New York Times

WASHINGTON — Begging is a crime in much of Worcester, Mass.

A city ordinance enacted last year banned “aggressive begging,” but it used an idiosyncratic definition of what counts as aggressive. It encompasses any begging — including silently asking for spare change with a cup or a sign — as long as it is within 20 feet of a bank, bus stop, pay phone, theater, outdoor cafe or anywhere people are waiting in line.

The Supreme Court has said asking for money is speech protected by the First Amendment. But in June, the federal appeals court in Boston rejected a challenge to the 20-foot buffer zones, saying they were justified by the unease that panhandling can cause.

A week later, the Supreme Court struck down a Massachusetts law that had established 35-foot buffer zones around the state’s abortion clinics, including one in Worcester. The court said the law, which banned counseling, protests and other speech near the clinics, violated the First Amendment.

There was a tension between the two decisions, and lawyers for the plaintiffs in the begging case asked the appeals court to reconsider its ruling in light of the abortion case. The appeals court turned them down.

The Supreme Court will consider on Jan. 9 whether to hear an appeal on the begging decision and bring some order and consistency to free speech in Worcester.

But there is an awkward element to the justices’ task. The author of the appeals court’s opinion was JusticeDavid H. Souter, who retired from the Supreme Court in 2009 but continues to hear the occasional case as a visiting appeals court judge.

His opinion, for a unanimous three-judge panel, addressed a challenge brought by a homeless couple, Robert Thayer and Sharon Brownson. They live under a bridge, according to a sworn statement from Mr. Thayer. “We rely on money we receive from strangers,” he said, “which on a good day might be $20 or $25.”

“I continue to stand on sidewalks with my sign,” Mr. Thayer said, “because I have no other way of making money to survive. I understand that I am risking arrest, but I have no other choice.”

Justice Souter said the ordinance was permissible because begging can create “serious apprehensiveness, real or apparent coercion, physical offense or even danger.” He had said much the same thing in a 2000 concurrence in Hill v. Colorado, a Supreme Court decision that upheld buffer zones around abortion clinics in Colorado.

Those buffer zones, Justice Souter wrote in 2000, shielded “people already tense or distressed in anticipation of medical attention (whether an abortion or some other procedure) from the unwanted intrusion of close personal importunity by strangers.”

But the Hill decision, which Justice Souter cited in his begging opinion, was undermined in June by the Supreme Court’s decision in McCullen v. Coakley, which struck down buffer zones around abortion clinics in Massachusetts.

Chief Justice John G. Roberts Jr., writing for the majority in McCullen, said public streets and sidewalks play a special role in First Amendment jurisprudence.

“Even today,” he wrote, “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 website. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out.”

In an interview, David M. Moore, Worcester’s city solicitor, said he had no quarrel with either of two fundamental points: that begging is speech and that speech must be allowed in public places.

“Solicitation in general is protected by the First Amendment,” he said.

“We recognize that the streets are places for free expression,” he added. “We’re not trying to squelch free expression. We’re trying to squelch aggressive conduct.”

Mr. Moore said the speech the Supreme Court allowed near abortion clinics did not involve such conduct. “That was extremely benign counseling,” he said.

Matthew R. Segal, a lawyer with the American Civil Liberties Union of Massachusetts, which represents the homeless plaintiffs, said the two kinds of buffer zones were quite different.

“The begging case is far easier,” he said. “There’s no clash of constitutional rights,” he added, referring to free speech and abortion.

In their Supreme Court brief, the plaintiffs accused Worcester of singling out poor people for censorship. “It is not unlawful to stand near a bus stop with a sign advertising a yard sale,” the brief said, “but it is a crime to tell others at the stop that you need money for food while holding out a collection cup.”

Vincent Flanagan, the executive director of the Homeless Empowerment Project in Cambridge, Mass., does not think much of the Worcester ordinance. He said it would devastate his group’s newspaper,Spare Change News, which is sold mostly by homeless people.

In a dense urban environment, he said, buffer zones cover all of the attractive places to ask for money.

“If Boston were to implement a Worcester ordinance and were to lay a template over the city,” he said, “it would literally eliminate every profitable location.”

The ordinance, he said, is part of a larger trend.

“Pure and simple,” he said, “people don’t want to be reminded that there are poor and homeless people in America.”