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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.

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Comments

Pedestrians are struck there every year. Hopefully they can rewrite the law to prohibit that type of conduct.

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Voting closed 35

Yeah, but there's gotta already be a law against striking pedestrians, right?

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Voting closed 6

I mean separate from that area's famous population of homeless and/or opiate-addicted people, it's just not a very good intersection. It's sort of an inherent problem with having a glorified off-ramp feeding into an intersection of a few other major roads, but it seems like there's a lot you could do to allow pedestrians to navigate that more safely.

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Voting closed 8

do people hate the homelessness around mass and cass or do they hate having to see it?

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Voting closed 7

After you have years of people shooting up on your front stairs, stealing your packages daily, leaving garbage everywhere, and you've stepped in human feces and had to pull a syringe from your dog's paw, let me know how much love you have when they block traffic to hit you up for money after you're just trying to drive home from a long day.

Is it right to hate them for that? Probably not, but it's a very human response to a frustrating situation for everyone. I think it's easy to judge people who live in the area as wealthy intolerant monsters with nothing but disdain for the homeless, but how many people would put up with this in their neighborhood for a day let alone a decade where it gets worse every week?

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Voting closed 6

.

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Voting closed 23

I understand the power of addiction and really wish that we had a far better system for getting help to those people. However, that isn't going to stop me from being annoyed that I have to see someone shooting up or taking a shit on the sidewalk five feet from me.

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Voting closed 27

There is so much help for them, they want to get high, pay the game and live that life. You can get high for months , go to detox, program get medical care and when you are feeling wrong again hit the street. It a scene a party and you leave it when you want to.

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Voting closed 7

striking pedestrians with cars?

I agree.

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Voting closed 18

when is the last time anyone bought the Herald sitting at a red light?

hailed a taxi cab?

had little leaguers with collection cans knock on your window?

all i ever see are overweight panhandlers drinking dunkin iced coffees.

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Voting closed 52

On weekends, there's usually a squad of guys in yellow vests with cans at the intersection of Spring Street and VFW Parkway in West Roxbury asking for donations.

And at least in the before times (haven't been there since March), there was usually at least one guy selling flowers amid the traffic at Morrissey Boulevard and Freeport Street in Dorchester.

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Voting closed 35

I miss the guy at the corner of Arlington and Boylston selling the Boston Phoenix.

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Voting closed 21

I'm old enough to remember the guys in Kenmore who would try to hawk the Improper Boston and Boston Comics News (pre-Editorial Humor title) when those were in free boxes

I still see the flower guy at McGrath and Broadway in Somerville from time to time

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Voting closed 18

He was such an anomaly out of time. Long after all the late 60s/early 70s "hawkers" of the old Boston After Dark/Phoenix had faded away he kept right on going straight through the 80s. Keep in mind, in the original day the ONLY way to get these "underground" publications was from the hawkers and maybe in head shops (and free on college campuses). No "straight" establishment would touch them. But by the 80s I don't know what people thought of this guy going up to cars to sell a product that could be had in any convenience store. By the way, in the early 70s he also used to sell vinyl bootleg albums on the street near Copley Square.

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Voting closed 14

They’ve been selling flowers at Boardman and 1A for decades. Great for greeting a loved one at Logan.

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Voting closed 25

did somebody finally sue him??

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Voting closed 19

I hadn't seen him in some years. Hasn't aged a bit. Also apparently still having tire troubles. When he approached me I said "Hey Eliot! Good to see you! Gotta run, take care!"

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Voting closed 18

A step in the right direction. Homelessness should not be illegal.

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Voting closed 5

Homelessness does not mean panhandling.

My wife has a few students living in emergency housing with a parent who has a job. Don't equate one with the other.

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Voting closed 6

No but a good portion of panhandlers are homeless. In many areas, homelessness is considered an illegal activity. This is one step in overturning homelessness is illegal and it is a good thing.

https://nlchp.org/panhandling/#:~:text=Anti%2Dpanhandling%20laws%20fail%....

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Voting closed 18

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Voting closed 21

Then this was one issue that was outstanding.

It is a good thing.

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Voting closed 25

When I was living in DC we heard that they still had a vagrancy law on the books. As I recall part of it was that if you didn't have an ID and $20 you were considered a vagrant. Of course as college kids it wasn't unusual to have no money so it was a bit of a joke to us. I don't think they had enforced the law in years though knowing it would be shot down in court.

