begging underground? the constitutionality of regulations...

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BEGGING UNDERGROUND? THE CONSTITUTIONALITY OF REGULATIONS

BANNING PANHANDLING IN THE NEW YORK CITY SUBWAY SYSTEM

Jordana Schreiber*

INTRODUCTION

Panhandling is ubiquitous in the New York City subway system. However, while panhandling has increased tremendously in recent years, so much so that one rarely steps onto a subway without hearing some sort of plea for money,1 it is surprising to learn that New York City bans panhandling in the subway.2

In September 1989, the Metropolitan Transportation Authority Board instituted regulations prohibiting begging and panhandling in the subways, but permitting solicitation for charitable, religious, or political causes as well as public speaking, distribution of literature, artistic performances for money, and other types of First Amendment expression.3 The regulation exists in this general form today.4 In 1990, the United States Court of Appeals for the Second Circuit in Young v. New York City Transit Authority5 found that the Transit Authority retained the constitutional right to regulate panhandling in such a manner. In particular, the Young court held that begging, unlike * Notes Editor, Cardozo Law Review. J.D. Candidate (June 2006), Benjamin N. Cardozo School of Law; B.A. University of Pennsylvania (2002). I would like to thank Professor David Franklin for pointing me in this direction; Professor Michael Herz and Professor Michel Rosenfeld for their insightful comments and suggestions; Aaron Wright, Melissa Bocci, Sara Klein, Philip Wellner, Wing Liang and especially Krista Thomas and Brian Bank for their advice, guidance, and superb editing; my family for their love, encouragement and overwhelming support; and finally, my husband, Judd Schreiber whose love and devotion inspire me every day. 1 See Clyde Haberman, Go Where the Money is: On the Subway, N.Y. TIMES, Sept. 7, 2004, at B1 (stating that panhandling in the subway has increased in recent months); see also Steven Kurutz, The Ballad of Sonny Payne, N.Y. TIMES, May 16, 2004 (discussing subway passengers’ familiarity with certain panhandlers who panhandle frequently). 2 N.Y. COMP. CODES R. & REGS. tit. 21 § 1050.6(b)(2) (2005) (“No person shall panhandle or beg upon any facility or conveyance.”). 3 Id. § 1050.6(c) (amended Sept. 18, 1989); see also Young v. New York City Transit Auth., 729 F. Supp. 341, 344 (S.D.N.Y. 1990). 4 See N.Y. COMP. CODES R. & REGS. tit. 21 §1050.6 (2005). 5 903 F.2d 146 (2d Cir. 1990).

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charitable solicitations, primarily constituted conduct and not speech, and therefore was not worthy of First Amendment protection.6

The Second Circuit decided Young when crime and illegal activity pervaded the subway system, transforming the need for passenger safety into a legitimate state interest.7 However, times have changed since the Second Circuit decided Young in 1990. First, many courts, including the Second Circuit itself, have held that begging constitutes constitutionally protected speech, and should receive the same level of constitutional protection that charitable solicitations receive.8 In addition, crime no longer runs rampant in the subway system, at least not to the level prevalent in 1990, bringing into question whether safety still represents a legitimate state interest.9

This Note examines what level of constitutional protection panhandling in the subway should receive today, in light of a changing environment in New York City subways and the circuit courts’ propensity to categorize panhandling as constitutionally protected speech that should receive the same protection as charitable solicitations. Specifically, this Note will argue that given the increased level of protection that panhandling receives, the statute as it currently exists is unconstitutional because it is a content-based restriction10 in a designated public forum11 that is not narrowly tailored to fit a compelling governmental interest. Once the government establishes that there exists a limited public forum for many forms of First Amendment expression, and for charitable solicitors in particular, it cannot arbitrarily exclude similar types of groups, such as panhandlers, absent a showing that the ban on panhandling is narrowly tailored to further a compelling governmental interest.12 This Note argues that Title 21, section 1050.6 of the Official Compilation of Codes, Rules & Regulations of the State of New York (Section 1050.6), in its present form, is unconstitutional because it is not narrowly tailored to further the compelling governmental interests of public safety and subway

6 Id. at 153. 7 See discussion infra Part I.B. 8 See discussion infra Part II.B. 9 See discussion infra Part I.B. 10 A content-based restriction on speech attempts to regulate “the ideas or information contained in the speech or its general subject matter.” Louis A. Modugno, Comment, Brother, Can You Spare a Dime?: The Panhandler’s First Amendment Right to Beg, 5 SETON HALL CONST. L.J. 681, 703 (1995); see discussion infra Part III.C. 11 Under the “public forum doctrine” of First Amendment activity, a designated public forum consists of property which the government opens for public use as a place for expressive activity. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see discussion infra Part III.A and B. 12 The ban on panhandling is categorized as a content-based regulation, and the court must pass a strict scrutiny test in order for the regulation to be constitutional. See discussion infra Part III.B.

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efficiency.13 This Note will further argue that the Transit Authority should instead allow panhandling in the same areas of the subway system where it currently allows charitable solicitation and other forms of First Amendment expression, but ban aggressive panhandling throughout the subway system.

Part I of this Note discusses the social background and the basis upon which the Second Circuit decided Young. Part II looks at recent court decisions that have elevated the level of constitutional protection that panhandling receives to the level of protection that charitable solicitations receive. Part III explores why the Transit Authority’s prohibition on panhandling is unconstitutional in its current form. Finally, Part IV argues that the Transit Authority should allow panhandling in areas of the subway where it currently allows charitable solicitations, yet should ban aggressive panhandling throughout the subway system.

I. BACKGROUND: A LOOK AT YOUNG V. NEW YORK CITY TRANSIT

AUTHORITY14

A. Facts and Procedural History of Young

Before September 1989, Transit Authority Rules prohibited any person, unless “duly authorized” by the Transit Authority, from soliciting “upon any facility or conveyance . . . alms, subscription or contribution for any purpose.”15 The Transit Authority revised the rule in 1989, adding a provision that authorized certain non-transit uses of the subway. These non-transit uses included public speaking, distribution of written materials, charitable, religious or political solicitations, and artistic performance.16 The rule subjected these authorized, non-transit uses to specific time, place, and manner restrictions.17 However, the Transit Authority still banned all begging or panhandling in the subways.

13 See discussion infra Part III.C. 14 903 F.2d 146 (2d Cir. 1990). 15 N.Y. COMP. CODES R. & REGS. tit. 21 § 1050.6(b) (1976) (amended Sept. 18, 1989). 16 Id. §1050.6(c). 17 Id. §1050.6(c)(1)-(7). For a full description of the regulations, see Young v. New York City Transit Auth., 729 F. Supp. 341, 344-46 (S.D.N.Y. 1990). Specifically, N.Y. COMP. CODES R. & REGS. tit. §1050.6(c)(1)-(3) (1989) states that solicitation for charities, religious, or political causes were prohibited “on subway cars, in areas not generally open to the public, within twenty-five feet of a token booth or fifty feet from the entrance to an authority office or tower,” in any “location which interferes with access onto or off an escalator, stairway or elevator,” and “on a subway platform while construction, renovation or maintenance work is actively underway on or near the platform.”


In October 1989, the Transit Authority began an information campaign called “Operation Enforcement,” a program designed to more effectively implement the prohibition on begging and panhandling in the subway.18 At the time that the Transit Authority instituted the anti-panhandling ordinance, William Young and Joseph Walley, two homeless men, panhandled in the subways of New York.19 Transit police told Young and Walley that they could no longer panhandle pursuant to this new law.20 Although plaintiffs Young and Walley saw posters and pamphlets from the Operation Enforcement program, they continued to panhandle even when police requested that they either stop doing so or leave the subway system.21

In November 1989, the Legal Action Center for the Homeless,22 on behalf of itself, William Young, Joseph Walley, and a class comprised of all homeless or needy people who expected to panhandle in subways,23 challenged the constitutionality of the New York regulation under the First Amendment of the United States Constitution.24 The United States District Court for the Southern District of New York heard three oral arguments, and urged plaintiffs to challenge additional statutes and add defendants.25 Ultimately, the district court held that begging is a form of protected speech on equal footing with charitable solicitations, as established in the Schaumburg trilogy.26 The district court further held that by virtue of the 1989 revisions to Section

18 Young, 903 F.2d at 149. At the beginning of enforcement the Transit Authority distributed 1.5 million pamphlets summarizing eleven rules, including “No panhandling or begging.” Id. These rules were also displayed on 15,000 posters dispersed throughout the subway system. Id. 19 Id. 20 Id. 21 Id. 22 The Legal Action Center for the Homeless is a not-for-profit organization that provides various legal and social services to the homeless. Young v. New York City Transit Auth., 729 F. Supp. 341, 345 n.2 (S.D.N.Y. 1990). 23 Id. at 345. 24 U.S. CONST. amend. I states: “Congress shall make no law . . . abridging the freedom of speech.” 25 Young, 903 F. Supp. at 150-52. The District Court urged plaintiffs to challenge N.Y. PENAL LAW § 240.35(1) (McKinney 2005), which provides that “a person is guilty of loitering when he . . . [l]oiters, remains or wanders about in a public place for the purpose of begging.” Young, 903 F. Supp. at 151. The district court also invited the Attorney General’s office to intervene in the case. The Attorney General declined the invitation. The district court then instructed the plaintiffs to name the Attorney General as a defendant in the case. At a third oral argument, the court advised the plaintiffs to add all twelve commissioners of the Port Authority as defendants. Furthermore, the district court advised that the plaintiffs reclassify the representative class as “all needy people” who live in New York State instead of as “homeless.” Id. 26 Young v. New York City Transit Auth., 729 F. Supp. 341 (S.D.N.Y 1990). The Supreme Court explicitly extended First Amendment protection to a professional fundraiser’s activities in Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980), Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) and Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988). These three cases became popularly known as the “Schaumburg Trilogy.” See discussion infra, Part II.A.


