1st Cir. to Weigh in on Panhandling Ordinances in Mass.

By Aditi Mukherji, JD on January 09, 2014 | Last updated on March 21, 2019

A case that's been making headlines during the holiday season, the First Circuit will soon weigh in on the constitutionality of anti-panhandling ordinances in Worcester, Massachusetts. No, the ordinances weren't sponsored by the Grinch. City officials claim they're necessary for public safety purposes.

But do the ordinances violate panhandlers' free speech rights?

Worcester's Anti-Panhandling Ordinances

In 2013, the city of Worcester passed two ordinances that restrict panhandling. The ordinances, enacted in January, restrict panhandlers from operating within 20 feet of locations including restaurants, public restrooms and ATMs, and "any other place of public assembly." They also block panhandlers from standing in the street or traffic islands to ask drivers for money. The ordinances ban "soliciting any person in public after dark, which shall mean the time from one-half hour before sunset to one-half hour after sunrise" (read: around 4 p.m.), reports the Worcester Telegram & Gazette.

Last May, the ACLU Foundation of Massachusetts and Goodwin Procter filed suit on behalf of three Worcester residents, claiming the ordinances violate the constitutional right to peacefully solicit donations in public and to engage the public in political and other speech.

Right before the holiday season, the First Circuit issued an injunction against the time restriction in the ordinance. The First Circuit heard oral arguments this week, so a decision should be out soon.

Panhandling Free Speech Precedent

The U.S. Supreme Court has never directly addressed free speech issues in the context of panhandling. However, the Court did uphold the right of organizations to solicit funds and distribute information in Village of Schaumburg v. Citizens for a Better Environment. The Court therefore struck down the municipal ordinance on free speech grounds.

Since that 1980 holding, the Supreme Court has continually held that "solicitation is a recognized form of speech protected by the First Amendment," including in Riley and Kokinda -- but again, never quite on the nose of panhandling.

Circuit courts have come to a similar conclusion, specifically about panhandling. When addressing the constitutionality of an anti-panhandling statute in 2000, the Seventh Circuit fleshed out Schaumburg by stating, "[l]ike the organized charities, [the panhandlers'] messages cannot always be easily separated from their need for money," and that "[w]hile some communities might wish for all solicitors, beggars and advocates of various causes be vanished from the streets, the First Amendment guarantees their right to be there, deliver their pitch and ask for support."

More recently, the Fourth Circuit's decision in Clatterbuck v. City of Charlottesville and the Sixth Circuit's ruling in Speet v. Schuette also held begging bans as unconstitutional restrictions on free speech.

Considering how broadly the Worcester ordinances ban solicitation -- encompassing not only the homeless but also Salvation Army volunteers -- and the precedent flowing from the Supreme Court, the First Circuit may just strike the ordinance down for good and reinvigorate the spirit of Christmas Future.

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