Mass. Coal. for the Homeless v. City of Fall River

486 Mass. 437

158 N.E.3d 856

MASSACHUSETTS COALITION FOR THE HOMELESS & others¹

v.CITY OF FALL RIVER & others.²

SJC-12914

Supreme Judicial Court of Massachusetts, Suffolk..

Argued November 2, 2020.

Decided December 15, 2020.

Ruth A. Bourquin for the plaintiffs.

Timothy J. Casey, Assistant Attorney General, for district attorney for the Bristol district.

Gary P. Howayeck, Assistant Corporation Counsel, for city of Fall River & another, submitted a brief.

Rajan Bal, of the District of Columbia, Eric S. Tars, of Pennsylvania, Andrew Nathanson, Susan M. Finegan, Emily Kanstroom Musgrave, Courtney Herndon, & Nana Liu, for National Homelessness Law Center, amicus curiae, submitted a brief.

Present: Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.³

LENK, J.

Under G. L. c. 85, § 17A, sometimes referred to as the "panhandling" statute, a person who signals to a motor vehicle on a public way, causes the vehicle to stop, or accosts an occupant of the vehicle "for the purpose of soliciting any alms, contribution or subscription or of selling any merchandise" is generally subject to criminal prosecution and a fine. The statute permits the same conduct when undertaken for other purposes, however, such as selling newspapers, and it specifically exempts activity that would otherwise fall within the statute's sweep if conducted by a nonprofit organization with a permit from the local chief of police. We conclude that G. L. c. 85, § 17A, is unconstitutional on its face under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution, because the statute is a content-based regulation of protected speech in a public forum that cannot withstand strict scrutiny.⁴

1. Background. Plaintiffs John Correira and Joseph Treeful are low income residents of the city of Fall River who are currently homeless; they are both members of the Massachusetts Coalition for the Homeless, an organization that provides social services and advocates on behalf of homeless individuals and families (collectively, the plaintiffs).⁵ In order to provide for their basic needs, Correira and Treeful sometimes stand by the side of public streets in Fall River with signs indicating that they are homeless, and they accept donations from passing motorists. They have done so in the past and intend to do so in the future.

During 2018 and 2019, Fall River police initiated a combined total of over forty criminal complaints against the two men, charging them with violation of G. L. c. 85, § 17A.⁶ Both men have been incarcerated as the result of such charges: Correira, for failing to respond to a summons on one of the complaints, and Treeful, for violating his probation on other charges by, allegedly, violating § 17A.

The plaintiffs commenced this action in the Superior Court against Fall River, its chief of police, several individual police officers, and the district attorney for the Bristol district, seeking declaratory and injunctive relief on the ground that G. L. c. 85, § 17A, violates their right to free speech under the State and Federal Constitutions. The plaintiffs also asserted violations of the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 11I, by the individual defendants.

Shortly thereafter, the plaintiffs filed a motion for a preliminary injunction to halt the enforcement of G. L. c. 85, § 17A. The district attorney voluntarily agreed not to enforce the statute during the pendency of the litigation, and after a hearing, the Superior Court judge issued a preliminary injunction as to the remaining defendants, enjoining enforcement of the statute.

The district attorney subsequently conceded that G. L. c. 85, § 17A, is unconstitutional insofar as it authorizes imposition of a fine for signaling, stopping, or accosting a motor vehicle or its occupants on a public way if undertaken for the purpose of panhandling, while exempting the same conduct if undertaken for the purpose of selling newspapers or raising money for a nonprofit organization. He filed a notice of consent to the entry of a declaratory judgment in favor of the plaintiffs on the first count of the complaint.

In response, the plaintiffs voluntarily dismissed their claims against the individual defendants for damages under the MCRA and joined with Fall River and the chief of police in filing a petition in the county court to have the declaratory judgment claim transferred there and then reserved and reported to the full court. The district attorney opposed the transfer, in part based on doubts that the case presented the requisite adversity for adjudication of a constitutional question.

After a hearing, a single justice of this court granted the petition for transfer and reserved and reported the case to the full court. The case before us consists of a single claim for a declaration that G. L. c. 85, § 17A, is unconstitutional on its face under the First Amendment and art. 16. As noted above, the district attorney concedes that the statute is unconstitutional, but disagrees with the plaintiffs as to the appropriate scope of the declaration. Fall River and the chief of police defend the constitutionality of the statute.

2. Discussion. "The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.’ " Reed v. Gilbert, 576 U.S. 155, 163, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). Article 16 of our Declaration of Rights provides analogous protections and, in some instances, provides more protection for expressive activity than the First Amendment. See, e.g., Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 201, 827 N.E.2d 180 (2005) (holding that art. 16 provides more protection for nude dancing than does First Amendment). Here, G. L. c. 85, § 17A, violates both the First Amendment and art. 16.

Some aspects of the First Amendment analysis require little discussion. First, "[i]t is beyond question that soliciting contributions is expressive activity that is protected by the First Amendment." Benefit v. Cambridge, 424 Mass. 918, 922, 679 N.E.2d 184 (1997). See United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), citing Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 629, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) ("Solicitation is a recognized form of speech protected by the First Amendment"); Riley v. National Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 788-789, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). In Benefit, this court specifically held "that there is no distinction of constitutional dimension between soliciting funds for oneself and for charities," and therefore, "peaceful begging constitutes communicative activity protected by the First Amendment." Benefit, supra at 923, 679 N.E.2d 184.⁷

Second, it is well settled that the State's "public way[s]" are "traditional public fora" for purposes of the First Amendment (citations omitted). McCullen v. Coakley, 573 U.S. 464, 476, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014). See Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) ("No particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora").

As this court observed in Benefit, "[t]he streets and public areas are quintessential public forums, not because they are a particularly convenient platform for expression, but because they are the necessary, essential public spaces that connect our individual private spaces, from which we may exclude others and likewise be excluded, but from which we almost all must inevitably emerge from time to time." Benefit, 424 Mass. at 926-927, 679 N.E.2d 184. And although assertions that peaceful begging or other forms of solicitation on public ways create a safety hazard may be relevant to the question whether a government regulation of such activity ultimately passes constitutional muster, such assertions "do not deprive public streets of their status as public fora." McCraw v. Oklahoma City, 973 F.3d 1057, 1068 (10th Cir. 2020).

Third, it is indisputable that G. L. c. 85, § 17A, in its current form is a content-based regulation subject to strict scrutiny. The United States Supreme Court has held that "[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." Reed, 576 U.S. at 163, 135 S.Ct. 2218. "Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny." Id. at 163-164, 135 S.Ct. 2218.

Here, G. L. c. 85, § 17A, is content based on its face because its restrictions "depend entirely on the communicative content" of the activity it regulates. Reed, 576 U.S. at 164-165, 135 S.Ct. 2218. More specifically, the conduct described in the statute (signaling to a vehicle, causing it to stop, or accosting one of its occupants) is only proscribed if it is done "for the purpose of soliciting any alms, contribution or subscription or of selling any merchandise" (emphasis added). G. L. c. 85, § 17A. The statute purports to carve out specific exemptions for the same conduct, however, when it is performed for other enumerated purposes, including selling newspapers and soliciting contributions on behalf of permitted nonprofit organizations.⁸ We need go no further to conclude that the statute is content based for purposes of a First Amendment analysis. See Benefit, 424 Mass. at 924, 679 N.E.2d 184 (holding that statute was content based on its face where it prohibited "communicative activity that asks for direct, charitable aid," while permitting similar...