1050.6(b) and (c), the New York City Transit Authority created a designated public forum, requiring analysis under the strict scrutiny test of Perry Education Association v. Perry Local Educators’ Association.27 This strict scrutiny test requires that content-based restrictions on protected speech in traditional or designated public fora serve a compelling state interest and be narrowly drawn to achieve that end.28 In Young, the district court held that the ordinance at issue was not narrowly tailored to serve the government’s interest in protecting the public from harassment and intimidation, and also held that the rule covered not only aggressive panhandlers but also benign forms of panhandling, and thus was unconstitutional.29

The Second Circuit reversed the district court’s ruling on appeal.30 Unlike the district court, the Second Circuit held that begging was primarily conduct and not speech protected by the First Amendment.31 The court found that panhandling conveyed too little information to merit protection of the First Amendment.32 For conduct to receive constitutional protection, it must convey a particularized message with a great likelihood of the message being understood by those viewing the conduct.33 The Second Circuit stated that most individuals who beg do so not to convey a particularized message, but merely to collect money.34 Even if a particularized message does exist, the court concluded that subway passengers who witness panhandlers’ “conduct” will be unlikely to understand the panhandler’s particularized message because of the insecurity and uneasiness caused by the panhandler’s approach.35 The Second Circuit noted that the only message common in panhandling, the desire for money, did not coincide with the First Amendment’s underlying values.36 The court distinguished 27 460 U.S. 37 (1983); see also Young, 729 F. Supp. at 357. See infra note 121 for a full list of N.Y. COMP. CODES R. & REGS. tit. 21 §§ 1050.6(b) & (c). 28 Perry, 460 U.S. at 45. 29 Young, 729 F. Supp. at 359. 30 Young, 903 F.2d at 148. 31 Id. The Second Circuit relied on Texas v. Johnson, 491 U.S. 397 (1989), to indicate that any form of conduct may be categorized as speech when the expressor intends to convey any sort of idea. The court warned that “the Government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.” Id. at 153. 32 Id. at 154. 33 Spence v. Washington, 418 U.S. 405, 410 (1974) (displaying a flag bearing a peace symbol is likely to be understood in its time and context as a protest against the Vietnam War. However, outside of this context, it would not be seen as conveying a particularized message). For further discussion of the “speech/conduct dichotomy,” see Stephanie M. Kaufman, Note, The Speech/ Conduct Distinction and First Amendment Protection of Begging in Subways, 79 GEO. L.J. 1803, 1820-21 (1991). 34 Young, 903 F.2d at 153. 35 Id. at 153-54. 36 Id. at 154. This raises the question of whether panhandling may be characterized as commercial speech, a type of speech “primarily concerned with providing information about the characteristics and costs of goods and services.” Vill. of Schaumburg v. Citizens for a Better


panhandling from charitable solicitations by stating that charitable solicitations impart a social or political message to the public while panhandling is merely someone asking for money to meet his own needs.37 The Second Circuit recognized that panhandlers’ generic message of acquiring money falls “far outside the scope of . . . the First Amendment.”38

Though the Second Circuit held that panhandling constituted conduct and not speech, the court continued its constitutional analysis as to whether the Transit Authority may properly regulate panhandling in the subways, given that the distinction between speech and conduct may appear blurred.39 The Second Circuit, applying the O’Brien standard,40 determined that the Transit Authority may regulate panhandling under Section 1050.6. As part of this analysis, the court concluded that a legitimate state interest in passenger safety existed.

B. Understanding Why the Second Circuit Upheld an Anti-

Panhandling Statute in Light of Prevailing Conditions at the Time

The atmosphere and climate of New York City subways at the time

the Second Circuit decided Young played an essential role in the Second Circuit’s decision to uphold Section 1050.6. At that point in time, New York City subways suffered from high crime rates that made transit safety a particular concern for both the city and the judicial system.41 The Second Circuit heavily cited a study conducted by the Transit Env’t, 444 U.S. 620, 632 (1980). See generally Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165, 1229-30 (1996) (discussing the possibility of treating panhandling as commercial speech). Though panhandling does not involve a good or service, its underlying economic motivation may warrant a categorization of commercial speech. Commercial speech has traditionally not received strong First Amendment protection. White v. Samsung Elec. Am., Inc., 989 F.2d 1512, 1590 (9th Cir. 1993) (“Commercial speech may be less protected by the First Amendment than noncommercial speech, but less protected means protected nonetheless.”). Yet this level of protection has arguably increased in the past few years. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 575 (2001) (Thomas, J., concurring). Justice Thomas expressed “doubt whether it is even possible to draw a coherent distinction between commercial and noncommercial speech.” Id. 37 Young, 903 F.2d at 153-54. Though a request for alms may lead to an exchange of protected speech, this was irrelevant to the Second Circuit. “[T]he object of begging and panhandling is the transfer of money. Speech simply is not inherent to the act; it is not of the essence of the conduct.” Id. at 154. 38 Id. at 154. 39 Id. 40 The O’Brien standard is applied to content-neutral regulations. See discussion infra Part IV.B.1. 41 MALCOLM GLADWELL, THE TIPPING POINT: HOW LITTLE THINGS CAN MAKE A BIG DIFFERENCE, 140-51 (2002).


Authority examining the quality of life problems experienced by subway riders and their use of the subway.42 This consisted of a research survey revealing that two-thirds of subway riders faced intimidation by beggars eager to obtain money, resulting in an overall feeling of unease, harassment, and intimidation.43 Finally, the court cited evidence that panhandling tends to generate fear in passengers, which in turn discourages use of the system.44 The report specifically focused on how panhandling in subways threatened passengers more than panhandling on city streets, because in the subway system one cannot move around freely and often feels less in control of his surroundings.45

In addition to research concerning the safety of the subway, the Second Circuit described how further research indicated that the homeless population in subways generally consisted of males suffering from mental illness, alcohol, and/or drug abuse.46 As a result, the researcher advised prohibiting this particular group of homeless people from panhandling in the subway system.47

The infamous Goetz shooting incident also likely influenced the Second Circuit’s decision in Young, as the controversy gained world-wide notoriety even across the Atlantic.48 Although decided four years 42 George Kelling, a prominent criminologist during the 1980s, was the person in charge of this study. Young, 903 F.2d at 149-50. George Kelling and James Q. Wilson developed the “Broken Windows” theory, which states that if a window is broken and left unrepaired, passersby will conclude that no one cares and no one is in charge. GLADWELL, supra note 41, at 140-51. Under this theory, Wilson and Kelling argued that crime is the result of disorder. Id. For instance, relatively minor problems in a city such as graffiti, public disorder, and aggressive panhandling lead to more serious crimes. Id. Therefore, Kelling advised the New York Transit Authority to crack down on smaller crimes in order to ultimately inhibit serious crimes. Id. (However, instead of merely regulating aggressive panhandling, the Transit Authority banned panhandling altogether). The court explained in Young that Kelling’s was one of the studies that led to the panhandling ban in the subways. Young, 903 F.2d at 149-50. In addition, when the court holds that a legitimate state interest exists in public safety, it quotes conclusions from Kelling’s study. Id. at 158. 43 Young, 903 F.2d at 149. The Transit Authority’s study also recounted a report by a Transit Authority detective on citizens and passengers’ perceptions of panhandling in the subways. Id. The detective found that subway riders expressed concern about subway panhandlers, because passengers felt that panhandlers harassed and intimidated them. Id. 44 Id. 45 Id. at 149-50. 46 Id. at 150. 47 Id. The reasoning behind Kelling’s advice was that allowing this subset of people to continue panhandling would endanger “their own well-being.” Id. 48 See, e.g., Terry Coleman, Terry Coleman in New York: The Worm Inside the Rotten Apple, GUARDIAN (London), Aug. 9, 1985. In this article, a British reporter writing about his experiences in New York stated that a poll in 1985 showed that “twice as many people had heard of Bernard Goetz, who shot four would-be muggers on the subway, than had heard of Mario Cuomo, Governor of New York State and a favourite for the next Democratic presidential nomination.” Id. As further explanation for the decision in Young, crime in New York City subways in 1990 was rampant, and many people supported the vigilante route of self-defense demonstrated by Bernard Goetz. Michael Hedges, A Sense of Menace: New York Liberals ‘Cross


earlier, the acquittal of Bernard Goetz prominently remained on the minds of New Yorkers. In December of 1984, four African American teenage males approached Bernard Goetz, a war veteran, on a New York City subway.49 When one of the youths said, “give me five dollars,” Goetz responded by rising, pulling out a .38 caliber pistol and shooting each of the teenagers.50 Though Goetz claimed self defense, the fact that he fired shots while not in imminent danger seriously weakened his claim.51 Public opinion was divided, however, with some finding Goetz’s display of unabashed violence justified in light of the exorbitant amount of subway crime.52 Some even lauded Bernard Goetz as a hero, while others viewed him as a menace.53 The Goetz incident, regardless of one’s opinion, highlighted the epidemic crime problem in the subways.54

However, since 1991, New York City has undergone a dramatic transformation, especially in terms of crime. The crime rate has diminished dramatically,55 decreasing seventy-five percent over the last twelve years.56 In addition, homicides in New York City in 2004 have Line,’ WASHINGTON TIMES, Apr. 23, 1990, at A1. 49 People v. Goetz, 68 N.Y.2d 96, 100 (N.Y. 1986). 50 Id. 51 Id. In order to assert a claim of self defense, one must establish that he was in imminent danger of serious bodily harm at the time that he committed the action. N.Y. PENAL LAW §35.05 (McKinney 2005). 52 Stanley Crouch, The Joy of Goetz, NEW YORK MAGAZINE, Apr. 7, 2003, available at http://www.newyorkmetro.com/nymetro/news/anniversary/35th/n_8601/index.html (discussing different perceptions of Bernard Goetz in light of the amount of crime that existed during the time the Goetz incident took place). 53 Id.; THE FREE DICTIONARY, http://encyclopedia.thefreedictionary.com/Bernhard% 20Goetz (last visited January 28, 2005) (discussing the Goetz incident and the overall reaction to it). On the television program Geraldo (television broadcast, Apr. 23, 1996), panelists discussed whether they viewed Goetz as a hero or as a threat to society. The transcripts indicate that opinions on both sides were decidedly strong. 54 Bernard Goetz seems to have set the benchmark for vigilantism arguments to measure up against. See, e.g., Patricia Hurtado & Clem Richardson, Gun Charge for Victim in B’klyn Robbery Try, NEWSDAY, Apr. 1, 1990, at 20 (discussing a Brooklyn woman who used an unlicensed pistol to shoot her assailants in an attempted robbery; the article compares her to Bernard Goetz); Maria Laura Avignolo, Killer Becomes Argentine Hero, SUNDAY TIMES, July 8, 1990, at Overseas News (discussing Argentine man who killed burglars stealing a car radio and was lauded as a hero and compared to Bernard Goetz). 55 Mayor Giuliani and police officials initiated a campaign to curb minor infractions in the city’s subway system and on New York City streets as a means of deterring more serious criminal behavior. See, e.g., Jackson Toby, Reducing Crime: New York’s Example, WASHINGTON POST, July 23, 1996, at A17. 56 Wikipedia, the Free Encyclopedia, New York City, http://en.wikipedia.org/wiki/ New_York_City#Crime (last visited January 13, 2006). New York City subway homicides had increased from 1989 to 1990, the year the Second Circuit decided Young. Donatella Lorch, Record Year for Killings Jolts Officials in New York, N.Y. TIMES, Dec. 31, 1990, at 27; see also Sewell Chan, Subway Crime Rose Slightly in 2004, Police Data Shows, N.Y TIMES, Jan. 31, 2005, at B4 (stating that even though crime increased slightly in New York City subways from 2003 until 2004, the number of major crimes committed in the subways has fallen by nearly half since 1997).


sunk to levels not seen since the early 1960s—a forty year low.57 This decrease in crime draws into question the Second Circuit’s rationale in Young, undermining the court’s claim that safety in the subways may still serve as a legitimate state interest.

