‘Aggressive Panhandling’ Ban Survives Appeal

BOSTON (CN) - A ban on "aggressive panhandling" in Worcester, Mass., can stand, the 1st Circuit ruled, finding no evidence that the content of the speech factors into the restrictions.

Worcester, a city of 180,000 in central Massachusetts, passed two ordinances in January 2013, one of which targets distractions on public roads. The other prohibits "aggressive begging, soliciting and panhandling in public places."

"Aggressive" is defined in that law to include obviously threatening behavior, as by soliciting someone "in a manner ... likely to cause a reasonable person to fear immediate bodily harm," using "violent or threatening language," or blocking a person's right of way.

The law makes it "unlawful for any person to beg, panhandle or solicit any other person in an aggressive manner." The appellate court's ruling notes that it covers a range of "potentially coercive though not conventionally aggressive behaviors, including soliciting from someone waiting in line to buy tickets or enter a building; soliciting after dark; continuing to solicit from a person after the receipt of a negative response; and soliciting anyone within 20 feet of an entrance or parking area of a bank, automated teller machine, public transportation stop, pay phone, theater, or any outdoor commercial seating area like a sidewalk café.'

Robert Thayer and Sharon Brownson, both of whom are homeless, joined a Worcester School Committee member in suing the city over the laws, which they claimed were vague and infringed their rights under the First and 14th Amendments.

A federal judge denied them an injunction in October 2013, however, finding that they "had failed to meet their burden of demonstrating a likelihood of success on the merits of any of their constitutional claims."

Retired U.S. Supreme Court Justice David Souter, sitting on the three-judge appellate panel by designation, wrote the 36-page ruling affirming that finding.

"The ordinances adopted here come with a preamble and accompanying evidence that provide good reason to accept the ostensible objects of the ordinances as the true ones, that is, not suppressing certain kinds of messages but regulating their delivery," the June 19 decision states.

Souter also found "fairness" in the city's "working premise that there are particular, commonly acknowledged circumstances, unrelated to the expression of particular views and messages, in which solicitation can cause serious apprehensiveness, real or apparent coercion, physical offense, or even danger to the person addressed or to all parties. We are not dealing here, in other words, with a mere attempt to suppress a message that some people find distasteful for its content."

"A person can reasonably feel intimidated or coerced by persistent solicitation after a refusal, and can reasonably feel trapped when sitting in a sidewalk café or standing in line waiting for some service or admittance," Souter wrote. "And even the stout-hearted can reasonably fear assault when requests for money are made near an ATM where cash may have been obtained and so provide temptation to snatch a wallet or purse. These are not imaginary concerns that smell of pretext."

Rejecting the challengers' claims of vagueness, Souter noted "their failure to identify any specific instance of uncertainty on their part about the status of a traffic island, or the lawfulness of continuing to hold a solicitation sign, or the likelihood of police action, or any other detriment that might be attributable to a failure of textual concreteness."

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