People v. Schrader

• Decision Date: 09 September 1994
• Docket Number: AP-1
• Citation: 617 N.Y.S.2d 429,162 Misc.2d 789
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Eric SCHRADER, Defendant
• Court: New York City Court

Page 429

617 N.Y.S.2d 429

162 Misc.2d 789

The PEOPLE of the State of New York, Plaintiff, v. Eric SCHRADER, Defendant.

Criminal Court of the City of New York New York County, AP-1.

Sept. 9, 1994.

Robert M. Baum, The Legal Aid Soc., New York City, Lori M. Koch and Laura Johnson, of counsel, for defendant.

Robert M. Morgenthau, Dist. Atty., New York County, New York City, Cheryl Feldman, of counsel, for People.

JOHN CATALDO, Justice.

Defendant is charged with one count of Unlawful Solicitation in the Subway, a violation under New York City Transit Authority Rule § 1050.6(b)(2) (21 NYCRR 1050.6[b][2]. He seeks dismissal of the accusatory instrument upon the ground that 21 NYCRR 1050.6(b)(2) ¹, which bans all begging in the New York City transit system, is violative of freedom of speech as guaranteed by the New York Constitution, Article 1, § 8.

I. Background

The question of the constitutionality of 21 NYCRR 1050.6(b) under the United States Constitution was previously the issue of litigation in the federal courts in Young v. New York City Transit Authority, 729 F.Supp. 341 (S.D.N.Y.), rev'd, 903 F.2d 146 (2d Cir.), cert. denied, 498 U.S. 984, 111 S.Ct. 516, 112 L.Ed.2d 528. In Young, a class action suit brought on behalf of the homeless, the plaintiffs sought a preliminary injunction against the enforcement of the transit rule, asserting it infringed on their right to free speech under the First Amendment of the U.S. Constitution.

The District Court, Judge Leonard B. Sand, relying upon the Supreme Court's Schaumburg Trilogy of cases which held that solicitation of funds by charitable organizations was protected speech activity, concluded that begging was likewise constitutionally protected speech (see, Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73; Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786; Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669). Furthermore, the District Court found that by virtue of the 1989 revisions to 21 NYCRR 1050.6(b) & (c) ² which allowed some speech activities within the transit system, including solicitation by registered charities, the New York City Transit Authority (hereinafter "TA") had created a designated public forum, requiring analysis under the strict scrutiny test of Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794. The Perry test requires that content-based restrictions on protected speech in traditional or designated public fora must serve a compelling state interest and be narrowly drawn to achieve that end. The court concluded that the regulation was not narrowly tailored to serve the governmental interest of protecting the public from harassment and intimidation, in that the rule was not limited to aggressive beggars but totally banned passive beggars as well.

On appeal, a divided Second Circuit panel reversed (Young, 903 F.2d 146, supra ). The Second Circuit declined to follow the analysis of begging as equal to charitable solicitations, finding instead that begging was primarily conduct. In order for conduct to receive First Amendment protection, it must convey a particularized message with a great likelihood of the message being understood by those who view the conduct. In other words, burning a flag might be conduct without any message, or it might have an expressive element, such as an antiwar message. The circumstances surrounding where, when and how the act occurred must be analyzed to determine whether a message was conveyed (see, e.g., Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342; Spence v. State of Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842; Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731). The Second Circuit reasoned that merely asking for money did not amount to a message likely to be understood by the subway passengers being solicited. In order for a beggar to engage in expressive conduct conveying a particularized message necessary to obtain First Amendment protection, the court posited that the beggar would need to impart to the public a social or political message, rather than merely seeking money for his or her own needs (Young, supra, 903 F.2d at 153). The court went on to state that even if begging were expressive conduct, it would only be subject to the test set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 for symbolic speech, a lesser test than that required for pure speech under Perry, supra. The O'Brien test states that governmental regulations on conduct with expressive elements are sufficiently justified if: (1) it is within the constitutional power of the government to enact the law; (2) it furthers an important or substantial governmental interest; (3) the interest is unrelated to the suppression of free expression, and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest (O'Brien, supra, 391 U.S. at 377, 88 S.Ct. at 1679). The Second Circuit found the ban on begging met the O'Brien test in that it served an important governmental interest in protecting the public safety. The Second Circuit further reasoned that even under a Perry analysis, the subways were a nonpublic forum or at most a limited public forum, open only to certain groups and specified speech activities, but expressly not intended to be open to begging by individuals. Additionally, the Second Circuit held that jurisdiction did not exist in this particular case to decide the constitutionality of Penal Law § 240.35(1)'s ban on loitering for the purpose of begging, and vacated a finding of the District Court that it violated due process under the New York Constitution.

