have to do so carefully so as to not re-raise the same First Amendment issues.