II. RECENT COURT DECISIONS GRANT PANHANDLING GREATER

CONSTITUTIONAL PROTECTION THAN YOUNG

In addition to a decrease in New York City’s crime, various circuit courts, including the Second Circuit, have expanded the constitutional protection given to panhandling.58 Today, most courts agree that panhandling should receive the same level of constitutional protection as charitable solicitations.59

A. Charitable Solicitation Theory

Since the Supreme Court has not decided the constitutional

limitations of panhandling, Supreme Court decisions regarding the similar area of charitable solicitations provide guidance when analyzing the constitutionality of government regulations banning or restricting panhandling. Repeatedly, the Supreme Court has held that the right to solicit funds through personal encounters between solicitor and contributor constitutes protected speech under the First Amendment.60 Village of Schaumburg v. Citizens for a Better Environment61 represents the leading case determining the level of constitutional protection that organized charities should receive. In Schaumburg, the Court considered a local prohibition on solicitation by charities that failed to use a certain percentage of their contributions for charitable purposes.62

57 Wikipedia, the Free Encyclopedia, New York City, http://en.wikipedia.org/wiki/ New_York_City#Crime (last visited January 13, 2006). 58 See Loper v. New York City Police Dep’t, 999 F.2d 699, 702 (2d Cir. 1993) (holding that panhandling in New York City streets and parks is constitutionally protected speech on par with charitable solicitations); Gresham v. Peterson, 225 F.3d 899, 904 (7th Cir. 2000) (“The Court’s analysis in Schaumberg suggests little reason to distinguish between beggars and charities in terms of the First Amendment protection for their speech.”); Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999) (“like other charitable solicitation, begging is speech entitled to First Amendment protection”) (citing Vill. of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980)). 59 Loper, 999 F.2d at 702, Gresham, 225 F.3d at 904, Smith, 177 F.3d at 956. 60 See Riley v. Nat’l Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781, 789-90 (1988); Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 959-60 (1984); Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 633 (1980). 61 444 U.S. 620 (1980). 62 Id. at 622.


The Court first determined that First Amendment protection extends to solicitations by organized charities.63 The Court then found that charities often engage in core First Amendment speech while soliciting donations and worried that without this protection, discussion of social, economic, and political topics would be greatly inhibited.64 Therefore, solicitations by organized charities falls within First Amendment protection.65

The Court affirmed its holding and extended First Amendment protection to charitable solicitation in Secretary of State of Maryland v. Joseph H. Munson, Co.66 and Riley v. National Federation of the Blind.67 In Munson, the Court struck down a Maryland statute prohibiting a charitable organization from paying expenses connected to its fundraising activity with more than twenty-five percent of the total amount raised.68 The Supreme Court held that the statute encroached upon the charity’s First Amendment rights.69 In Riley, the Court found a statute, which compelled professional fundraisers to disclose to potential donors the average percentage of their gross receipts turned over to the charities (for which they collected donations), unconstitutional because it unduly burdened constitutionally protected speech.70

While Schaumburg and its progeny established broad constitutional protections for charitable solicitations, the Second Circuit ignored the precedent set by this line of cases when deciding Young. In Young, the court distinguished Schaumburg to establish the difference between solicitation by public charities and by panhandlers on two grounds. First, the Transit Authority indicated that regulating organized charitable solicitors in the subways posed fewer problems than

63 Id. at 632. 64 The court in Schaumburg stated that:

Prior authorities . . . clearly establish that charitable appeals for funds, on the street or door to door, involve a variety of speech interests—communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes—that are within the protection of the First Amendment. . . . [S]olicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on . . . social issues, and . . . without solicitation the flow of such information and advocacy would likely cease.

Id. 65 Id. See generally John T. Haggerty, Note, Begging and the Public Forum Doctrine in the First Amendment, 34 B.C. L. REV. 1121, 1140 (1993) (discussing the Schaumburg Trilogy). 66 467 U.S. 947 (1984). 67 487 U.S. 781 (1988). 68 See Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 969-70 (1984). 69 See id. at 962-63, 970. 70 See Riley v. Nat’l Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781, 799-800 (1988).


controlling individual beggars.71 The second distinction related to the status of panhandling and charitable solicitation as protected speech.72 In Young, the court stated that organized charities differed from panhandlers in that organized charities “serve community interests by enhancing communication and disseminating ideas,” while “begging and panhandling in the subway amounts to nothing less than a menace to the common good.”73 The court also quoted Chief Justice Rehnquist’s dissent in Schaumburg for the proposition that “[n]othing in the United States Constitution should prevent residents of a community from making the collective judgment that certain worthy charities may solicit . . . while at the same time insulating themselves against panhandlers, profiteers, and peddlers.”74

However, other courts have failed to follow the logic employed by the court in Young, granting panhandlers the same expansive protections as charitable solicitations. For example, in Blair v. Shanahan,75 the United States District Court for the Northern District of California rejected the “precedent” set by Young, striking down a California anti-panhandling ordinance by claiming that it violated the First and Fourteenth Amendments.76 The court stated that no significant distinction existed between panhandling and charitable solicitations for First Amendment purposes because panhandling potentially promoted the same speech values that entitle charitable solicitations to constitutional protection.77

71 Young v. New York City Transit Auth., 903 F.2d 146, 155-56 (2d Cir. 1990). First, the Second Circuit stated that subway passengers did not perceive charitable solicitations to be as threatening or intimidating as they perceived panhandlers. Id. at 156. Moreover, the Second Circuit stated that the “harmful effects” posed by panhandling were distinguishable from the “First Amendment interests” that solicitation by organized charities presented. Id. Finally, the court concluded that restricting organized charities to particular areas of the subway system was sufficient to deal with potential problems caused by organized charities, whereas the only way to deal with the problems caused by panhandling was a “total ban.” Id. 72 Peter Nichols, The Panhandler’s First Amendment Right: A Critique of Loper v. New York City Police Department and Related Academic Commentary, 48 S.C. L. REV. 267, 286 (1997). 73 Young, 903 F.2d at 156. 74 Id. (quoting Vill. of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 644 (1980) (Rehnquist, C.J., dissenting)) (second alteration in original). 75 775 F. Supp. 1315 (N.D. Cal. 1991). Although this case was overturned on procedural grounds by the Ninth Circuit in Blair v. Shanahan, 38 F.3d 1514 (9th Cir. 1994), the court’s reasoning in Blair resonates with the Second Circuit’s reasoning in Loper v. New York City Police Department, 999 F.2d 699 (2d Cir. 1993), discussed infra. 76 Blair, 775 F. Supp. at 1322. The statute at issue in Blair stated that anyone “who accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms” is guilty of a misdemeanor. Id. at 1317 n.1. 77 Id. at 1322-23. The court recognized that “[a] request for alms clearly conveys information regarding the speaker’s plight. Begging gives the speaker an opportunity to spread his views and ideas on, among other things, the way our society treats its poor and disenfranchised.” Id.


B. The Second Circuit Reevaluates Panhandling’s Constitutional

Protection

In 1993, as a reaction to Blair, the Second Circuit again addressed the issue of panhandling in Loper v. New York City Police Department,78 narrowing its decision in Young. In Loper, the Second Circuit found panhandling in city streets and parks constitutionally protected communicative conduct, since city streets and parks should be classified as a traditional public forum.79 Loper implicated New York Penal Law section 240.35(1), which banned begging in public places. The Second Circuit ruled that the statute was an unconstitutional violation of the First Amendment because it was neither content-neutral nor narrowly tailored.80 Therefore, the court concluded, such a law could not be justified as a proper time, place, or manner restriction on protected speech.81

Notably, Loper avoided the question of whether panhandling constituted conduct or speech, although it acknowledged that either characterization could exist. The court stated that “[i]n [Young] we ‘wondered’ whether the beggars’ ‘conduct is not divested of any expressive element as a result of the special surrounding circumstances involved in’ begging in the subway, but we did not rest our decision ‘on an ontological distinction between speech and conduct.’”82 In Loper, however, the court held that a beggar accosting passersby usually conveyed a “particularized social or political message,” thus requiring First Amendment protection.83 Moreover, in Loper, unlike in Young, the Second Circuit failed to see a distinction between solicitation for a charitable or political organization and solicitation by beggars on a street corner.84

78 999 F.2d 699 (2d Cir. 1993). The Second Circuit cited Blair, 775 F. Supp. at 1322, when it acknowledged that there is no significant distinction between charitable solicitations and panhandling for First Amendment purposes. Loper, 999 F.2d at 704. 79 Loper, 999 F.2d at 703-04. The Court in Loper held that, unlike the subway system, “[t]he sidewalks of the City of New York fall into the category of public property traditionally held open to the public for expressive activity.” Id. at 704. 80 Loper, 999 F.2d at 705. See discussion regarding content-neutral and content-based restrictions infra, Part III.C. 81 Loper, 999 F.2d at 705. 82 Id. at 702. Stephanie Kaufman argues that the speech/conduct distinction employed by the Second Circuit in Young is “unworkable” and “too restrictive.” Kaufman, supra note 33, at 1821. To do so, she argues, “assumes platonic ideals of speech and conduct when, in fact, much speech is accompanied by action.” Id. 83 Loper, 999 F.2d at 704. 84 Id. at 704-05. “We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed.” Id. at 704.