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Voting closed 15

I'd be happy to see a law banning accosting people in their cars regardless of whether it's to supposedly raise money for a good cause, sell something, or panhandle. If you want to keep people out of the roadway, just ban it without differentiating types of speech or whether it's commerce or not.

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Voting closed 8

Boston Chargers. Remember that? Remember how the city allowed those children to be exploited and abused for years? Freedom of speech my arse.

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Voting closed 31

Recently. Like last year in Mattapan?
I used to panhandle in Cambridge. Harvard Square. Had some good English Muffins from Brigham's.

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Voting closed 19

The most shocking part of the whole Chargers “team” was that there were never any athletics involved and they were just kids in orange (iirc) shirts asking for donations and they had to turn their earnings over to parents/adults.

I always felt bad that those kids’ parents made them beg to fund their “track team” and it was always uncomfortable seeing them in action, but when it was reported that it was all a front, it shocked even my jaded self and I felt worse for those kids.

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Voting closed 28

It was one guy pimping his multiple children out from what I hear. It was the least shocking thing I had ever heard when it was revealed. No one cared then either.

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Voting closed 6

I worked at a bar (different city) and there were kids hustling the area to get money for football uniforms most weekend nights. Of course we'd always see them and they knew not even to bother asking us but we figured it was a racket. The kid who seemed to be in charge was around fourteen or fifteen. He swore up and down to us that it was a legit team but eventually he got to know us and knew we didn't care so told us how it ran.

He had an older brother in who had a good computer setup for graphics and printing so the kid used it to design some official looking ID and bought a plastic sleeve and lanyard at an office supply store. When the money was coming easy he recruited some other kids from his neighborhood and set them up with their own stuff to use when they went out "working" with him and he'd get a cut from each of them. Then he took some of the money he was making and had a bunch of football jerseys made up at a local shop which increased how legitimate they looked and increased their take even further. He wouldn't tell us how much they were pulling in but on a good night he'd have eight or ten kids working and he'd just kind of be hanging back watching the operation.

It was a hustle, but we had to give the kid credit for putting together such a good racket.

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Voting closed 22

Is this the same group that a few years ago were a group of young kids in football jerseys around Dorchester gallivan blvd collecting money while one man was always on sidewalk looking sketchy ? First off they would use open cans with no security to keep the cash in the can and on multiple occasions I would see the kids take the cash right out of the can they were holding and stick in their sock!! Legit ... that group was a scam and I used to be so annoyed seeing these children weave in and out of traffic while scumbag man standing on side walk . No name sports league scamming his fellow neighbors .

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Voting closed 17

You prefer a world where people in cars accost bicyclists and pedestrians?

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Voting closed 7

Interesting decision, will the transit police no longer be allowed to kick the homeless out of stations for panhandling?Will the squeegee men return to the major intersections of downtown Boston.

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Voting closed 8

The issue appeared to be censoring the kinds of solicitations. Some twenty something could accost me to “help the children” or whatever legally, but if someone just asked for a buck, it was a crime.

If the T has a fair and equitable policy, things should be fine. Of course, given all the times I’ve met someone on the platform of an Orange Line station looking for help getting to their probation officer in Worcester or just cash for a meal, I don’t think they enforce anything.

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Voting closed 9

This decision applies to public spaces in their capacity as public forums. Streets and parks generally aren't owned by the agencies that maintain them, they're owned by the general public and held in trust by whatever agency (IE: PWD, MassDOT, Parks & Rec, DCR, etc) is tasked to be responsible for them (which is the reason access to parks and public ways can't be restricted to residents only (certain uses like resident parking and resident access to certain recreational facilities are a different matter that fall under use of a public space)). Most of the MBTA's property doesn't fall under the public space category, so like any other property owner, it is pretty much free to set its own rules.

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Voting closed 19

Wait, it's legal to stand in the street selling stuff to people driving by? Can we just ban that, and then it will be ok to ban panhandling from drivers as well?

Taxis are totally different. They're highly regulated and limited, and drivers need special training. And they're not supposed to pick people up in the middle of a multilane road at a red light.

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Voting closed 27

work this out to get Uber/Lyft banned as well. Technically they are soliciting business in the street without any regulations. I second your idear!

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Voting closed 20

Give them to underprivileged children!

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Voting closed 21

The activity is called "Stemming" and some can make a few hundred a day. Then you smoke it or shoot it. The indigent street addicts are a culture, a lifestyle, and one that accepts defeating on the sidewalk where they shoot methamphetamine into their necks. Save your change.

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Voting closed 8