Narrator: SJC-12914, Massachusetts Coalition
For the Homeless, the City of Fall River.
-: Thank you, Mrs.Bourquin.
-: Thank you, your honor, may it please the court,
the Massachusetts Coalition For the Homeless
and two of its low-income members
who together have been charged by Fall River Police 43 times
for asking for contributions
for motorists, respectfully seek a declaration
that the statute at issue in this case
is facially unconstitutional,
because each of it's only three sentences, individually and
in combination violates four bedrock free speech principles.
First asking for contributions for one's own support
is constitutionally protected speech.
Second laws that differentiate on the basis of content
can not qualify as reasonable time place
and manner restrictions,
which is Fall River's primary argument fails.
Third laws that give government the power to grant
or withhold permission for free speech,
must contain clear standards to guide discretion
which the second and third sentences
this statute clearly lack.
And finally, and precisely because the first amendment
and article 16 are intended
to protect speech that may be unpopular.
A law that discriminates based on content
or the identity of the speaker is subject
to strict scrutiny, which the government
can not satisfy here
because the law is both under an over-inclusive
in relation to its stated purpose, which is traffic safety.
It is perhaps not surprising that this statute
in all seriousness is a law school exam where the example
of how to violate almost every free speech principle
in only three sentences.
-: Can I ask you a question?
I think the big issue that we'll get to in a moment
is whether or not this can be safe,
because given the complexion of the litigation,
I think that's where it leads us.
But before we get there, in order for it to be speech,
there has to be a public forum.
I get that in this statute is so broad,
it covers all highways and byways.
And obviously, you know, the, the local rotary
in Dorchester, State Street, Day Boulevard.
These are places where people, you know, hold signs
and protest, and that's certainly a public forum
as we recognize in the benefit case.
But what about in Bristol County?
But you know, a median strip on route 495.
If someone wants to protest out on a median strip
with cars whizzing by at 90 miles an hour, like they drive
on that highway, is that a public form?
-: Certainly on this record, it is your honor,
I direct the court to this 10th circuit, recent decision
in McCray versus Oklahoma city.
It's at nine 73 F third, 10 57, talking about streets
and mediums being public forums,
and that the burden is on the government
to show that there are particular places
where traffic safety may be an issue
that would justify a law that's narrowly tailored
to those particular places.
But here where the statute is,
it's both under an over-inclusive.
I would point out that the traffic safety
is not even an element of the crime here.
So for instance, people merely standing by-
-: The statutory scheme is in traffic enforcement right?
It's within the traffic safety laws.
-: It's within that statute runner.
But I like to point out this was enacted in 1930
which was a decade before the first amendment
was even applied to the States and a decade and a half
before article 16 was amended to protect free speech.
And from its beginning, it combined both conduct and speech
as interrelated elements of the crime.
And this court has made clear `
in Commonwealth versus the juvenile
and the Federal District Court in McLaughlin versus LOL
at page 193, relying on the Supreme court's decision R.A.V,
show made clear that where both the contact and the speech
are necessary elements of the crime,
even if the conduct could be prosecuted,
the speech cannot be.
-: So to ask my question, I guess what you're saying
is because the statute is so broad,
as far as highways and byways, it would have
to be incredibly narrow to exclude really dangerous.
-: Yes, your honor.
It's just, it's the statute is very much over broad because-
-: Okay, so we have protected speech, right?
And then there's no debate about that from either side.
And we have a statute that picks winners and losers
for speech, so that's bad, so we go to strict scrutiny.
All right, if I take the judicial meat Cleaver out
to the statute, can it be saved
-: With all due respect
your honor, we do not believe the statute can be saved.
And that's for multiple reasons.
First of all if we understand
the Commonwealth position correctly,
they're, at this court suggesting that the remedy
is merely to excise the word soliciting any Arms,
even though in a lower court, they admitted that
at least the entire clause solicit an Arm's contribution
or subscription was unconstitutional.
And even though plaintiffs here have never been charged
with seeking Arms, they, if you look at the records,
the state police records, the other records
in the record appendix they're charged
with soliciting monies, not either on snark contributions.
And this court in benefit, specifically described
what our clients is doing is seeking contributions.
So it's very clear
that at least that's part of the statute must go.
But then even the remaining part
of the statute, when you take
into account the constitutional, the first amendment
over breadth doctrine remains unconstitutional
in its entirety.