Decisions by other circuit courts following Loper also failed to distinguish between charitable solicitation and solicitation by individual beggars.85 These courts reasoned that panhandling should receive the same level of First Amendment protection as charitable solicitations because when panhandlers appeal for money, they communicate important political and social messages that cannot be separated from their actions.86 For instance, the Seventh Circuit pointed out in Gresham v. Peterson87 that panhandlers may alert listeners that their plight stems from homelessness, veteran status, disability, and/or unemployment.88 The court concluded that beggars, solicitors and advocates of different causes possess a First Amendment right to ask others for support.89

Recent scholarship on the subject of panhandling also fails to distinguish between charitable solicitation and solicitation by individual beggars.90 As one scholar points out, the only difference between begging and charitable solicitations stems from the fact that beggars ask for money for themselves, whereas solicitors seek money as an agent for an overarching organization.91 This distinction does not itself necessitate a different level of constitutional protection for one and not the other.92 Often, the beggar himself may benefit from the charitable solicitation and by panhandling, the beggar is merely pursuing a more direct method of receiving money.93 85 In Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999), the Eleventh Circuit stated that “[l]ike other charitable solicitation, begging is speech entitled to First Amendment protection.” Furthermore, the Eleventh Circuit stated that “‘[s]oliciting’, ‘begging’ and ‘panhandling’ are interchangeable terms.” Id. at 955, n.1. The Seventh Circuit in Gresham v. Peterson, 225 F.3d 899, 904 (7th Cir. 2000), recognized this as well. 86 Gresham, 225 F.3d at 904; see Helen Hershkoff & Adam S. Cohen, Begging to Differ: The First Amendment and the Right to Beg, 104 HARV. L. REV. 896, 898-99 (1991) (discussing ways that begging also enlightens people and contributes to “both societal and individual enlightenment”). For example, begging provides information about poverty and the lives of poor people. Id. Beggars also inform the listener that there are people in his community who need help. Id. at 899. The beggar’s words may also lead some listeners to an instance of self-inquiry. Also, a beggar may provide some listeners with information on which they would want to act. Id. It is irrelevant if panhandlers in fact fail to inform or educate the listener in such ways, given that many charitable solicitors fail to educate their listeners as well. See Blair v. Shanahan, 775 F. Supp. 1315, 1323 (N.D. Cal. 1991). 87 225 F.3d 899. 88 Id. at 904. 89 Id. 90 See Peter A. Barta, Note, Giuliani, Broken Windows, and the Right to Beg, 6 GEO. J. POVERTY L. & POL’Y 165 (1999); see also Haggerty, supra note 65, at 1157-61; William L. Mitchell, II, Comment, “Secondary Effects” Analysis: A Balanced Approach to the Problem of Prohibitions on Aggressive Panhandling, 24 U. BALT. L. REV. 291, 301 (1995). 91 Barta, supra note 90; see also Fred Kaplan, ACLU Under Fire Again, Now from its Former Allies, BOSTON GLOBE, May 31, 1997, at A1 (“[T]o say that charitable solicitations can be for others, but not for yourself, is a pretty tough line to draw.”). 92 Barta, supra note 90. 93 Id. When poor people panhandle they are telling the public that public assistance is not enough. Court Decisions: People v. Jacqueline Pitts, N.Y.L.J., Aug. 12, 1994, at 26 (“We are


In sum, courts have consistently moved away from the rationale employed by the Second Circuit in Young, instead granting panhandling the same broad constitutional protections afforded to charitable solicitation. These courts reason that panhandling promotes the same speech and values as charitable solicitations, providing support for the position that future panhandling cases should be analyzed under the same Schaumburg framework as charities.94

III. SECTION 1050.6 IS UNCONSTITUTIONAL IN ITS CURRENT FORM

As indicated by Loper, though most courts regard panhandling as

constitutionally protected speech, it is not completely shielded from government regulation. In order to determine whether the regulation of a particular type of speech is constitutional, the Supreme Court has developed a forum-based analysis. The “public forum” doctrine focuses on the nature of the property on which the speech occurs and also looks at whether the regulation of the speech relates to its content or viewpoint.95

A. The Public Forum Doctrine

The “public forum doctrine” identifies three sorts of fora for First

Amendment activity.96 The first, “traditional public fora,” includes streets, sidewalks, and parks, where expressive activity receives the greatest level of constitutional protection.97 Traditional public fora receive such expansive protection because they contain the least expensive channels for communication, allowing people with diverse economic positions the chance to communicate and thereby preventing reminded or informed that we are not doing enough to help our needy. Beggars are saying that they need more help than what the state is offering them. The truth of their statement is that the welfare system is not providing them with enough services to feed themselves.”). 94 See, e.g., Gresham v. Peterson, 225 F.3d 899, 904 (7th Cir. 2000); Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999); Loper v. New York City Police Dep’t, 999 F.2d 699, 704 (2d Cir. 1993). 95 See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829-30 (1995); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 392-93 (1993); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46-47 (1983). 96 Young v. New York City Transit Auth., 729 F. Supp. 341, 356 (S.D.N.Y. 1990); Anthony Rose, The Beggar’s Free Speech Claim, 65 IND. L.J. 191, 203 (1989). 97 Int’l Soc’y for Krishna Consciousness v. City of Baton Rouge, 876 F.2d 494, 497 (5th Cir. 1989) (“The government’s ability to permissibly restrict expressive activity in a public forum is very limited.”); see Rose, supra note 96, at 203 (noting that streets and parks occupy one end of the spectrum where the “rights of the State to limit expressive activity are sharply circumscribed”) (citing Perry Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37, 45 (1983)); see also Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 817 (1985).


society’s elite from monopolizing public discourse.98 For example, the government has ensured that publicly held property such as streets and parks are for public use and “for [the] purposes of assembly, communicating thoughts between citizens and discussing public questions.”99 Many consider traditional public fora as part of the “privileges, immunities, rights, and liberties of citizens.”100 However, content-neutral time, place, and manner restrictions on speech are permissible in traditional public fora if the restrictions are narrowly tailored to serve a significant government interest and if ample alternative means of communication remain open.101

“Non-public fora” are at the other end of the spectrum. The government may restrict expression in non-public fora such as military bases102 or United States mailboxes,103 as long as the regulation of speech is reasonable and is not enacted by public officials merely because they oppose the speaker’s viewpoint.104

In between “traditional public” and “non-public” fora are the “designated public fora.” These types of fora consist of property which the State opens for public use as a place for expressive activity,105 such as municipal theaters and university meeting facilities.106 In these for a, expressive activity receives the same level of protection as in traditional 98 Rose, supra note 96, at 204 n.69 (citing Farber & Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 VA. L. REV. 1219, 1234 (1984)). 99 Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939). This passage has been cited as the origin of the concept of “public forum.” Robert C. Post, The History and Theory of the Public Forum, 34 UCLA L. REV. 1713, 1721 (1987). 100 Hague, 307 U.S. at 515. 101 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see Part III.C infra for discussion on content-neutral versus content-based restrictions. 102 Greer v. Spock, 424 U.S. 828 (1976). In Greer, Army regulations at Fort Dix that prohibited political demonstrations and speeches and required prior approval of literature were challenged as unconstitutional under the First Amendment. Id. The Court held that maintaining notions of political neutrality is consistent with the purpose of a politically-neutral military under civilian control. Id at 839. The Court also determined that restrictions on distribution was not only on political speech, but a general restriction permissible when the commander felt there was a legitimate threat to good order, loyalty, and discipline. Id. at 840. 103 See United States Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114 (1981). In Greenburgh, the Court rejected a civic group’s challenge to a prohibition on placing unstamped letters in a person’s mailbox. Id. The Court simply determined that the government did not intend a person’s mailbox to be a public forum. Id. at 128-29. 104 Perry, 460 U.S. at 46. 105 Id. at 45. 106 See, e.g., Widmar v. Vincent, 454 U.S. 263 (1981) (university meeting facilities); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (municipal theatre). In Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992), the Third Circuit determined that the interior of a public library was a designated public forum. The library sought to take action against Mr. Kreimer, who was allegedly odorous and boisterous. Id. at 1247. In Kreimer, the court held that the library’s rules governing noise and body odor were reasonable time, place, and manner restrictions. See Robert Hanley, Library Wins in Homeless-Man Case, N.Y. TIMES, Mar. 25, 1992, at B8.


public fora, as long as the government keeps the property open for First Amendment activity.107

To determine whether the government intended to designate a place that has not been open to assembly and debate as a public forum, the Court will review the nature of the property and its compatibility with expressive activity.108 The Court has been hesitant to recognize the creation of a public forum, especially when the expressive activity would disturb the principal purpose and function of the property.109 For example, in International Society for Krishna Consciousness, Inc. v. Lee110 the Supreme Court rejected a claim seeking to designate an airport terminal as a public forum because it, by its nature as a transportation facility, was not open to the public.111 The Court stated that the airport terminals had never been dedicated to the solicitation of contributions, the activity sought to be protected.112 In fact, the Court found solicitations disruptive to travel, the principal purpose of the facility.113 Because the airport terminals’ policy and practice excluded

107 The government however, is not required to keep the property open to First Amendment activity indefinitely. See Perry, 460 U.S. at 45-46. However, as long as the government does maintain the open nature of the forum, the same standards apply that pertain to a traditional pubic forum. Id. at 46. As in a traditional public forum, reasonable time, place, and manner restrictions are allowed and content-based restrictions must be narrowly tailored to forward a compelling governmental interest. Id. 108 Cornelius v. NAACP Legal Def. Fund & Educ. Fund, Inc., 473 U.S. 788, 802 (1985). One way to create a limited public forum would be for the state to grant “indiscriminate use” of the forum to the “general public.” Perry, 460 U.S. at 47. The Court in Cornelius emphasized that it will “not find that a public forum has been created in the face of clear evidence of a contrary intent,” or when the nature of the property is inconsistent with expressive activity. Cornelius, 473 U.S. at 803. If factors are not in favor of finding that a limited public forum exists, courts may sometimes sidestep the question and instead decide that a government restriction is unconstitutional on other grounds. In Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 391 (1993), the Court shied away from deciding whether a school board had created a limited public forum by allowing social, civic and recreational groups, but not a religious group, to show films in the school auditorium. Instead, the Court found that the exclusion was a “viewpoint-based” exclusion that would be unconstitutional even in a nonpublic forum. Id. at 393. 109 Barta, supra note 90. 110 505 U.S. 672 (1992). 111 Id. at 683. Prior to the Court’s decision in International Society for Krishna Consciousness v. Lee, all federal appeals courts that had faced the issue of what category of forum an airport fell into held that it was a public forum. Lyle Denniston, When is a Public Forum Not a Public Forum, AMERICAN LAWYER, Sept. 1992, at 94. The Second Circuit broke this trend when it held that airports were not open to in-person fundraising, basing its decision on United States v. Kokinda, 497 U.S. 720 (1990), which limited public use of a sidewalk leading to a post office. Id. 112 Int’l Soc’y for Krishna Consciousness, 505 U.S. at 682. 113 Id. at 683-84. The Court explained:

