The constitutionality of a state panhandling law that bans individuals from asking motorists for money will be up before the Massachusetts Supreme Judicial Court on Monday, and the case got its start in Fall River.

John Correira and Joseph Treeful were the subject of at least 43 criminal complaints during 2018 and 2019 after standing with signs saying they are homeless, and then accepting money from motorists. According to Fall River Police, the two repeatedly walked out into a highway offramp to oncoming motorists, obstructing traffic flow. In 2018 and 2019, around 150 complaints were filed against roadway solicitors, including Correira and Treeful, by members of the city police department under the law known as "Section 17A."

A case challenging the law on constitutional and civil rights grounds was brought in March of 2019 by the ACLU of Massachusetts. The case was filed on behalf of the two plaintiffs and the Massachusetts Coalition for the Homeless. It named the City of Fall River, the District Attorney of Bristol County, and former Fall River Police Chief Albert Dupere.

The law states in part that any person "soliciting any alms, contribution, or subscription" who signals, stops, or accosts the occupant of a vehicle stopped in traffic shall be punished by a fine of not more than fifty dollars. The law makes an exception for selling newspapers, and also lets people sell other items, including tickets to events, if they have a permit. Under the law, non-profit organizations are also allowed to accost motorists if they have a permit from the local police chief.

The Supreme Judicial Court only agreed to rule on the law after a Bristol Superior Court judge in April of 2019 temporarily enjoined Fall River Police and the District Attorney from enforcing it. While the City of Fall River defended its police practices, the DA's Office agreed to drop its roadside panhandling cases pending resolution. Meanwhile, the Massachusetts Attorney General's Office conceded the law was unconstitutional and said it would not defend it. That left police from across the state -- not just in Fall River -- with no overarching ruling on whether Section 17A is permissible under the U.S. and Massachusetts Constitutions.

In its current brief before the SJC, the ACLU argues that "content-based distinctions" in the governmental control of free speech are unlawful. They say that the "peaceful solicitation of charity for personal use" is constitutionally protected, and that content-based restrictions on free speech -- such as only banning certain people and certain messages  -- must serve a "compelling government interest." If "traffic safety" is the government interest, the law fails because people who are not seeking individual charity are allowed to engage with motorists.

"For example, one who simply stands by the side of the road holding a sign saying 'Homeless -- Please Help' can be subject to criminal charge, while someone standing by the side of the road, or indeed in the middle of the street, holding a sign saying 'Do Not Help the Homeless' cannot," reads the ACLU brief.

An attorney for the City of Fall River, Gary P. Howayeck, argues that 17A is not a blanket prohibition on panhandling, but rather a reasonable restriction on time, place, and manner of protected speech. The city argues that government may enforce a content-based exclusion on speech if the regulation is necessary to serve a compelling state interest -- namely, traffic safety.

Howayeck said Fall River police leave peaceful panhandlers alone, but that the two defendants "were observed to engage in the specific behavior of repeatedly walking out into the highway off-ramp to oncoming motorists, obstructing traffic flow and increasing traffic congestions despite numerous warnings to discontinue their illegal action."

The law, first passed in 1930, has had various provisions tacked onto it over time. The Fall River Police Department used the law to file more than 150 criminal complaints in 2018 and 2019, according to the ACLU.  The organization claims the decades-old law unfairly "criminalizes poverty."

The case is scheduled to be heard Monday, Nov. 1 at 9 a.m. via videoconference. SJC proceedings may be viewed online.

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