Young v. New York City Transit Authority
| Decision Date | 10 May 1990 |
| Docket Number | 1171 and 1202,D,Nos. 1170,s. 1170 |
| Parties | William B. YOUNG, Jr., and Joseph Walley, on behalf of themselves and all other persons who are similarly situated; and Legal Action Center for the Homeless, Plaintiffs-Appellees, Sheron Gilmore, Plaintiff-Intervenor-Appellee, v. NEW YORK CITY TRANSIT AUTHORITY, Metropolitan Transportation Authority of the State of New York, Metro-North Commuter Railroad Company, The Long Island Rail Road Company, The Port Authority of New York and New Jersey, and Robert R. Kiley, as Chairman of the New York City Transit Authority, the Metropolitan Transportation Authority of the State of New York, the Metro-North Commuter Railroad Company, and the Long Island Rail Road Company, and Robert Abrams, as Attorney General of the State of New York, Defendants-Appellants, Philip D. Kaltenbacher, Chairman, Robert F. Wagner, Sr., Vice-Chairman, Hazel Frank Gluck, James G. Hellmuth, Henry F. Henderson, Jr., William K. Hutchison, Richard C. Leone, Basil Patterson, John G. McGoldrick, William J. Ronan, Howard Schulman, and Robert Van Buren, as the Board of Commissioners of the Port Authority of New York and New Jersey, Appellants. ockets 90-7115, 90-7137 and 90-7183. |
| Court | U.S. Court of Appeals — Second Circuit |
George Sommers (John E. Kirklin, Geoffrey Potter, Douglas Lasdon, Patrick Horvath, the Legal Action Center for the Homeless, New York City, of counsel), for plaintiffs-appellees.
Adam S. Cohen (Jane E. Booth, Kalman Finkel, Helaine M. Barnett, The Legal Aid Soc., New York City, of counsel), for plaintiff-intervenor-appellee.
Susan E. Weiner (Floyd Abrams, Cahill, Gordon & Reindel, New York City, of counsel), for defendants-appellants New York City Transit Authority, Metropolitan Transportation Authority, Metro-North Commuter R.R., Long Island Rail Road, and Robert R. Kiley.
Joseph Lesser (Arthur P. Berg, Arnold D. Kolikoff, Carlene V. McIntyre, James M. Begley, New York City, of counsel), for defendants-appellants Port Authority of New York and New Jersey and the Com'rs thereof.
O. Peter Sherwood, Sol. Gen. , for defendant-appellant Robert Abrams.
Norman Siegel (Robert Levy, Steven Glauberman, the New York Civil Liberties Union Foundation, New York City, of counsel), for amicus curiae New York Civil Liberties Union Foundation.
Before TIMBERS, MESKILL and ALTIMARI, Circuit Judges.
The central issue on this appeal is whether the prohibition of begging and panhandling 1 in the New York City subway system violates the First Amendment of the United States Constitution. Defendants-appellants New York City Transit Authority ("TA") and Metropolitan Transportation Authority of the State of New York ("MTA") appeal from a judgment entered in the United States District Court for the Southern District of New York, (Leonard B. Sand, Judge ), permanently enjoining the TA from the enforcement of N.Y.Comp.Codes R. & Regs. tit. 21, Sec. 1050.6 (1989) ("21 N.Y.C.R.R. Sec. 1050.6" and "Sec. 1050.6"), a regulation prohibiting begging and panhandling in the subway system. They are joined by defendants-appellants Metro-North Commuter Railroad Company ("Metro-North"), Long Island Rail Road Company ("LIRR") and Port Authority of New York and New Jersey ("Port Authority") to the extent that the district court's judgment enjoins the enforcement of the prohibition against begging in their respective transit facilities. In addition, defendants-appellants New York State Attorney General Robert Abrams ("Attorney General") and Port Authority appeal from that portion of the district court's judgment holding New York Penal Law Sec. 240.35(1) (McKinney 1989) ("N.Y. Penal Law Sec. 240.35(1)" and "Sec. 240.35(1)") to be unconstitutional under the New York State Constitution.
Upon request of the TA and the Port Authority, this Court issued a complete stay pending appeal of the district court's judgment and expedited the appeal on February 7, 1990. On this appeal, as in the district court, the TA argues that begging is not expression protected by the First Amendment, that the subway is not a designated public forum for begging, and that the TA's regulation prohibiting begging is a reasonable time, place, or manner restriction. The Port Authority and the Attorney The district court concluded that begging constitutes a type of speech that merits the full protection of the First Amendment. Absent an analysis as per United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and an appropriate reading of Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), hereinafter discussed at some length, we might be inclined to agree.
General argue, inter alia, that the plaintiffs failed to allege an actual case or controversy in connection with the New York Penal Law, and they join in the contention that begging is not protected expression under the First Amendment.
We do not think, however, that the regulation is directed at speech itself and must be justified by the substantial showing of need that the First Amendment requires. Indeed, the regulation expressly authorizes public speaking and the distribution of written materials. We conclude, therefore, that the regulation is justified by governmental interests that are content neutral and unrelated to the suppression of free expression. Consequently, the regulation comes under the more relaxed level of scrutiny contemplated in O'Brien and developed in several recent Supreme Court cases. Pursuant to the O'Brien standard, we have no doubt that the regulation comports with the First Amendment.
For the reasons set forth below, we reverse and vacate that part of the district court's judgment enjoining the enforcement of 21 N.Y.C.R.R. Sec. 1050.6 as in contravention of the First Amendment, and we vacate that part of the judgment declaring N.Y. Penal Law Sec. 240.35(1) to be violative of the New York State Constitution.