Solicitation may have a disruptive effect on business by slowing the path of both those who must decide whether to contribute and those who must alter their paths to avoid the solicitation. . . . The fact that the targets are likely to be on a tight schedule, and thus are unlikely to stop and complain to authorities, compounds the problem. The Port Authority has determined that it can best achieve its legitimate interest in


solicitors, the Court determined that the terminals at issue were not a public forum and therefore the prohibition of solicitations was permissible.114

B. The New York City Subway is a Designated or Limited Public

Forum

Within the framework of the “public forum” doctrine, the subway falls within either of two fora: the “non-public” or the “designated public fora.” The subway does not qualify as a traditional public forum, since its main function has not been reserved to the public but is rather the “safe movement and transportation of passengers.”115

Courts faced with the question of characterizing the New York City subway under the “public forum” doctrine have reached different results. In Young, the Second Circuit characterized the New York City subway as a non-public forum, or at most, a limited public forum open only to certain groups and specified speech activities, but not intended to be open to panhandling by individuals.116 In New York v. Schrader, the Criminal Court of the City of New York, New York County upheld the regulation at issue in Young in 1994, stating that while begging constituted a form of protected speech, the transit system was a non-public forum, available only for certain speech activities, expressly not extended to panhandling.117 The Schrader court based its assertion on

monitoring solicitation activity to assure that travelers are not interfered with unduly by limiting solicitation to the sidewalk areas outside the terminals.

Id. at 673. Barry Fisher, the attorney for the Krishnas, argued that airports are designed to attract people and are not used only by travelers. Supreme Court Considers Ban on Solicitation in Airports, 9 AIRPORTS 123 (1992). Arthur Berg, attorney for the Port Authority, argued that passengers are held an unwanted captive audience because unlike on sidewalks, they are restricted to certain paths and “they have no choice not to be bothered.” Id. 114 Int’l Soc’y for Krishna Consciousness, 505 U.S. at 685. 115 See New York v. Schrader, 617 N.Y.S.2d 429, 437 (N.Y. Crim. Ct. 1994). In People v. Bright, 520 N.E.2d 1355 (N.Y. 1988), the court noted that some transportation facilities, such as the Long Island Railroad concourse in Pennsylvania Station, “have evolved into large multipurpose complexes, replete with wide concourses along which numerous retail establishments of all kinds implicitly invite the public to enter, browse and shop.” Id. at 386. This is very similar to modern shopping malls, which some have categorized as a traditional public forum. See Marc C. Alexander, Attention, Shoppers: The First Amendment in the Modern Shopping Mall, 41 ARIZ. L. REV. 1 (1999). Such is not the case for New York City subways, for the subways are still a place of limited public access. The subway system continues to be a place to purchase a metrocard and wait for a train—it is not an enormous complex that entices the public to enter even without transportation needs. Schrader, 617 N.Y.S.2d at 438. Therefore, the subways have not become a traditional public forum. 116 Young v. New York City Transit Auth., 903 F.2d 146, 161-62 (1990). 117 Id. Schrader also held that the regulation against begging was reasonable and therefore did not violate the state constitution. Schrader, 617 N.Y.S.2d at 439.


the fact that one must pay a fare in order to use the transit system, and the fact that the system only consists of escalators, stairs, elevators, passageways, and platforms, with few, if any, comforts.118

Indeed, other courts have found that a subway constitutes a nonpublic forum.119 However, when the government chooses to allow many forms of expressive activity, the government transforms the nonpublic forum into a designated public forum.120

Therefore, when the Transit Authority issued a regulation that bans panhandling in the subway system, while allowing charitable solicitations and other forms of expressive First Amendment speech such as political speech, artistic performances, leafleting, and other “non-transit” activities in certain areas of the same system,121 the New 118 Id. at 437. In addition, in Blair v. Shanahan, 775 F. Supp. 1315, 1322 n.5 (N.D. Cal. 1991), the United States District Court for the Northern District of California stated that “the subway, unlike city streets, is not a public forum.” The court further stated that the reason for this is that “[s]ubway passengers, unlike city pedestrians, have no way to escape a beggar’s presence.” Id. Thus “proscribing begging in the subway could be viewed as a reasonable time, place and manner restriction on the beggar’s right to speech.” Id. 119 In Planned Parenthood Association/Chicago Area v. Chicago Transit Authority, 767 F.2d 1225 (7th Cir. 1985), when a controversial advertising group challenged its exclusion from subway advertising space, the United States Court of Appeals for the Seventh Circuit stated that the subway is generally a nonpublic forum. However, by soliciting and displaying advertisements, Chicago converted its transit system into a designated public forum. Id. at 1232. 120 Id.; see also Widmar v. Vincent, 454 U.S. 263,(1981) (holding that once a state university makes its facilities available to student groups, it creates a limited public forum from which it cannot discriminatorily exclude religious student groups absent a compelling justification); see also Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 391 (1993); Lee Rudy, Note, A Procedural Approach to Limited Public Forum Cases, 22 FORDHAM URB. L.J. 1255, 1265 (1995); cf. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place.”). 121 N.Y. COMP. CODES R. & REGS. tit. 21 § 1050.6 (2004) expressly states:

(a) No person may vandalize or attempt to vandalize any facility or conveyance, or perform any act which causes or may tend to cause damage to any facility or conveyance, interfere with the provision of transit service or obstruct the flow of traffic on facilities or conveyances or which would in any way interfere or tend to interfere with the safe and efficient operation of the facilities or conveyances of the authority. (b) No person, unless duly authorized by the authority shall engage in any commercial activity upon any facility or conveyance. Commercial activities include:

(1) the advertising, display, sale, lease, offer for sale or lease, or distribution of food, goods, services or entertainment (including the free distribution of promotional goods or materials); and (2) the solicitation of money or payment for food, goods, services or entertainment. No person shall panhandle or beg upon any facility or conveyance.

(c) Except as expressly authorized and permitted in this subdivision, no person shall engage in any nontransit uses upon any facility or conveyance. Nontransit uses are noncommercial activities that are not directly related to the use of a facility or conveyance for transportation. The following nontransit uses are authorized and permitted by the authority, provided they do not impede transit activities and they are conducted in accordance with the rules governing the conduct and safety of the


York City Transit Authority turned a non-public forum into a designated public forum by seemingly allowing “indiscriminate use” of the subway system to the “general public.”122 Not only did the Transit Authority open the subway system to charitable solicitations, a form of speech similar to panhandling, and one which courts agree receives the same level of constitutional protection,123 but it opened the system to many other forms of expressive activity thereby seemingly discriminating against panhandling.124 Therefore, the New York City subway system constitutes, under current law, a designated public forum.

The subway cars themselves may be considered a non-public forum, considering that charitable solicitations, panhandling, and other First Amendment activities are prohibited on the subway cars—as

public in the use of the facilities of New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority: public speaking; distribution of written noncommercial materials; artistic performances, including the acceptance of donations; solicitation for religious or political causes; solicitation for charities that (1) have been licensed for any public solicitation within the preceding 12 months by the Commissioner of Social Services of the City of New York under section 21-111 of the Administrative Code of the City of New York or any successor provision, or (2) are duly registered as charitable organizations with the Secretary of State of the State of New York under section 172 of the New York Executive Law or any successor provision, or (3) are exempt from Federal income tax under section 501(c)(3) of the United States Internal Revenue Code or any successor provision. Solicitors for such charities shall provide, upon request, evidence that such charity meets one of the preceding qualifications.

(1) Permitted nontransit uses may be conducted in the transit system except when on or within: a subway car; an omnibus; any area not generally open to the public; 25 feet of a token booth; or 50 feet from the marked entrance to an authority office or tower. The following activities are not subject to the distance requirements from a token booth or authority office or tower: leafletting or distribution of literature, campaigning, public speaking or similar activities, provided that no sound production device is used and no physical obstruction, such as a table or other object, is present. (2) In no event will an activity be permitted in a location which interferes with the access onto or off of an escalator, stairway or elevator, or otherwise interferes with or impedes transit services or the movement of passengers. (3) No activity permitted by this authorization shall be conducted on a subway platform while construction, renovation or maintenance work is actively underway on or near the platform, or on or near the staircases, escalators, or elevators leading to the platform and including any such work in or near track areas.

122 Perry, 460 U.S. at 47. The Court stated that one way to create a limited public forum would be for the state to grant “indiscriminate use” of the forum to the “general public.” Id. Furthermore, by allowing so much expressive activity, the nature of the forum is clearly conducive to expressive activity. Cornelius v. NAACP Legal Def. Fund & Educ. Fund, Inc., 473 U.S. 788, 802 (1985). 123 See, e.g., Gresham v. Peterson, 225 F.3d 899, 904 (7th Cir. 2000); Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999); Loper v. New York City Police Dep’t, 999 F.2d 699, 704 (2d Cir. 1993). 124 See N.Y. COMP. CODES R. & REGS. tit. 21 § 1050.6(c) (2005).


opposed to subway platforms and mezzanines, which allow charitable solicitations but prohibit panhandling.125 The Transit Authority most likely regulated subways to this extent mainly due to the confining nature of subway cars and passengers’ decreased ability to move about from one place to another.126 The Transit Authority prohibits walking from one subway car to another and therefore, subway riders become a captive audience to panhandlers’ pleas.127 This reasoning helps explain why time, place and manner restrictions exist for charitable solicitations on subway platforms and mezzanines, whereas a total prohibition of all non-transit uses mentioned in Section 1050.6 exists within the actual cars.128

