Worcester’s third anti-panhandling plan: unconstitutional

posted by Mike on November 9th, 2015

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.

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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.)

Other coverage:


I haven’t seen any sort of report on whether the ordinances had any impact on panhandling. Anecdotal evidence is that while they kept kids from fundraising in traffic, they didn’t really affect down-and-out people holding signs.

For what it’s worth, I remain mildly opposed to the anti-begging ordinances and majorly opposed to the shoddy process through which they were enacted.

Back when these laws were first being discussed, one frequent question from opponents was, “Aren’t there existing laws against harassment, that don’t target specific kinds of speech?” It’s nice to see a federal judge do the work of researching these:

At the time the letter was written, there were several statutes and local ordinances already in existence that could have been applied to aggressive solicitation. These included the following prohibitions:

a. A law prohibiting the stopping of a vehicle or “accosting” the occupant of a vehicle for purposes of solicitation. See Mass. Gen. Laws ch. 85, § 17A (“Whoever, for the purpose of soliciting any alms, contribution or subscription or of selling any merchandise, except newspapers, or ticket of admission to any game, show, exhibition, fair, ball, entertainment or public gathering, signals a moving vehicle on any public way or causes the stopping of a vehicle thereon, or accosts any occupant of a vehicle stopped thereon at the direction of a police officer or signal man, or of a signal or device for regulating traffic, shall be punished by a fine of not more than fifty dollars.”).

b. A law against disorderly conduct. See Mass. Gen. Laws ch. 272, § 53(b) (“Disorderly persons and disturbers of the peace, for the first offense, shall be 4Case 4:13-cv-40057-TSH Document 120 Filed 11/09/15 Page 5 of 30 punished by a fine of not more than $150. On a second or subsequent offense, such person shall be punished by imprisonment in a jail or house of correction for not more than 6 months, or by a fine of not more than $200, or by both such fine and imprisonment”); see also Alegata v. Commonwealth, 353 Mass. 287, 304 (1967) (disorderly person is one who “with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”).

c. A law against assault and battery. See Mass. Gen. Laws ch. 265 § 13A(a) (“Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than 2 1?2 years in a house of correction or by a fine of not more than $1,000.”).

d. A law against trespass. See Mass. Gen. Laws ch. 266, § 120 (“Whoever, without right enters or remains in or upon the dwelling house, buildings, boats or improved or enclosed land, wharf, or pier of another, or enters or remains in a school bus, as defined in section 1 of chapter 90, after having been forbidden so to do by the person who has lawful control of said premises, whether directly or by notice posted thereon, or in violation of a court order pursuant to section thirty-four B of chapter two hundred and eight or section three or four of chapter two hundred and nine A, shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than thirty days or both such fine and imprisonment.”).

e. A law against the obstruction of streets, sidewalks, and crosswalks. See Worcester, Mass., Rev. Ordinances ch. 12, § 25(b) (“No person shall stand, or place any obstruction of any kind, upon any street, sidewalk or crosswalk in such a manner as to obstruct a free passage for travelers thereon.”).

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