In the past, cities have had trouble defending their anti-panhandling laws against legal challenges.
Framingham City Council passed an ordinance last week with the goal of stopping beggars from approaching cars, but it’s not like previous anti-panhandling laws which have been struck down.
Instead of restricting panhandling itself, the law limits pedestrian entry into roadways on most major roads in the city, making it illegal to walk along a road or get within five feet of a car if a sidewalk, island, median, or other such option is available.
Those who break the law would be subject to a $50 fine for the first offense, a $100 fine for the second, and a $300 fine for any subsequent offenses.
The law targets what city councilors have called “aggressive solicitation” on roadways, which they say is threatening public safety.
“Over the past year, there has been a dramatic increase in incidents of aggressive and unsafe solicitation that create public safety hazards, especially the aggressive solicitation of cars in traffic on major roadways throughout Framingham,” the Framingham City Council Ordinances and Rules Subcommittee wrote in a June 2022 letter to the larger council.
The new law has been signed by the mayor and goes into effect immediately, according to Framingham SOURCE, and was designed to withstand legal challenges that other Massachusetts cities’ attempts at restricting begging have not.
Back in 2015, both Lowell and Worcester tried to ban panhandling in certain public spaces, but both of the cities’ ordinances were struck down after the American Civil Liberties Union of Massachusetts (ACLUM) challenged them.
In Lowell’s case, it tried to ban begging entirely in its downtown district, as well as prohibit “aggressive panhandling”. But a federal judge deemed it unconstitutional under the First Amendment right to free speech.
Worcester tried to make panhandling illegal outside banks and theaters, outlaw “aggressive panhandling,” and make it illegal to stand or walk on a traffic island or roadway if you are not crossing. Again, the law was struck down under the First Amendment by a different federal judge.
Then, in 2020, a Fall River law which criminalized begging was challenged by the ACLUM, and was struck down by the state’s highest court for violating the right to free speech.
This led Brockton City Council to repeal a similar law earlier this year for fear it wouldn’t withstand legal challenges.
After proposing an initial ordinance with language much like the laws which had been deemed unconstitutional, Framingham City Council asked both their city solicitor and an independent legal group to evaluate their law.
Both the legal group and the city solicitor wrote back to the council saying that they didn’t think the law would withstand legal challenges based on the Lowell, Worcester, and Fall River rulings.
The problem, the lawyers said, is that these laws were “content-based,” meaning they targeted a particular type of speech, in this case, panhandling.
For such a law to withstand a legal challenge, they said, courts have ruled that cities must define a specific behavior which causes danger to the public and prohibit it in the least restrictive way. Additionally, they must show that current laws that would restrict dangerous behavior, such as assault, are insufficient for addressing the behavior.
In response, city officials crafted a new, “content-neutral” law they say addresses public safety issues with panhandling while applying the law equally to all pedestrians and maintaining the right to use medians and sidewalks.
“Please keep in mind that the proposed Median Safety ordinance may also be subject to challenge. However, it is markedly different than the solicitation ordinance and is intentionally limited in scope and specifically, narrowly tailored to address the public safety interests and issues at stake,” City Solicitor Kathryn Fallon wrote to the council in an Aug. 25 letter.
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Framingham passed an anti-begging law, but will it withstand legal challenges?