The bar on selling things by the side of the road,
which is something low-income people often do,
to try to help themselves make ends meet,
is still content-based, standard less
and not tied to traffic safety, again,
as discussed in our brief in our reply brief,
someone is charged merely for standing
by the side of the road with a sign
and not interrupting traffic whatsoever.
So that part of the statute could be brought
to someone could pull over safely to someplace
and get out and hand somebody a dollar
for a Rose, that doesn't interrupt traffic safety.
Yet that would be covered by this statute.
And finally, even if the court took out the Cleaver
and engaged in the quintessential legislative work
and the words of the court and Ramirez,
and took out the whole purpose-
-: And I'll let you finish but we have
a statutory obligation to save, we have a common law
and statutory obligation to save statutes when possible,
you know, when we look at general laws
chapter four, section six, we have to deliver.
And, you know we have lots of cases just
to swing one recently that says that
when possible we have to avoid unconstitutionality, right?-
-: And we do understand that your honor,
but we think it's not possible in this case
with all due respect, and that is because even
without the, for the purpose of clause,
then the statute which may be inconsistent
with legislative attempt,
because this is never the way the legislature wrote it.
But then it would say whoever signals causes the stopping
of, or boldly confronts a car can be charged with a crime.
And that would be wildly over broad.
Somebody could just be standing by the side of the road
with this political sign that would be subject to charge.
-: Do we criminalize anybody who essentially interferes
with traffic for any reason whatsoever?
-: It doesn't, it's broader, even that
because traffic interruption isn't an even requirement.
-: Mrs. Bourquin, just remind me
'cause we don't have a lot of briefing here,
I mean, the AG sort of tries to save this
in the last sentence of its brief.
When we take out the meat Cleaver in first amendment cases,
it's a different set of rules right,
than the severance doctrine outside of it.
Can you remind me what those rules are?
-: Yes your honor, given the over breadth doctrine
in the free speech context
there is much greater obligation on the court
to look at the statute as a whole
and not uphold a statute that is over broad.
And for the reasons I just said, this statute is over broad,
in every one of its elements,
and this court recognized in Ramirez,
which was a second amendment case
even there that to try to excise
and slice and dice the statute
will go beyond the judicial function.
And that wasn't even a case
where this free speech over breadth doctrine applied.
-: The the break on this,
is when we get past legislative intent, correct?
That's the breaking point.
-: Yes your honor, and I would point out again that in 1930,
this statute, the first sentence was enacted in 1930.
The legislature always saw the two things conjoined
the purpose of your speech and the fact
that you were signaling or causing to stop
or accosting, which merely means bold.-
-: Well in the legislative history,
I don't know if it was addressed all that comprehensively
but it was to basically make sure people weren't cheated
by people selling.
They wanted to regulate those that could sell on the road
and say we'll get to take care of our newspapers
but other than that, you have to register, correct?
-: Well, that seems to be the point.
And that's why we're not really contesting
that traffic safety can be considered
as the underlying asserted purpose here.
But the original act does give rise
to a question of whether that was really the purpose
as opposed to prohibiting certain kinds
of interactions with cars that people find annoying.
-: Yeah, protecting some merchants, essentially.
-: Yeah, and it's, you know,
it started out with the provision of that no one
could signal, et cetera, car.
Then the legislature next year pretty quickly realized
oops, we better let newspapers sell.
So they inserted a newspaper exception.
Then in 1978, they decided, oops
we better let some other people other than newspapers sell
regardless of whether they're signaling
and it's causing cars to stop.
And then in 1990 they realized, oh wait
we want non-profits.
But not individuals to be able to solicit charity
which this court recognized in benefit
is a viewpoint based discrimination.
I also wanna point out that all of those in every piece
of this statute was enacted prior to this court's decision
and benefit prior to the United States
Supreme court's decision in Reed V Gilbert
which made very clear the law
around content neutrality and the need for it.
There's been a number of these challenges
across the country, correct?
-: That's right, your honor.
And some of them are collected in that decision
from this year, from the 10th circuit
that I cited McCraw versus City of Oklahoma.
And it's clear that in spite of apparent desire
because of the unpopularity of this kind of speech, efforts
are continuing to try to restrict people's rights
to seek donations, but time and again,
the courts have struck them down.
And one of the things we're concerned about here is
that not withstanding that there've been 90 years worth
of jurisprudence since this statute was still was
while law enforcement keeps applying the statute
and local localities keep inactive versions of it.
