The First Amendment rights of homeless people were violated by a state law that made it a crime to flag down passing motorists to ask for cash, the state’s highest court ruled unanimously Tuesday.
The Supreme Judicial Court said the law, enacted in 1930, singled out and banned panhandling homeless people from public streets, while it exempted people from criminal charges if they were flagging down motorists to sell newspapers or roses.
The right of free expression embodied in the First Amendment to the United States Constitution and Article 16 of the Massachusetts Declaration of Rights must be applied equally, the SJC concluded.
“The State’s interest in protecting public safety on its public ways is a compelling one,” wrote Justice Barbara Lenk, who is now retired. But “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 . . . gathering signatures for a petition, flagging down a taxicab, selling newspapers, or soliciting donations for a nonprofit organization.”
Since one action leads to a criminal charge and the others do not, the law banning panhandling by homeless people can no longer be enforced, the court ruled.
The law “as currently written, must be invalidated in its entirety as violative of the First Amendment and art. 16. This conclusion in no way precludes the Legislature from amending the statute or from enacting another statute aimed at protecting public safety on or near public roadways, but it must do so in a way that does not impermissibly burden protected speech,” the court ruled.
The lawsuit was filed on behalf of two homeless men, John Correira and Joseph Treeful, arrested by Fall River police 43 times for panhandling on the city’s streets since 2018. Each has been incarcerated at least once for either not responding to a court summons or committing an alleged probation violation related to the statute, the Globe reported in September.
Reacting to the SJC ruling, Fall River Police Chief Jeffrey Cardoza urged the public to support charities in the Fall River area that provide assistance to homeless people. He also provided a link to an online listing of nonprofits.
“We will respect the court’s ruling,” the chief said. “I would suggest that if people want to help the homeless, they can donate to many of our local charities.”
A study of the interaction between homeless people and law enforcement conducted by the Howard Center for Investigative Journalism and the journalism program at Boston University found that 13 percent of arrests by Boston police last year involved homeless people. The study, published in the Globe, included arrests for panhandling along with other charges.
Attorney General Maura Healey, who as the state’s top lawyer usually defends state laws before the SJC, declined to do so because she questioned the law’s constitutionality, the Globe reported in September.
The two homeless men in the case were supported by the Massachusetts Coalition for the Homeless, the American Civil Liberties Union of Massachusetts, and the law firm of McCarter & English.
“The Supreme Judicial Court has emphatically declared that laws which target people who ask for charity are unconstitutional and a violation of civil rights and civil liberties,” Ruth Bourquin, managing attorney at the ACLU of Massachusetts, said in a statement. She said that since the SJC invalidated the law, police could face civil liability “if efforts to harass or charge these individuals continue.”
Kelly Turley, associate director of the Massachusetts Coalition for the Homeless, said the ongoing pandemic has increased homelessness. The SJC ruling can help those who need to turn to panhandling to get basic necessities like food.
“We are grateful for the decision and we think it’s especially time in the midst of the pandemic,” she said. “We see more and more families experiencing homelessness. . . . [Criminalizing panhandling] makes it harder for people to seek the resources they need.”
Bristol District Attorney Thomas M. Quinn III’s office concluded the law was flawed and dropped the charges against the two men, but also sought to keep a version of the law on the books, according to court records.