In a recent case out of Fall River, Massachusetts, the state supreme court found a panhandling law so riddled with constitutional problems as to require entire invalidation. Plaintiffs, each a homeless person who sometimes panhandled to meet their basic needs, sought declaratory and injunctive relief against a state law that criminalized signaling to a motor vehicle on a public way “for the purpose of solicitating any alms, contribution or subscription or selling of any merchandise,” but expressly permitted the same conduct undertaken for other purposes or by a nonprofit organization. They alleged violations of free speech rights under the First Amendment and state constitution.
As one defendant conceded, the statute clearly facially violates the First Amendment. It is well-established that soliciting is a protected expressive activity and, constitutionally, there is no distinction between soliciting for oneself and for charities. The state’s public ways are traditional public fora, and the statute indisputably creates a content-based regulation subject to strict scrutiny. The court found that the statute—purportedly enacted to protect public safety on public ways—was both underinclusive and overinclusive: the content-based distinction exempts conduct that could pose a safety threat and criminalizes that which may not pose one at all. The statute similarly failed to pass scrutiny under the state constitution.
Turning to remedy, the court considered a defendant’s suggestion that the statute could be rendered constitutional if only the prohibition of “soliciting of any alms” was struck. It also questioned whether the statute could be saved by striking other provisions, but ultimately agreed with the plaintiffs that the constitutional problems were too pervasive to be remedied by anything but removal of all content-based restrictions and exemptions. Anything less, in its opinion, would create an unacceptable risk of chilled speech.