Note: Giuliani, Broken Windows, and the Right to Beg

Peter A. Barta

Juris Doctor, cum laude, Georgetown University Law Center; Class of 1999; Bachelor of Arts, magna cum laude, New York University, 1996

In Giuliani, Broken Windows, and the Right to Beg , Peter A. Barta sets forth the plight of New York City's homeless under Mayor Giuliani's "Broken Windows" zero-tolerance crime-control regime. Through powerful vignettes which bring to bear the harsh realities of homelessness and panhandling, the Note critiques New York City's prohibition on begging in the subway system. The Note argues that the ban violates the First Amendment free speech guarantee. In setting forth the argument, the article compares the Second Circuit Court of Appeals' decision in Young v. New York City Transit Authority , which upheld the restriction, with the court's more recent holding in Loper v. New York City Police Department , which invalidated New York State's prohibition on panhandling on public streets. After discussing the applicable legal tests (content-based restrictions versus content-neutral restrictions, forum analysis, and the O'Brien four-part test), the Note concludes that New York City's ban on subway panhandling, and Young (which upheld the regulation) are inconsistent with the teachings of Loper . Specifically, the prohibition on subway begging should be classified as a content-based restriction, and hence, subject to strict scrutiny. Even if O'Brien were to apply, however, the Note argues that the regulation is more restrictive than necessary to further the governmental interest in ensuring public safety and preventing aggressive and fraudulent panhandling.

Vol. VI, No. 2, p. 165 (1999)

 

Revised July 17, 2003 (MD)