Thayer v. City of Worcester
144 F. Supp. 3d 218
D. Mass.2015Background
- In 2013 Worcester enacted two ordinances: R.O. ch. 9, § 16 (prohibiting “aggressive” begging/panhandling including a 20‑foot buffer and a ban from one-half hour before sunset to one-half hour after sunrise) and R.O. ch. 13, § 77(a) (prohibiting standing/standing on traffic islands or roadways except for limited lawful purposes).
- Plaintiffs (two frequent sign-holders who panhandle and a political candidate who campaigned from traffic islands) sued for declaratory and injunctive relief; prior preliminary‑injunction denials were partially appealed, remanded after Reed v. Town of Gilbert.
- The City justified the ordinances on public‑safety grounds, citing police reports of alleged aggressive panhandling incidents and concerns about interference with ATMs, entrances, queues, and risk on medians/traffic islands; City sought a citywide, categorical ban rather than targeted restrictions.
- The ordinances contain broad definitions of “aggressive” that sweep in passive solicitation (e.g., any solicitation within 20 feet of many locations; continuing after refusal; soliciting after dark). Ordinance 13‑77 bars virtually all pedestrian activity on traffic islands/medians except crossing or other lawful purposes.
- The court evaluated content‑based vs. content‑neutral analysis post‑Reed, considered First Amendment protection for solicitation and political speech, and examined narrow‑tailoring/least‑restrictive‑means under strict scrutiny (for content‑based laws) or intermediate tailoring for content‑neutral time/place/manner rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ordinance 9‑16 is content‑based | Thayer/Brownson: 9‑16 targets solicitation/requests for money (a type of speech) and thus is content‑based and must satisfy strict scrutiny. | City: ordinance regulates manner/conduct (aggression, safety) not message; aims at safety. | Court: 9‑16 is content‑based (post‑Reed); strict scrutiny applies. |
| Whether Ordinance 9‑16 survives strict scrutiny | Plaintiffs: ordinance is overbroad, not least restrictive—many provisions duplicate existing crimes or bar non‑threatening speech (20‑ft buffer; nighttime ban; other categories). | City: plausible compelling interest in public safety; incidents justify broad rules. | Court: fails strict scrutiny in entirety (including nighttime ban and 20‑ft/other categories); not least restrictive/narrowly tailored. |
| Whether Ordinance 13‑77 is content‑neutral and narrowly tailored | Novick: ordinance bans political campaigning and other protected speech on traffic islands/medians; overbroad and not narrowly tailored. | City: content‑neutral public‑safety regulation to prevent injury and traffic hazards on medians/islands. | Court: 13‑77 is content‑neutral but geographically and categorically overbroad; not narrowly tailored—invalidated in relevant provision. |
| Remedy / scope of relief | Plaintiffs sought summary judgment invalidating ordinances. | City sought summary judgment upholding ordinances. | Court: denied City summary judgment; granted plaintiffs’ summary judgment—Ordinance 9‑16 unconstitutional in entirety; specified provision of 13‑77 unconstitutional. |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (facial content‑based regulation of speech triggers strict scrutiny)
- Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620 (1980) (solicitation for charitable causes is protected speech)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content‑neutral time, place, manner restrictions must be narrowly tailored but need not be least restrictive)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (to survive strict scrutiny a speech regulation must be narrowly tailored/least restrictive means)
- Cutting v. City of Portland, 802 F.3d 79 (1st Cir. 2015) (median/traffic‑island ban imposing severe burdens on speech is geographically overbroad and not narrowly tailored)
- Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) (political speech on streets/medians is core First Amendment speech)
- United States v. Kokinda, 497 U.S. 720 (1990) (recognizing solicitation as a form of speech protected by the First Amendment)
- Benefit v. City of Cambridge, 424 Mass. 918 (1997) (state precedent recognizing solicitation as protected speech)