In fact if you check the City of Pittsfield website
right now, the city council is considering enacting
this statute as a local ordinance right now,
and so one of the things that we would ask.-
-: I take it by that answer that you don't,
you're not a piece by the answer of the government
that well we'll just enforce it properly.
-: Well, your honor, it's very clear
this court said and bulldog and festers quoting USB Stevens
that we don't, in deciding the facial constitutionality
of the statute we do not take comfort
from individual governmental actors suggestions
that they will apply at responsibly.
And in fact, what we need is
with all due respect guidance from this court
about when there are statutes like this
that are been on the books for so long,
and the law has evolved so far since they first were enacted
that law enforcement and other officials have an obligation
to take into account that intervening law
in making their enforcement decisions.
-: Sorry, I don't understand what you're saying, mr.Bourquin,
I don't understand.
What are you talking about this statute?
Not on any of the sketchy, right?
-: Nope, yes, your honor.
I'm talking just
about this statute and referring back to the fact
that here the legislature perhaps could be forgiven
even that they enacted this so long ago
and before recent precedent was on the books,
but law enforcement each day, when they're deciding
whether or not to apply this statute,
should be taking into account the intervening law
in making their enforcement decisions.
They have the benefit of the benefit case
of the Reed vs Gilbert and of the many other cases
that are, have interpreted these laws to violate well
the first amendment and in our case, article 16 as well.
So we would add,
would hope that the decision could give some guidance
to local law enforcement about what to do in a situation
like this, where there is an old statute
that we submit is very clearly unconstitutional
and in its entirety yet still on the books
-: Can I ask you a question if I might?
I want to make sure I understand that you don't disagree
that traffic safety can be a compelling government interest.
-: We are not contesting that your honor
I will point out that the Supreme court
and Reed vs Gilbert cast doubt on that,
they assumed without, went out of their way to assume,
without deciding that traffic safety
was a compelling enough interest override free speech,
but we're not contesting that here.
We are taking the position that this statute merely does,
is not tailored sufficiently to serve that interest
because it allows so much traffic interruption
and would impede things that are not traffic interruption.
-: Okay, thank you.
-: Anything further from the spot.
Right, thank you counsel.
-: Thank you, your honor.
-: We'll hear from Mr. Casey.
Tim: Good morning, your honors.
And may it please the court,
Tim Casey Assistant Attorney General
for the Bristol County District Attorney Thomas Quinn.
Let me begin by your honors by apologizing.
I'm not sure why I'm not visible.
-: Do you have a thing over your camera?
-: I don't make so, so I'm not sure what's wrong
with my web camera, but I apologize.
I hope you can hear me okay.
-: You're okay.
Tim: Your honors the District Attorney acknowledges
as he has since the beginning of this litigation,
the proportion of the statute and issue in this case
is unconstitutional as a concept based restriction
of speech in so far as it imposes a fine
on those who stop or signal in a moving vehicle
or accost the occupant of the stopped vehicle
on a moving way.
If that conduct is undertaken for the purpose
of soliciting arms, so-called panhandling
while exempting the very same conduct
if undertaken for other purposes, such as selling newspapers
or seeking contributions for a nonprofit
with a permit, because the statute prescribes
or permits the same conduct dependent
upon the expressive purpose of that conduct.
This portion of the statute is unconstitutional.
-: Just the Arm portion?
Tim: Your honor yes.
-: If we have someone in front of you being prosecuted
for selling roses for a dog who's homeless,
and that person would would still be charged
for the crime, correct?
Tim: Well, your honor
I think it would be a different constitutional question.
I think the other portions of the statute
are regulations of commercial speech, speech
that proposes a commercial transactions.
-: Okay, let's get back to the charge you have
and the Taunton district court, right?
They call you and they say, we got this guy
who was caught selling roses for a buck,
and he doesn't have a permit
and you're allowed to sell the Totten Gazette
on the highway, but you're not allowed
to sell roses for a buck, is that a problem?
Tim: Your honor, if I think
that would be a different constitutional standard,
I think it would be,
that would be a regulation of commercial speech.
I can't speak to whether that on those facts
a case would be prosecuted.-
-: But that's a statute,
you want us to take a judicial rapier
I guess, on a meat Cleaver and get rid
of that one Arm's proportion to save the statute,
and I'm asking you about a content base winners
and losers scenario under this statute.
So is that constitutional?
