In a decision filed today, US District Court Judge Hillman found both parts of Worcester’s 2013 anti-panhandling plan unconstitutional. [PDF]
The only parts he left stand were the City redefining “traffic island” and a couple other similarly minor changes to Worcester ordinances.
Ever since the Supreme Court vacated a previous ruling upholding the ordinances, I think we all figured that the time-and-place restrictions, which set up hundreds of areas in the city where you couldn’t ask for help, were probably unconstitutional. I didn’t think the judge would also rule against the traffic safety portion, which says that if a policeman tells you to stop standing around on a traffic island or in the road, you have to get moving. (He technically also struck down the part that deals with actual aggressive behavior, but as he notes there are many other laws against that sort of bad behavior.)
In striking down the first part of the ordinances, the judge writes:
…I find that the entirety of Ordinance 9-16 fails because it is not the least restrictive means available to protect the public and therefore, does not satisfy strict scrutiny. While I find that none of the provisions of Ordinance 9-16 can withstand strict scrutiny as written, the City and other municipalities have raised some legitimate concerns regarding aggressive panhandlers and public safety. Post Reed, municipalities must go back to the drafting board and craft solutions which recognize an individuals to continue to solicit in accordance with their rights under the First Amendment, while at the same time, ensuring that their conduct does not threaten their own safety, or that of those being solicited. In doing so, they must define with particularity the threat to public safety they seek to address, and then enact laws that precisely and narrowly restrict only that conduct which would constitute such a threat.
In striking down the traffic safety portion, he writes, quoting extensively from a ruling on a similar case in Maine:
The City can point to specific medians and traffic islands as to which a pedestrian use should be prohibited in the interest of public safety (the traffic islands and/or medians in Kelly, Newton and Washington Squares come to mind). However, on this record, it has not established the need for the “sweeping ban … it chose.” “ ‘In short, the City has not shown that it seriously undertook to address the problem with less intrusive tools readily available to it.’ Instead, it ‘sacrific[ed] speech for efficiency,’ and, in doing so, failed to observe the ‘close fit between ends and means’ that narrow tailoring demands.”
(Emphasis added and citations deleted above.)
Continue reading »