C. Content-Based Restrictions v. Content-Neutral Restrictions

After determining that the New York City subway system is a

designated public forum, the next step in the constitutional analysis is to establish whether Section 1050.6 is a content-based or a content-neutral restriction on speech. Content-based restrictions attempt to regulate the “ideas or information contained in the speech or its general subject matter.”129 Such restrictions require strict scrutiny and are constitutional only if deemed “necessary to serve a compelling state interest and . . . [are] narrowly drawn to achieve that end.”130 Courts 125 Id. § 1050.6(c)(1) (“Permitted nontransit uses may be conducted in the transit system except when on or within: a subway car . . . .”). 126 See supra notes 111-113 and accompanying text. 127 N.Y. COMP. CODES R. & REGS. tit. 21 § 1050.9(d) (2005) (“No person shall ride . . . between subway cars or on any other area outside any subway car . . . or other conveyance operated by the authority.”). Signs are displayed on subway car doors not to exit or enter cars while the train is in motion. 128 Section 1050.6(c)(1) mentions that “leafletting or distribution of literature, campaigning, public speaking or similar activities,” unlike all other First Amendment activity, may be conducted within twenty-five feet of a token booth or fifty feet from the marked entrance to an authority office or tower. This too would make these areas a designated public forum, and raises the question as to whether the Transit Authority may allow these activities while banning panhandling, charitable solicitations, and artistic performances in these areas. One probable reason for this regulation is that it impedes pedestrian traffic in these crucial areas. However, a question arises, might leafletting impede pedestrian traffic in these areas to the same extent that panhandling or charitable solicitations would? 129 Modugno, supra note 10, at 703. 130 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). However, certain content-based restrictions are not put through the rigors of a strict scrutiny analysis because they are considered per se unconstitutional. See Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 830 (1995) (finding that the University of Virginia’s policy regulating the funding of newspapers was unconstitutional viewpoint discrimination). “Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Id. at 829 (citations omitted). Sometimes it is hard to tell what constitutes viewpoint discrimination and what is a content-based


rarely uphold content-based regulations due to the strong presumption against their constitutionality.131 Content-neutral restrictions, on the other hand, make no attempt to regulate the content of speech. If a statute is content-neutral, it necessitates the more relaxed rational basis analysis and courts are therefore more likely to uphold it.132

The Second Circuit’s First Amendment analysis in Young determined that Section 1050.6 constituted a content-neutral regulation and therefore applied the more relaxed standard of judicial scrutiny as prescribed by United States v. O’Brien.133 The Second Circuit decided

regulation that should be subjected to a strict scrutiny analysis. See Nicole B. Casarez, Public Forums, Selective Subsidies, and Shifting Standards of Viewpoint Discrimination, 64 ALB. L. REV. 501, 512 (2000) (discussing the difficulty the Supreme Court has had in distinguishing between content-based regulations and viewpoint discrimination). 131 Speech that is regulated based only on its content is generally given the highest level of First Amendment protection. Kerri L. Keller, Lorillard Tobacco Co. v. Reilly: The Supreme Court Sends First Amendment Guarantees up in Smoke by Applying the Commercial Speech Doctrine to Content-Based Regulations, 36 AKRON L. REV. 138-39 (2002). Statutes that are content-based are “subjected to a more rigorous judicial inquiry” because of the great importance placed on free speech. Elizabeth Buroker Coffin, Casenote, Schuster, Inc. v. New York State Crime Victims Board, 18 U. DAYTON L. REV. 593, 612 (1993). Yet courts tend to uphold certain content-based restrictions. Keller, supra at 138-39. For example, low-value speech such as fighting words, incitements to riot and obscenity is given very little protection. Id. at 139. High value speech, such as political, literary, artistic and scientific speech is given much greater protection. But see, Lehman v. City of Shaker Heights, 418 U.S. 298, 303-04 (1974) (plurality opinion) (holding that a city could refuse to sell advertising space on city buses to political candidates, while at the same time displaying other advertisements). In that case, Justice Douglas agreed that the transit system was not a public forum, but he concurred in the result based on a captive audience rationale, and would have held that the city had the right to protect commuters from exposure to commercial advertising. Id. at 307 (Douglas, J., concurring). This plurality decision seems to be the aberration to the rule. See Rosenberger, 515 U.S. 819; Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 391 (1995). Lehman v. Shaker Heights is also distinguishable from the Transit Authority banning panhandling in New York City subways, because if the Transit Authority were to regulate panhandling as it does charitable solicitations, subway passengers, unlike when exposed unwittingly to advertisements on buses, are free to continue walking and decline to listen to the panhandler’s message. 132 The government may “enforce regulations of the time, place and manner of expression which are content-neutral, narrowly tailored to serve significant government interest, and leave open ample alternate channels of communication.” Perry, 460 U.S. at 45. 133 391 U.S. 367 (1968) (holding that the conviction of an individual for destroying a draft card in anti-war protest was allowed to stand where speech and non-speech elements combined in same course of conduct). According to O’Brien, four requirements are necessary to justify a content-neutral government regulation. Id. at 377. First, the government regulation must come within the constitutional power of the government. Id. Second, the regulation must further an important or substantial governmental interest. Id. Third, the governmental interest must not relate to the suppression of free expression. Id. Finally, the incidental restriction on alleged First Amendment freedoms must not exceed that which is essential to the furtherance of that interest. Id. In applying the O’Brien analysis, the Supreme Court has emphasized the importance of the third requirement. See Young v. New York City Transit Auth., 903 F.2d 146, 157 (2d Cir. 1990) (citing Texas v. Johnson, 409 U.S. 397, 407 (1989)). Once a restriction meets the third requirement, the Supreme Court has indicated that the last part of the O’Brien standard resembles the standard applied to time, place or manner restrictions. Id. Viewing the third prong as the content-neutrality threshold requirement, a consolidated analysis requires incidental restrictions on speech to be narrowly tailored to achieve a significant government interest. Id. at 149.


that Section 1050.6 was content-neutral because it concluded that Section 1050.6 is “not directed at any expressive aspect of the proscribed conduct.”134 However, as this Note will demonstrate, this is not an accurate statement.

1. Section 1050.6 is a Content-Based Regulation

Ever since the District Court and the Second Circuit decided

Young, the line between content-neutral and content-based restrictions has grown increasingly blurred. The Supreme Court in Ward v. Rock Against Racism,135 and more recently in Hill v. Colorado,136 emphasized that the inquiry turns on the government’s justification for the regulation.137

At issue in Hill was a statute that made it unlawful for anyone to protest within a certain distance of a health care facility’s entrance.138 The Court decided that the statute at issue was content-neutral.139 The Court stated the most important factor in this decision was that the regulation applied to “all demonstrators, regardless of viewpoint and the statute did not make any reference to the content of speech.”140

Unlike in Hill, Section 1050.6 prohibits panhandling while allowing charitable solicitations, yet both seemingly identical forms of speech should receive the same level of constitutional protection.141 The regulation does not prohibit people who are making charitable requests on behalf of political, commercial or other charitable Commentators observe that an important factor in being “narrowly tailored” includes the existence of ample alternative channels of communication. See Nichols, supra note 72, at 289; Haggerty, supra note 65, at 1127. 134 Young, 903 F.2d at 159. The Young court also noted that “the case now at bar involves proscription of conduct for reasons completely unrelated to the alleged communicative impact of the conduct.” Id. 135 491 U.S. 781, 791 (1989) (“The principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”). 136 530 U.S. 703, 719 (2000). At issue in Hill v. Colorado was COLORADO REV. STAT. § 18-9-122(3) (2005), which made it unlawful for any person within one hundred feet of a health care facility’s entrance to “knowingly approach” within eight feet of another person, without that person’s consent, in order to pass “a leaflet or handbill to, display[] a sign to, or engag[e] in oral protest, education, or counseling with [that] person . . . .” Id. at 707. The real concern in Hill was that people had been demonstrating against abortions. Id. at 708-09. The Court decided that it was a content-neutral regulation and the statute’s restrictions on speech-related conduct were constitutional. Id. 137 Gresham v. Peterson, 225 F.3d 899, 905-06 (7th Cir. 2000). 138 Hill, 530 U.S. at 707. 139 Id. at 719. 140 Id. 141 Gresham, 225 F.3d 899, 904-05 (7th Cir. 2000); Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999); Loper v. New York City Police Dep’t, 999 F.2d 699, 704 (2d Cir. 1993).


organizations from approaching commuters for money. However, if someone were asking for a charitable contribution for himself, Section 1050.6 would prohibit him from doing so. As a result, Section 1050.6 places greater burdens on the speech-related activities of some citizens than on others, based only on the content of their speech.142

Furthermore, a determination of whether a solicitor violates the ordinance is based on whether the panhandler or solicitor asks for cash or something else.143 Thus, a court can only determine whether a solicitor violates the ordinance by examining the content of his speech.144 Therefore, contrary to what the Second Circuit claimed in Young,145 Section 1050.6 is directed at an expressive aspect of the panhandler’s speech,146 and is thus a content-based restriction subject to strict scrutiny.147

D. Applying the Strict Scrutiny Test to a Content-Based Restriction In order for a content-based restriction to pass constitutional

muster, the restriction must be “necessary to serve a compelling government interest and . . . narrowly drawn to achieve that end.”148 Section 1050.6 is neither narrowly tailored nor does it serve a compelling government interest, and is thus unconstitutional as it currently exists.

The Young court mentioned two governmental interests that Section 1050.6 is proposed to serve—public safety149 and subway efficiency.150

142 The court made a similar argument in Patton v. City of Baltimore, Civil No. S 93-2389, at 57-58 (D. Md. Aug. 19, 1994). In Patton, at issue was an ordinance where the city of Baltimore banned aggressive panhandling. Baltimore, Md., Code art. 19, 249 (Supp. 1994); see Mitchell, II, supra note 90, at 317-18. The court noted that the ordinance was content-based, as it only prohibited aggressive panhandling, or charitable solicitations for oneself, yet allowed charitable solicitations for organizations. 143 Gresham, 225 F.3d at 905 (“One could, for instance, ask passers-by for their signatures, time, labor or anything else, other than money. Only by determining the specific content of a solicitor’s speech could authorities determine whether they violated the ordinance, which would seem to be a content-based restriction.”); see also Barta, supra note 90. 144 Gresham, 225 F.3d at 905. 145 Section 1050.6 is “not directed at any expressive aspect of the proscribed conduct.” Young v. New York City Transit Auth., 903 F.2d 146, 159 (2d Cir. 1990). 146 Though the Second Circuit in Young claimed that Section 1050.6 was not directed at conduct, the court would now consider the regulation aimed at speech rather than conduct, as indicated by Loper. See Young, 903 F.2d at 159; Loper, 999 F.2d at 704. 147 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). 148 Id. 149 Young, 903 F.2d at 158. 150 Id.; New York v. Schrader, 617 N.Y.S.2d 429, 437 (N.Y. Crim. Ct. 1994).


1. Public Safety

In Young, the Court indicated that the governmental interest

implicated by Section 1050.6 was public safety.151 There are three main reasons why a complete ban on panhandling in the subway system is not a narrowly tailored method of achieving that interest.