Thereafter, the constitutionality of Penal Law § 240.35(1) was again the subject of litigation in the federal courts in Loper v. New York City Police Department, 802 F.Supp. 1029 (S.D.N.Y.), aff'd, 999 F.2d 699 (2d Cir.). Penal Law § 240.35(1) reads: "A person is guilty of loitering when he * * * [l]oiters, remains or wanders about in a public place for the purpose of begging". The Second Circuit in Loper, in examining the constitutionality of the statute under the First Amendment, resolved the question left open by Young as to whether or not begging was entitled to any protection under the Federal Constitution. In accordance with recent Supreme Court cases decided subsequent to its own decision in Young, definitively reaffirming the principles of the Schaumburg Trilogy of cases, the Second Circuit concluded that no significant distinction could be made between begging for charity for oneself, and asking for charity for persons other than oneself (see, International Society for Krishna Consciousness, Inc. v. Lee [ISKCON v. Lee], 505 U.S. ----, 112 S.Ct. 2701, 120 L.Ed.2d 541; United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571). Begging was found to be speech entitled to First Amendment protection, whether or not it was accompanied by any verbal message (Loper, supra, 999 F.2d at 704). Loper determined that the total ban on begging on the streets, a traditional public forum for speech activities, failed First Amendment analysis under both the Perry strict scrutiny test, and the less restrictive test of O'Brien. The stated governmental interests were insufficient to justify a total ban on begging, whether peaceful or aggressive, in all public places. Loper, however, distinguished Young, stating that its conclusion that begging could be banned in the subways remained valid under the special circumstances involved within the close confines of the transit system (Loper, supra, 999 F.2d at 702-703).

In light of this history, the defendant maintains that the New York Constitution, Article 1, § 8, provides greater speech protection than the First Amendment, and that even if Young remains viable in light of Loper, 21 NYCRR 1050.6(b) cannot pass constitutional muster under New York's broader free speech protections. Defendant asserts that People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 510 N.Y.S.2d 844, 503 N.E.2d 492 is controlling and that under the test of Arcara, the People have failed to demonstrate that the transit rule is no broader than necessary to accomplish a legitimate and important State objective.

The People counter that begging is mere conduct under the law of New York, equating it to conduct that lacks a particularized message, such as the nude sunbathing found not to be expressive activity entitled to any free speech protection in People v. Hollman, 68 N.Y.2d 202, 507 N.Y.S.2d 977, 500 N.E.2d 297. Even if begging were found to be protected speech, the People assert that the ban on begging within the confines of the subway system, a nonpublic or at most limited forum, meets constitutional standards under both the Federal and New York Constitutions. The People state that even if Arcara is the applicable standard for analysis of the begging rule under New York law, the ban on begging in the transit system meets the Arcara standard.

II. Is Begging Protected Speech?

Before examining the defendant's contention that the New York Constitution provides greater protection to begging than federal law, the court must first examine the current status of the right to beg under the Federal Constitution. In Loper, the Second Circuit found that begging was a form of speech, likening begging to solicitation by charitable organizations (999 F.2d at 704). The Supreme Court itself has repeatedly reaffirmed that the right to solicit funds through face-to-face encounters between solicitor and contributor is protected speech under the First Amendment, whether for religious, charitable or political causes (see, e.g., ISKCON v. Lee, supra, 505 U.S. at ----, 112 S.Ct. at 2705; ...