Earlier this week, a U.S. District Court judge struck down two anti-panhandling ordinances enacted by the city of Worcester. The two ordinances sought to ban “aggressive panhandling” and “panhandling from traffic islands”. The ostensible reason for both ordinances was to protect public safety but the record (mostly minutes of Worcester City Council meetings) made it clear that panhandling was the target. The court reiterated that asking someone for money is speech protected by the First Amendment and so to restrict it requires not only a compelling government interest but also no less restrictive alternative. The court held that existing ordinances that criminalized trespassing, disorderly conduct, assault and other like behaviors were adequate to meet the public safety concerns of the city.
This decision came just two weeks after another U.S. District Court judge invalidated a city of Lowell ordinance that banned “aggressive panhandling.” (McLaughlin v city of Lowell).
Both decisions rely heavily on a June 2015 U.S. Supreme Court decision in Reed v Town of Gilbert, Arizona which invalidated an ordinance by which a town prohibited the display of some signs but not others. Because Reed was a unanimous decision by THIS Supreme Court, it seems that lower courts are investing it with considerable power as precedent with the message: don’t infringe on anyone’s rights under the First Amendment.
After the Lowell ordinance was invalidated last month, some councilors urged the city manager and city solicitor to “go back to the drawing board” to find a variant of the ordinance that would survive a challenge to its Constitutionality. If you read the following portion of Judge Woodlock’s decision in the case, you will realize what a waste of effort that would be.
The mechanism by which Lowell’s ban on panhandling downtown would promote tourism flies in the face of the First Amendment. The First Amendment does not permit a city to cater to the preference of one group, in this case tourists or downtown shoppers, to avoid the expressive acts of others, in this case panhandlers, simply on the basis that the privileged group does not like what is being expressed. It is core First Amendment teaching that on streets and sidewalks a person might be “confronted with an uncomfortable message” that they cannot avoid; this “is a virtue, not a vice.” Just as speech cannot be burdened “because it might offend a hostile mob,” it cannot be burdened because it would discomfort comparatively more comfortable segments of society. For First Amendment purposes, economic revitalization might be important, but it does not allow the sensibilities of some to trump the speech rights of others.
The Worcester case, Thayer v City of Worcester, is well worth reading for a couple of reasons. First, it shows the futility of ascribing “neutral” motives to any ordinance that is clearly directed at panhandlers; and second (and more practically), it reminds municipalities that existing statutes and ordinances can be used in response to the legitimate harm that some panhandlers might be causing.