First, the connection between banning panhandling in the subway system and public safety is extremely questionable, contrary to what the Young court indicated. The Young court stated that passengers perceived begging as “threatening” or “intimidating.”152 The Young court further claimed that “begging is ‘inherently aggressive’ to the ‘captive’ passengers in the close confines of the subway atmosphere” and often amounts to “nothing less than assault.”153 Therefore, the court reasoned that in the interest of public safety, the Transit Authority was warranted in prohibiting panhandling in the subway system.154

However, in reality, the connection between panhandling and public safety is relatively precarious. Public safety may no longer be considered a compelling state interest that could support the ban on panhandling. As crime in the subways has significantly decreased over the years, subway passengers should no longer feel intimidated when approached by strangers asking for money.155 It is understandable that a majority of subway passengers in Young feared panhandlers, considering the state of the subways at that time.156 However, now the connection between panhandling and safety is much more precarious because the atmosphere in the subway has significantly improved.157

Second, even if public safety was a compelling governmental interest, a complete ban on panhandling is not narrowly tailored to serve this interest. For instance, the statute as it currently exists bans both panhandlers who are standing by the wall with an overturned cup out and aggressive panhandlers.158 Furthermore, a complete ban is overinclusive in that it does not permit panhandling even when the public’s safety is not at risk.159 An easier way to accomplish this goal would be to ban only aggressive panhandling.160 151 Young, 903 F.2d at 158. 152 Id. 153 Id. 154 Id. 155 See Kurutz, supra note 1 (discussing subway passengers’ familiarity and affinity towards certain panhandlers who panhandle frequently). 156 See supra note 56. 157 Id. 158 Young v. New York City Transit Auth., 729 F. Supp. 341, 358 (S.D.N.Y. 1990). 159 Even George Kelling, the founder of the “Broken Windows” theory acknowledged this point:

A person standing at the top of subway stairs, holding a paper cup, and begging


Moreover, other regulations issued by the Transit Authority already cover public safety concerns.161 For instance, one regulation bans conduct that has the intended effect of causing “annoyance, alarm or inconvenience to a reasonable person or creat[ing] a breach of the peace.”162 Another prohibits conduct that causes or tends to cause harm or damage to any person.163 Therefore, if the Transit Authority was concerned about public safety, it has already addressed these concerns through other regulations.

during the 8 a.m. rush hour is not much of a threat. At 10 p.m., the same panhandler, behaving in the same manner as observed during the rush hour, is a genuine threat to a solitary elderly woman returning home from work. The time and the location and condition of the woman combine to turn the panhandler’s behavior into a threat that anyone in the woman’s position would feel and could result in hassles and inconveniences for the woman as well as her reluctance to ride the subway.

George L. Kelling, “Broken Windows” and Police Discretion, National Institute of Justice Research Report, Oct. 1999. 160 Aggressive panhandling is defined in the ordinance at issue in Gresham v. Peterson, 225 F.3d 899, 901-02 (7th Cir. 2000), as being “unlawful to engage in an act of panhandling in an aggressive manner, including any of the following actions:

(1) Touching the solicited person without the solicited person’s consent. (2) Panhandling a person while such person is standing in line and waiting to be admitted to a commercial establishment; (3) Blocking the path of a person being solicited, or the entrance to any building or vehicle; (4) Following behind, ahead or alongside a person who walks away from the panhandler after being solicited; (5) Using profane or abusive language, either during the solicitation or following a refusal to make a donation, or making any statement, gesture, or other communication which would cause a reasonable person to be fearful or feel compelled; or, (6) Panhandling in a group of two (2) or more persons.

INDIANAPOLIS CITY-COUNTY GENERAL ORDINANCE No. 78 (1999). Although Indianapolis banned panhandling in the city during the night-time hours, Indianapolis allowed panhandlers to beg in any manner they wished during the day as long as such begging was not “aggressive” within the meaning of the ordinance. Gresham, 225 F.3d at 903; see also Patton v. City of Baltimore, Civil No. S 93-2389, at 57-58 (D. Md. Aug. 19, 1994) for a regulation banning aggressive panhandling. As aggressive panhandling statutes are considered to address significant governmental safety concerns, they are almost universally upheld even though they might constitute a content-based restriction. Gresham, 225 F.3d at 909; see, e.g., City of Seattle v. Webster, 802 P.2d 1333 (Wash. 1990) (upholding a statute that banned aggressive panhandling); see also Patton, Civil No. S 93-2389, at 57-58. 161 This was mentioned as an argument by the United States District Court for the Southern District of New York in Young. Young, 729 F. Supp. at 358. The Second Circuit’s response to this argument was merely to quote Ward v. Rock Against Racism by saying that “a regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” Young v. New York City Transit Authority, 903 F.2d 146, 160 (2d Cir. 1990) (citing Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989)). Though this may be true, along with additional arguments indicating that a ban on panhandling has no effect on public safety and is not narrowly tailored to achieve the interest of public safety, these additional regulations addressing public safety concerns are relevant. 162 N.Y. COMP. CODES R. & REGS. tit. 21 § 1050.7(i) (2005). 163 Id. § 1050.7(k).


Third, the Young court mentioned that panhandling “disrupts” or “startles” passengers, thereby increasing the “potential for a serious accident in the fast-moving and crowded subway environment.”164 However, the Young court failed to demonstrate why panhandlers startle people and increase the potential for accidents more so than charitable solicitors.165 In fact, charitable solicitors may sometimes be aggressive themselves.166 Indeed, charitable solicitations require similar speech and actions to panhandling. A panhandler would therefore not “startle” a passerby any more than would a charitable solicitor, yet the Transit Authority chooses to ban only panhandling from the subway system.

Moreover, the Transit Authority allows artistic performances within the same areas it allows charitable solicitations.167 These performances tend to draw crowds that also increase the probability of accidents occurring within the “fast-moving” subway environment, a concern the Second Circuit voiced in Young.168 Allowing such crowd-drawing activities within the subway system severely undermines the Transit Authority’s argument that panhandling would cause accidents by slowing down the fast-paced crowd, because it already sanctions activity that does so. This also undermines the government’s proposed interest in subway efficiency.

2. Subway Efficiency

The second government interest that Young indicated Section

1050.6 serves is providing efficient transportation for passengers.169 One possible concern is that allowing panhandling would cause a disruption in the flow of pedestrian traffic within the station.170 The Supreme Court upheld this as a legitimate state interest in International Society for Krishna Consciousness.171 However, in that case, at issue 164 Young, 903 F.2d at 158. 165 Id. at 167 (Meskill, J., dissenting). 166 See Sherri M. Owens, New Rules in Orlando for Peddlers, Fund-raisers, ORLANDO SENTINEL, Nov. 19, 1996, at D1 (discussing a proposed Orlando ordinance banning aggressive charitable solicitations). 167 N.Y. COMP. CODES R. & REGS. tit. 21 § 1050.6(c) (2005). 168 Young, 903 F.2d at 158. British police cited crowds as a legitimate concern in hindering “foot traffic” and safety in the Underground tube (subway) when contemplating allowing musicians to perform underground. Tod Robberson, Earth Tones: U.K. Subway a Musical Underground, DALLAS MORNING NEWS, Sept. 18, 2003, at 1A. 169 New York v. Schrader, 617 N.Y.S.2d 429, 437 (N.Y. Crim. Ct. 1994). 170 Young, 903 F.2d at 159. See Robberson, supra note 168. In City of Seattle v. Webster, 802 P.2d 1333 (Wash. 1990), the court upheld a Seattle ordinance, stating that prohibiting obstruction of pedestrian or vehicular traffic or causing someone to take “evasive action” was a legitimate state interest. 171 See Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 673 (1992) (“Solicitation may have a disruptive effect on business by slowing the path of both those who must decide


was whether the Port Authority may ban charitable solicitations in an airport. The Court held that the Port Authority was allowed to ban charitable solicitations in an airport because an airport constituted a non-public forum.172 However, in this situation, charitable solicitations are allowed in certain areas of the subway while panhandling, a type of speech that should receive the same level of constitutional protection, is banned. Therefore, the Transit Authority is now allowing the very form of speech that, according to the Supreme Court, interfered with the flow of pedestrian traffic in an airport. If the Transit Authority truly wished to achieve subway efficiency it would have banned both panhandling and charitable solicitations from the start.

Additionally, as mentioned above, since Section 1050.6 allows artistic performances and other “crowd-luring” activities that are bound to interfere with the flow of pedestrian traffic, yet bans only panhandling, the law is not narrowly tailored to fit the government’s interest in subway efficiency. Again, if the Transit Authority were truly concerned with blocking pedestrian traffic, it would ban all forms of these crowd-luring activities to ensure that nothing interferes with subway passengers’ commute.

IV. THE TRANSIT AUTHORITY SHOULD ALLOW LIMITED PANHANDLING IN NEW YORK CITY SUBWAYS

As the above analysis indicates, since Section 1050.6 is a content-

based restriction in a limited public forum that is not narrowly tailored to achieve a compelling government interest, the statute in its current form is unconstitutional.173

Therefore, two options exist for the Transit Authority to equate the level of constitutional protection it gives to these forms of speech. First, it may ban all First Amendment activity throughout the subway, turning a limited public forum back into a nonpublic forum. The other option is to allow panhandling in restricted areas of the subway where it now allows charitable solicitations and other forms of First Amendment expression, but ban aggressive panhandling throughout the subway system. As discussed below, the second option is preferable because if the Transit Authority were to ban all First Amendment expression in the

whether to contribute and those who must alter their paths to avoid the solicitation.”). 172 Id. at 683. 173 See discussion supra Part III; see also supra note 131 for a discussion on how to distinguish Lehman v. City of Shaker Heights, 418 U.S. 298, 303-04 (1974) from the present case.


subway, a needless suppression of First Amendment speech would result.174

The first option mentioned for the Transit Authority to pursue is to ban all First Amendment activity in the subway system and thus convert a designated public forum back into a non-public forum.175 As mentioned above, the Transit Authority may prohibit First Amendment activity in a nonpublic forum as long as it is reasonable.176 The Transit Authority may defend its prohibition of First Amendment activity as reasonable, for the main purpose of the subway is public transportation, and the Transit Authority may regulate any activity that interferes with efficient transportation. The Transit Authority could argue that safety and efficiency problems exist with the First Amendment activity it currently allows—especially “crowd-luring” activity such as artistic performances—and may hinder a passenger in a rush who must dodge the gathered crowds in order to get to where he is going. Furthermore, both charitable solicitors and panhandlers may slow or disrupt pedestrian traffic because people may need to alter their paths to avoid solicitors or slow their paths when deciding whether to contribute.177 The government justified banning panhandling in similar places by expressing its concern that the public’s safety could be compromised by disrupting the smooth flow of pedestrian or vehicular traffic.178 Therefore, the Transit Authority may justify regulating First Amendment activities that it currently allows.179

