Anti-abortion protesters outside a Planned Parenthood in Massachusetts. Reuters/Dominick Reuter

A confluence of "buffer zone" cases has made Worcester, Massachusetts, a First Amendment battleground.

Worcester, Massachusetts: Home to a burgeoning biotech industry, a massive Americana collection at the American Antiquarian Society, and now, a fight over who gets to do what on city streets—one that’s become a circus of free-speech advocates, homeless activists, anti-abortion protestors, and more than a few federal judges.

It all began early last year, when the City of Worcester implemented its ban on “aggressive begging” in public spaces. Though the ordinance mostly targeted expressly antagonistic behavior—continuing to solicit after someone says “no,” using violent gestures, blocking someone’s passage—it also prohibited begging within 20 feet of a number of outdoor spaces, including café seating areas, ATMs, and bus stops, even if the solicitation only consisted of silently holding out a sign or cup for change.

In June, the ordinance withstood a challenge in a federal court of appeals. As David Souter, former U.S. Supreme Court justice and now occasional visiting appeals court judge, wrote in justifying the ban that one could “reasonably feel intimated or coerced by a persistent solicitation after a refusal, and can reasonably feel trapped when sitting in a sidewalk café or standing in line." “And even the stout-hearted,” he continued, “can reasonably fear assault when requests for money are made near an ATM.”

Souter argued that the ordinance did not unfairly burden the poor because “Girl Scout cookie sellers and Salvation Army bell-ringers are as much subject to the Aggressive Panhandling Ordinance as the homeless panhandler.”

Then, just a week later, another judge wrote a very different decision on a pretty similar case—this one out of Massachusetts, too. At issue was a 2007 state law that created a 35-foot buffer zone around abortion clinics, prohibiting anyone from standing or sitting in the area. The rule was targeted at anti-abortion activists, one of whom had, in 1994, entered two Brookline abortion clinics and shot two staff members dead. Massachusetts argued that the law was necessary to grant women full and safe access to their constitutionally supported right to an abortion. But the U.S. Supreme Court decided in a unanimous 9-0 decision that the law was unconstitutional. Chief Justice John Roberts wrote in his  opinion that the law overstepped the bounds of the First Amendment:

It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail[.]”

This is a lovely idea, and one that echoes the founding principles of new urbanism, which argue that vibrant, diverse, and open streets are at the heart of the American democratic project. But how do we reconcile Roberts’ vision of the street—full of uninhibited dialogue, occasionally uncomfortable but ultimately for the good of free speech—with Souter’s, full of potential aggressive violence from which people deserve measures of protection?

At the very least, this conflict creates a real enforcement problem for Worcester.

“In Worcester, the authorities are not enforcing buffer zones around abortion clinics, but they are enforcing hundreds or even thousands of buffer zones in the same city,” says Matthew Segal, legal director at the American Civil Liberties Union of Massachusetts, which is challenging the anti-begging ordinance in light of the U.S. Supreme Court’s June decision. “If the abortion buffer-zone law is unconstitutional under the First Amendment, then [the anti-begging ordinances] have got to be unconstitutional.”

In a case of strange political bedfellow-making, both the ACLU and anti-abortion activists have argued that the troublesome street aggressiveness targeted by both laws is already prohibited under existing federal, state, and local rules.  

Worcester officials, meanwhile, maintain that they’re within the bounds of the Constitution. “We recognize that the streets are places for free expression,” Worcester city solicitor David M. Moore told the New York Times Monday regarding the anti-begging ordinance. “We’re not trying to squelch free expression. We’re trying to squelch aggressive conduct.”

A court of appeals declined to take another look at its ruling on the begging case in light of the abortion buffer-zone decision. But the U.S. Supreme Court will consider whether to take up the Worcester ordinance on Jan. 9.

Meanwhile, many are defying Worcester’s rules. Four people were arrested in March 2013 alone, the anti-begging ordinance’s first month of enforcement, despite warnings from the police. “I continue to stand on sidewalks with my sign,” Robert Thayer, a homeless man who helped bring the case against the city, said in a sworn statement. “I have no other way of making money to survive. I understand that I am risking arrest, but I have no other choice."

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