On November 28, 1989, the Legal Action Center for the Homeless ("LACH") filed suit in the district court on behalf of itself and two homeless men, William B. Young and Joseph Walley, as representative plaintiffs for a class of homeless and needy persons who beg and panhandle in the New York City subway system. The gravamen of the complaint was that the prohibition of begging and panhandling in the subway contravenes the rights to free speech, due process and equal protection of the law. Specifically, the complaint alleged that the enforcement of 21 N.Y.C.R.R. Sec. 1050.6 violated the First and Fourteenth Amendments of the United States Constitution, Article I, Secs. 6, 8 and 11 of the New York State Constitution, and 42 U.S.C. Secs. 1981 and 1983. Pending the district court's action in declaring the prohibition unconstitutional, the plaintiffs also sought certain preliminary and injunctive relief. Accordingly, they entreated the district court to restrain the defendants from enforcing the prohibition, and to require the defendants to disseminate information throughout the subway system that begging and panhandling are lawful activities.
LACH named the TA, MTA and Metro-North as defendants. Under the direction of the MTA, the TA is empowered to establish regulations governing passenger conduct, in order to facilitate an effective, safe and reliable means of public transportation. N.Y.Pub.Auth.Law Sec. 1201 et seq. (McKinney 1982 & Supp.1990). Towards this end, the TA has maintained a longstanding ban on begging and panhandling in the subway system. 21 N.Y.C.R.R. Sec. 1050.6.
In January 1989, the MTA and TA approved the commencement of a rule-making process to amend 21 N.Y.C.R.R. Sec. 1050.6. The existing regulation stipulated that "no person, unless duly authorized ... shall upon any facility or conveyance ... solicit alms, subscription or contribution for any purpose." Sec. 1050.6(b). The process, which included four public hearings, did not alter Sec. 1050.6(b), but only added a provision, Sec. 1050.6(c). The amendment permits greater utilization of the transit system for certain non-commercial activities such as: "public speaking; distribution of written materials; solicitation for charitable, religious or political causes; and artistic performances, including the acceptance of donations." Sec. 1050.6(c). Pursuant to the amended regulation, these non-transit uses are subject to certain place restrictions.
In particular, solicitation for charitable, religious or political causes is 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, Sec. 1050.6(c)(1), in any "location which interferes with access onto or off an escalator, stairway or elevator," Sec. 1050.6(c)(2), and "on a subway platform while construction, renovation or maintenance work is actively underway on or near the platform ...," Sec. 1050.6(c)(3). The amended regulation, which continues the TA's long-standing ban against begging and panhandling, became effective in October 1989.
At that time, the TA commenced "Operation Enforcement", a program designed to implement more effectively the long-standing prohibition on begging and panhandling in the subway. At the outset of Operation Enforcement, the TA distributed 1,500,000 pamphlets that summarized eleven TA rules, including "No panhandling or begging." The TA rules were also displayed on 15,000 posters throughout the subway system. Both the pamphlets and the posters warned that violation of the TA rules could lead to arrest, fine and/or ejection. Plaintiffs Young and Walley acknowledge in affidavits submitted to the district court that they saw the posters and pamphlets during the information...
To continue reading
Request your trial
-
Loper v. New York City Police Dept.
... ... Ex. A (July 17, 1992), the Statute is used by the Department as a source of authority for restricting the Plaintiffs' assumed rights. As such, the Plaintiffs have suffered a concrete ... See Kelling Aff.; see also Young v. New York City Transit Authority, 903 F.2d 146, 149-50 (2d Cir.) (discussing the exigencies ... ...
-
Schulz v. New York State Executive, Pataki
...for them a surer-footed reading of applicable law." Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139; see also Young v. New York City Transit Authority, 903 F.2d 146, 163-64 (2d Cir.1990). "A district court ought not `reach out for ... issues, thereby depriving state courts of opportunities to deve......
-
Kiesinger v. Mexico Academy and Cent. School
... ... United States District Court, N.D. New York ... March 31, 2006 ... Page 183 ... COPYRIGHT ... Hotel Employees & Rest. Employees Union Local 100 v. City of New York Dep't. of Parks & Recreation, 311 F.3d 534, ... platforms opened to charitable solicitations, see Young v. N.Y.C. Transit Auth., 903 F.2d 146, 161-62 (2d Cir.), ... The latter question concerns educators' authority over school-sponsored publications, theatrical productions, ... ...
-
Hotel & Rest. Employees Union v. Ny Dept. of Parks
... ... & RESTAURANT EMPLOYEES UNION, LOCAL 100 OF NEW YORK, N.Y. & VICINITY, AFL-CIO, Henry J. Tamarin, as President ... CITY OF NEW YORK DEPARTMENT OF PARKS & RECREATION, Henry J ... See generally Edgar B. Young, Lincoln Center: The Building of an Institution 140-41, ... Lincoln Center, Inc.'s scheduling authority does not extend to Damrosch Park. The License Agreement ... N.Y.C. Transit Auth., 903 F.2d 146, 161-62 (2d Cir.), cert. denied, 498 ... ...
-
Homeless legal advocacy: new challenges and directions for the future.
...aggressive solicitations by prohibiting solicitations in specified locations). (157.) See, e.g., Young v. N.Y. City Transit Auth., 903 F.2d 146, 147 (2d Cir. 1993) (challenging regulations prohibiting begging and panhandling in transit facilities); Roulette, 850 F. Supp. at 1442 (ordinance ......
-
The First Amendment's purpose.
...of money. Speech simply is not inherent to the act; it is not of the essence of the conduct." Young v. New York City Transit Auth., 903 F.2d 146, 154 (2d Cir. 1990) (Altimari, J.). This is like saying: "Whether with or without words, the object of electoral advertising is the accumulation o......