174 There remains the possibility of a third option—that the Transit Authority may prohibit most First Amendment activity, but allow only a few forms and still preserve a nonpublic forum. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985) (indicating that by allowing a lot of expressive activity in a non-public forum, the nature of the forum is clearly conducive to expressive activity). It is debatable as to which forms and how many forms of “expressive activity” the Transit Authority may allow before it converts the subway into a designated public forum. See discussion supra of public fora in Part III. 175 See supra Part III for discussion of designated and nonpublic fora. 176 In a nonpublic forum, the government may regulate First Amendment activity as long as it is reasonable and only when it is not merely public officials who oppose the speaker’s view. See supra Part III. See also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (“[T]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”). 177 See Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 673 (1992), which addresses charitable solicitation: “Solicitation may have a disruptive effect on business by slowing the path of both those who must decide whether to contribute and those who must alter their paths to avoid the solicitation.” Leafletters and political speakers may have the same effect although it would be more difficult to argue this point. 178 The Court upheld the restriction on solicitation in airports for this very reason in International Society for Krishna Consciousness. Int’l Soc’y for Krishna Consciousness, 505 U.S. at 673. In this situation, the government needs to demonstrate that passenger safety and/or subway efficiency is currently harmed. Otherwise, the ban would not serve even a legitimate governmental interest as required by the O’Brien test for a content-neutral regulation. 179 Therefore, if the Transit Authority decided that it wanted to eliminate all or much of the First Amendment activity that it currently allows and use the subway system merely for transportation, the purpose it was meant to serve, this would most probably be a reasonable


However, in order to ban all such activity, to qualify as a “reasonable” restriction the government must demonstrate that there has been a malfunction in the way the system currently operates.180 If the Transit Authority fails to demonstrate a problem with how the system is currently functioning, then to ban activities that have existed without problem for so many years would constitute an unreasonable restriction.

There are reasons that the Transit Authority may not want to prohibit all forms of First Amendment activity, however. In reality, the Transit Authority has allowed many forms of First Amendment activity despite not having the obligation to do so, indicating that there may be reasons to value and promote certain activities.181 For example, the Transit Authority takes an active role in developing art and music in the subway in order to develop subway “culture.” The “Arts for Transit” program, directed by the Transit Authority, commissions permanent art, runs temporary station exhibitions, and includes the popular “Music Under New York,” which competitively selects musicians to perform underground.182 The Transit Authority implemented this program to encourage use of the public transportation system.183

Furthermore, it may not want to prohibit First Amendment activity in New York City that the public values as well. The subway has become a popular venue for First Amendment expression throughout

regulation of speech in a non-public forum. 180 Once the government bans all First Amendment activity, it constitutes a content-neutral restriction on First Amendment expression subject to the O’Brien test. For a discussion of O’Brien, see supra note 133. Under O’Brien, the restriction needs to meet a legitimate governmental interest. United States v. O’Brien, 391 U.S. 367 (1968). However, if things have been functioning well under the current section 1050.6, then the government would fail to meet this standard, as there would be no reason to impose the regulation. 181 Section 1050.6(c) provides an exception for certain “non-transit uses” of the subway system, and allows these forms of expression in restricted areas of the subway. See supra note 121. 182 At present more than one hundred individual performers and ensembles—ranging from classical music to Cajun, bluegrass, African, South American and jazz—participate in over 150 weekly performances in approximately twenty-five locations throughout the transit system. See MTA: Arts for Transit at http://www.mta.info/mta/aft/muny.htm. In an effort to appeal to the MTA’s entire ridership, the program seeks musicians who reflect the diversity of public transit users. Id; see also, MTA Music Under New York’s 18th Annual Live Audition Grand Central Terminal/Vanderbilt Hall, U.S. FED NEWS, May 16, 2005 (calling for auditions for 2005’s “Music Under New York” program). Once a performer is selected for “Music Under New York,” he/she has the unique ability to hang an official “Music Under New York” banner imprinted with the performer’s name and telephone number where he/she performs. Francis X. Clines, Caught Up in the Underground Blues, N.Y. TIMES, Nov. 5, 2004, at A30. 183 The Arts for Transit Program operates in the spirit of the original subway: “The first subway line was built under the philosophy of the City Beautiful movement, which was that if you created beautiful spaces, they would bring out people’s better impulses, their higher nature.” Rachel Scheier, Art Interrupts Grit and Grime in N.Y. Subways, CHRISTIAN SCI. MONITOR, Sept. 23, 1994, at 10.


New York City, and the loss of such expression would be detrimental to New York City life.184

Therefore, the Transit Authority should pursue the second option, which is to allow panhandling in restricted areas of the subway where it now allows charitable solicitations and other forms of First Amendment expression, especially given that courts currently equate panhandling with charitable solicitations for constitutional purposes.185 To address concerns over passenger safety and subway efficiency, the Transit Authority should ban only aggressive panhandling throughout the subway system.186

This option presents a solution to Section 1050.6’s constitutional problem that is beneficial to the Transit Authority, to panhandlers, and to the public. The Transit Authority can appreciate this option because it would enable it to continue allowing valued First Amendment expression in the subway.187 Panhandlers, a group whose speech has long been suppressed,188 will gain access to the public in an environment that is conducive to begging,189 but yet because they will 184 New Yorkers tend to enjoy artistic performances in subway stations. One artist said of her subway audience, “[t]he people are so wonderful . . . . Sometimes people don’t have any money, and they leave little notes and cards in the basket telling me how much they enjoyed my playing or telling me something about themselves.” Clem Richardson, MTA’s Lively Sound Underground Program Brings Music to Riders, DAILY NEWS, Aug. 16, 2002, at 4; see also Charles Osgood, Notes from the Underground: Subway Musicians in New York (CBS Broadcast June 23, 2002). People also enjoy picking up a free newspaper in a subway station to read during their commute. Nightly Business Report CEOWire, July 12, 2005. “For many New Yorkers, free newspapers have become a staple in the morning commute. At subway stations and street corners, hawkers from ‘A.M. New York’ and its rival ‘Metro’ give away their tabloids to anyone who will take them.” Id. Furthermore, the New York City Transit Authority recently rejected a proposed ban on photography and video i n the subway system. Jay Defoore & David Walker, New York Subway Photo Ban Rejected, N.Y. TIMES, July 1, 2005, at 16. The New York Civil Liberties Union fought the ban, stating that it would be “ineffective” and would “hinder photographers everywhere.” Id. After talking with civil liberties groups and hearing public comments, the Transit Authority rejected the proposal. Id. 185 The Transit Authority should not allow panhandling throughout the subway system for legitimate safety and efficiency concerns. For instance, while waiting for a subway, in line to buy tickets by metrocard booths, near escalators, stairs or sitting on a subway car, a subway passenger cannot freely evade the panhandler’s pleas by moving elsewhere. Furthermore, allowing panhandling in narrow passageways may inhibit the flow of pedestrian traffic and result in more accidents in the subway system. For these reasons, the Transit Authority does not allow charitable solicitations and like forms of expression in these areas of the subway. See N.Y. COMP. CODES R. & REGS. tit. 21 § 1050.6. 186 Aggressive panhandling is almost universally considered unprotected speech, as it threatens the safety of people harassed by the aggressive panhandler and therefore the ban against it serves a compelling governmental interest. Thus it is constitutional to ban aggressive panhandling even if it constitutes a content-based restriction. See discussion supra note 160. 187 See supra note 185. 188 See Hershkoff & Cohen, supra note 86. 189 Underground beggars can reach millions of people and yet never need to worry about inclement weather. See Young v. New York City Transit Auth., 903 F.2d 146, 149 (2d Cir. 1990) (“The New York City Subway System transports approximately 3,500,000 passengers on an


be restricted to certain areas, operate within the safety requirements of the Transit Authority. Moreover, the public can continue to enjoy artistic performances, pick up a newspaper for the commute, and benefit from a safe and efficient subway system. Therefore, the Transit Authority should undertake a solution that is appreciated by all parties involved.

CONCLUSION

The New York Transit Authority should amend Section 1050.6 to

permit panhandling in the same restricted areas of the subway system where it currently allows charitable solicitations and ban only aggressive panhandling throughout the subway system. Because panhandling is now considered constitutionally protected speech on par with charitable solicitations, and once it has converted the subway from a nonpublic to a limited public forum, the Transit Authority cannot continue to ban panhandling in the subways but allow charitable solicitation and other forms of First Amendment expression. As it currently exists, Section 1050.6 is an unconstitutional content-based restriction that is not narrowly tailored to support the significant governmental interests of safety or efficiency.190 Though a possibility may exist to ban all First Amendment activity in the subway, this would constitute an unnecessary suppression of free speech that would inhibit not only panhandling, but artistic performances, charitable solicitors, leafleting, free newspaper distribution and more.191 Furthermore, by creating exceptions for non-transit uses of the subway system and by promoting artistic performances, the Transit Authority itself has demonstrated that it values the speech that it currently allows in the subways. Panhandling is a form of expression that is often suppressed and carries with it an important political message about the social consciousness of the homeless.192 A ban on aggressive panhandling is appropriate in this situation as it addresses the Transit Authority’s safety and efficiency concerns. Therefore, if the Transit Authority were to allow panhandling in areas where it currently allows charitable solicitations, but banned aggressive panhandling throughout the average workday, operates twenty-four hours a day, seven days a week.”). 190 See discussion supra, Part III.D.1 and 2. 191 N.Y. COMP. CODES R. & REGS. tit. 21 § 1050.6(c) lists the forms of speech that are expressly allowed in the subway. 192 Vincent Blasi of Columbia Law School commented:

You can stretch the First Amendment too far, and it loses its power if used to cover every imaginable activity involving words . . . . But begging is not only a very poignant plea. It’s inevitably a kind of commentary about the world, the distribution of wealth, the attitude of society toward poor people.

David Margolick, Freedom for Beggars: New Law for a New Age, N.Y. TIMES, Jan. 30, 1990, at A1.


subway, it would provide a mutually beneficial solution to the constitutional problem presented by Section 1050.6.

begging underground? the constitutionality of regulations...

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