Mass. anti-panhandling law violates First Amendment

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The Massachusetts Supreme Judicial Court yesterday struck down a state anti-panhandling statute as a facially unconstitutional violation of the freedom of speech.

Disparate treatment of solicitation was the statute's fatal flaw.  The law exempted newspaper sales and police-permitted nonprofit solicitations in public streets.  The disparity proved the statute to be a content-based speech restriction that could not withstand First Amendment strict scrutiny in a public forum.

The case arose from prosecution of two low-income men in Fall River, Massachusetts, who, with "homeless" signs, solicited donations from passing motorists.  They were jailed for summons and probation violations, respectively, following criminal complaints initiated by police.

The district attorney conceded the unconstitutionality of the statute at least as applied, but Fall River and its chief of police defended the law.  The statute pertains broadly to signaling or stopping a vehicle "for the purpose of soliciting any alms, contribution or subscription or of selling any merchandise," a probably permissible scope.  But the law raises a content-based free speech problem when, subsequently, it purports to exempt newspaper sales and nonprofit solicitations.

Applying strict scrutiny, the Court ruled the law both overinclusive and underinclusive.  The law would punish speech that poses no threat to public safety while also exempting speech that threatens public safety no differently from panhandling.  Underinclusiveness, the Court observed, is additionally problematic in strict scrutiny because it undermines the compelling state interest asserted in defense of the statute.

The Court refused efforts to save the statute by partial invalidation or severance, finding the law's "constitutional infirmities ... pervasive."  The district attorney would have had the Court invalidate the statute only insofar as it prohibits solicitation of donations, rather than commercial transactions.  But that's too fine a line, the Court ruled.  The difficulty of distinguishing car-side commercial exchanges from noncommercial interactions would chill permissible speech intolerably.

Severing the exemptions also was a non-starter.  The law would then prohibit signaling or stopping cars for nearly any reason, including political expression that lies at the core of First Amendment protection.  Such a broad prohibition was not the legislature's intent, the Court reasoned.  Comparing the instant case with First Amendment precedents in this respect, the Court found the anti-panhandling law more akin to the expansive yard-sign prohibition struck down in City of Ladue v. Gilleo (U.S. 1994) than to the robocall exception narrowly invalidated by the Supreme Court in July.

By my estimation, it is possible for the Commonwealth legislature to chart a constitutional course for a car-side anti-panhandling law in Massachusetts.  But it will be a navigation between Scylla and Charybdis.  A law that will satisfy the Court should anchor itself in public safety and not distinguish among the motives of actors who may approach cars in live traffic lanes.

The case is Massachusetts Coalition for the Homeless v. City of Fall River, No. SJC-12914 (Dec. 15, 2020).  Justice Barbara A. Lenk authored the opinion of a unanimous Court.