Are Topless Panhandlers Covered by the First Amendment?

Are Topless Panhandlers Covered by the First Amendment?

New York City Mayor Bill de Blasio raised the possibility of dismantling Times Square’s popular pedestrian plaza to deal with complaints about a surge of topless and costumed panhandlers at one of the world’s busiest crossroads.

As The Wall Street Journal reports, the idea floated by the mayor and endorsed by the city’s police commissioner prompted a backlash from transportation advocates, city politicians and Times Square businesses. But it also renewed long-standing legal questions about regulating panhandling in public places.

Some legal experts say should the city, in the words of Police Commissioner William Bratton, “dig the whole damn thing up,” it would run into constitutional hurdles, particularly in light of recent court decisions expanding First Amendment freedoms.

The city would have to meet the strictest of First Amendment standards, South Texas College law professor Josh Blackman predicts. Such scrutiny would require the city to show that its crackdown is both narrowly tailored and advances a compelling government interest.

“Such a decision….would be subject to strict scrutiny and would be invalidated,” Mr. Blackman writes.

Nothing prevents the city from ticketing beggars who are engaging in actual harassment. But the professor says sweeping actions like reopening the whole plaza to vehicle traffic would be vulnerable to court challenges.

Mr. de Blasio, as WSJ reported, said re-engineering the plaza could reduce the congregation of the square’s high-profile panhandlers, including women who go topless and others who are costumed as children’s characters.

“It’s quite evident this is turning into a business,” he said of the panhandling. “We’ve certainly heard enough reports of how aggressively this business is being pursued. Clearly, a lot of people are very uncomfortable with it, I understand why, and I agree. On a common sense level, this is not appropriate in the middle of a public square.”

The mayor’s comments came as he formed a city task force to look at other ideas to clean up Times Square.

A spokeswoman for the mayor, Karen Hinton, told Law Blog by email that Mr. Blackman is “jumping to the wrong conclusions.” Said Ms. Hinton:

No decision about any of the options has been made. Bringing together the city’s experts on constitutional law, planning, transportation, and law enforcement, the task force will make its recommendations by October 1st.

The mayor has strongly expressed his concern about the constitutional issues and has said there’s no reason to take actions that would only land the city in court over First Amendment rights.

The power of the city to impose restrictions that target toplessness is less clear.

In 1992, the state’s highest court ruled in favor of women who were arrested for going topless in a Rochester public park, saying that restricting women — but not men — from baring their chests discriminates on the basis of sex. But the court said its ruling applied only to women who aren’t engaging in commercial activity.

“[It isn’t clear if topless women asking for money would be commercial,” Mr. Blackman tells Law Blog.

“It sounds like it is commercial,” First Amendment expert and legal blogger Eugene Volokh told the New York Times. “The city could say if you are naked in a public place for a commercial purpose, we are going to apply the law to you.”

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