Tim: Your honor, I think it would depend on
whether it survives the standard applicable
to commercial speech, which is typically considered a form
of intermediate scrutiny.
As you know, we assert that traffic safety
is a compelling governmental interest.
I don't think we'd cast any doubt on that.
It's simply assumed without deciding
that traffic safety
is a compelling governmental interest,
but that the regulation there
was not narrowly tailored to further that.-
-: If I drive by a rotary and there's a group
with MAGA hats on that's a beep, if you love Trump,
and then there's another group
with Biden Harris stickers saying,
Beep if you love Biden Harris
and then there's a black lives matter protest down the road
and asked me to stop and wave, is that okay?
'Cause that we just covered the one thing involved in Arms
Tim: Your honor, I think
that unless there's solicitation of, for a contribution
or a selling merchandise, then I don't think
that conduct is reached by the time.
-: But they're asking people to stop right, and wave.
-: Right.
-: The signal and motor vehicles
in a public way or the causing them to stop
Tim: But they are not doing so
for the purpose of soliciting of a contribution
or subscription or selling any merchandise.
-: I have a real just discussion you've done.
-: I'm perplexed, but done.
-: Yeah, the AG is not giving us much guidance here.
So Mrs. Bourquin's arguing
that the statute's unconstitutional on its face.
You're trying to save most of the statute
but I've got no legal analysis from you
on how we do that.
And the statute is clearly unconstitutional
in certain respects but don't you have
to provide us more here
or if we're gonna try to save this
'cause you're not giving us any legal analysis on this.
Tim: Well, your honor, that's because in part, many
of these arguments were raised for the first time
in the reply brief, we acknowledge that there was reference
to a facial challenge to the statute
or the statute being challenged on its face prior
to the reply brief, but there was no development
of any argument prior to the reply brief
about the over breadth doctrine,
about the commercial speech doctrine,
about reference in the reply brief to vagueness
in the standards to be used for issuing permits.
-: What do you want us to do declare
this statute unconstitutional
as applied and not do anything else?
I mean, that I can understand, it's sort of
you're giving us some analysis there
but I don't know how we say the statute
without any legal analysis.
Unless we're gonna do it by ourselves.
Tim: Well, your honor, that is what
we are asking the court to do to consider this
as an as applied challenge, we acknowledged and concede
that the statute as applied to the conduct
of these plaintiffs is unconstitutional
-: Is that how you based your argument in the past.
Is that how you understood the bill have below
as it was applied?
Tim: But I understood it.
We understood it to be a case
where the only conduct the plaintiff's alleged
to have engaged in was soliciting arms,
raising money for themselves.-
-: I'm pretty clear that it's thinking
through the entire statute on its face invalid, right?
Tim: Well, it is now
-: Just the question to you
which is why didn't you address this before
and help us if this is what you want?
Tim: Well, because our position is that it's enough
to resolve the case, to conclude
that it is unconstitutional as it is-
-: As applied and that's not what the question is, is it?
-: I mean again, I'm relying on nothing from the briefs
but it's really difficult when you do this type of analysis
in the first amendment context.
I just don't remember the rules.
I mean, I guess we can go back
and have a roadblock works, do all the stuff we normally get
in briefs, but it just seems difficult
for us to, in this argument much here
because this is really complicated stuff.
When you try to say parts of a first amendment statute
on a first amendment argument, isn't it?
Tim: It is your honor, but those
I would assert our reasons to decide the case narrowly
and on the basis of the conduct
that the plaintiffs themselves
are alleged to have engaged in.
We acknowledge that the first amendment
is a unique context, where there is an exception,
a limited exception, and just this, the ability
but as the Supreme court itself has acknowledged
over breadth is strong medicine.
It is to be employed as a last resort.
And I would like to make a couple of points
about over breath, even if the court reaches that issue
that counsel against its application in this case.
First, the Supreme court has stated a preference
for deciding cases on an as applied basis,
even in the first amendment context.-
-: Even when the brief from your opponents is an
on its face challenge where the us Supreme court says
we should convert them to as applied decisions.
And again, you may be right, I just don't have any analysis
on that except for my memory.
Tim: Your honor, well, let me read
from one Supreme court decision board of trustees,
of State University of New York against Fox.
-: Casey you're gonna need to get closer
to the microphone or your phone
Tim: I'm sorry your honors, this is board of trustees
of the State University of New York against Fox 492,
U.s 469, 445.
-: I'm I, sorry, give you that again,
you just had to send me a brief
Tim: It's not in the briefs your honor.
469 that means 484 to 485.
-: What year is that please?
Tim: 1989, it is not the usual,
this is from the Supreme court.
It is not the usual judicial practice
nor do we consider it generally desirable to proceed
on an overgrowth as you unnecessarily.
That is before it is determined that the statute
would be valid as applied, such a course would convert use
of the over breath doctrine
from unnecessary means of indicating
the plaintiff's own right not to be bound
by a statute that is unconstitutional
into a means of mountain gratuitous, wholesale attacks
upon state and federal models, thus for reasons related both
to the proper functioning of courts and to their efficiency.
The lawfulness of the particular application
of the law should ordinarily be decided first.
So, and then I would like to refer to the court to one
of its own decisions and bulldog investors,
which says that the over breath doctrine
is not applied in commercial speech
because the concern that speech will be killed
with and weaker in the case of a commercial speaker,
that's 469, 647 to 677 here, the other statute,
here the other conduct, or rather the other purposes
of the conduct that is regulated by the statute are
for the purpose of engaging in commercial transactions.
So they would be subject to the commercial speech doctrine.
And under this court's decision
in bulldog investors, which cites a number
of use cases, the over breath doctrine does not apply
to commercial speech restrictions.
-: That included time for include nonprofit organizations.
Tim: Well, if it is a speech
for the purpose of engaging in a commercial transaction
then I think it would be arguably
a commercial the regulation.
-: And I point out, of course
I have a question that's a slightly different question
which is a in footnote, one of your brief,
you pointed out the ambiguity
if who within the statute, I'm selling tickets
of admission to any game show or exhibition on quote.
I think that it's immaterial to the results here.
This is there a scenario in which you might be material
to whether the says was narrowly tailored
or was it only in the material
because there are other exemptions of play here?
Tim: Well, we asserted that it was immaterial
because the plaintiffs did not do not allege
that they engaged in that kind of conduct.
And so they were not subject
to that portion statute, which is part and parcel
of our argument that the court should confine its decision.
We are in in fact actually not asking the court
to rewrite the statute.
We are simply asking the court to confine its decision
to only that conduct that the plaintiffs are alleged to have
in that brings them within
the scope of the statute, specifically soliciting homes
or if you like contributions for themselves.
-: Can I ask I don't understand how the,
so if this is a public safety statute
and I don't understand why selling roses is less dangerous
than asking for money.
You're doing both in the street.
Why would, don't we have to all the content based aspects
of this have to be declared unconstitutional, don't they?
Not just the soliciting for yourself stuff
'cause everything, it just shows a complete inconsistency
about whether there's a public safety rationale here.
Tim: Yeah, your honor, I don't think that's quite right.
I don't think that read for example, displaces
or overrule the Supreme court's commercial speech case,
though I don't think in the commercial speech context
the fact that a law may treat different or similar types
of activity differently changes
the commercial speech analysis,
I think it is still a question of whether
there's an important governmental interest involved here.
There's clearly an important governmental interest
arguably a compelling governmental interest
and traffic safety.
And whether that regulation is reasonably related
to further that interest
-: You think it is?
Tim: Well, I think it would be far preferable
to develop those arguments through plaintiffs
with scamming to raise those claims and with evidence
and with full briefing and argument to go back
to a discussion that we were having earlier.
I think the fact that these arguments in these points
aren't developed in the cases of reason
not to each of these issues.
-: When was it you raised your position
about it being as applied cases opposed to asserted case,
when did you assert that?
Tm: We asserted it when we first stipulated
to and requested that the superior court enter judgment
declaring that the statute is unconstitutional.
Now Mrs. Bourquin identifies a slight distinction
in the portions of the statute
that we identified as unconstitutional.
I believe that before the superior court, we refer
to soliciting any owns or contribution, whereas in our brief
to this court, we focused on soliciting any Arms
but acknowledgement and request for a declaration
that the statute is unconstitutional was focused
on the portion that is applicable to these plaintiffs.
-: So you'd have about success
from the statute in other words
Tim: Yes.
-: So beyond his face, he says applied to these plaintiffs?
Tim: Your honor, we would ask that the portions
of the statute that prescribe soliciting Arms
or arguably contribution in far
as their contributions for oneself are unconstitutional.
-: Any further questions for Mr. Casey?
Thank you Mr. Casey, Thank you counsel.