New York Court of Appeals Reports

PEOPLE v. BARTON, 176 (N.Y. 12-19-2006) 2006 NY Slip Op 09499 The People & c., Respondent, v. Michael Barton, Appellant. 176. Court of Appeals of the State of New York. Decided on December 19, 2006.

Donald M. Thompson, for appellant.

William Taylor, for respondent.

Jeffrey Eichner, for intervenor City of Rochester.

New York Civil Liberties Union, amicus curiae.

READ, J.

On August 4, 2004, defendant Michael Barton was ticketed
for violating section 44-4(H) of the City of Rochester’s
Municipal Code when he allegedly waded into traffic on a
highway exit ramp in downtown Rochester, soliciting money
from motorists. Section 44-4 of the Code addresses
aggressive panhandling, and subsection (H) specifies that
“[n]o person on a sidewalk or alongside a roadway shall
solicit from any occupant of a motor vehicle that is on a
street or other public place.” The Code defines “solicit”
as “the spoken, written, or printed word or such other acts
or bodily gestures as are conducted in furtherance of the
purposes of immediately obtaining money or any other thing
of value” (Rochester City Code § 44-4[B]).
Violations are punishable by fines ranging from $25 to
$250, or an appropriate alternative sentence; a second
conviction within a year could result in imprisonment for up
to 15 days (Rochester City Code § 44-4[I]).

Section 44-4, approved by the City Council and the Mayor of
the City of Rochester in the spring of 2004, was nearly a
decade in the making, spurred by the increasing incidence
of panhandling in the downtown area and attendant citizen
complaints. Subsection (A) of section 44-4, entitled
“Legislative intent,” states that this provision was

“adopted in order to protect persons from threatening,
intimidating or harassing behavior, to keep public places
safe and attractive for use by all members of the
community and to maintain and preserve public places where
all of the community can interact in a peaceful manner.
This legislation is also intended to provide for the free
flow of pedestrian and vehicular traffic on the streets
and sidewalks in the City, to promote tourism and business
and preserve the quality of urban life”

(emphasis added). The Council loosely patterned section 44-4
after panhandling ordinances adopted in other cities,
including Atlanta, Baltimore, Cincinnati, New Haven, New
York City, Philadelphia, Portland, San Francisco, Seattle
and Washington, D.C.

As the Council’s President explained, subsection (H) of
section 44-4 was “aimed at specific conduct, and not at any
type of speech or expression,” because “the conduct itself
is offensive, for it leads to an interference with the free
flow of vehicular traffic and raises traffic safety and
traffic congestion concerns.” In particular,
“[s]olicitation of contributions from occupants of motor
vehicles is disruptive to the drivers of those vehicles and
diverts their attention from the traffic on the street.
Even if the vehicle is stopped, the driver is not paying
attention to potential hazards in the road, observing
traffic control signals, or preparing to move along the
street or through the intersection.” Further, section
44-4(H) treats all solicitation “the same whether it be for
an individual or a charity, and whether the cause may be
deemed by some to be favored or disfavored.”

On August 31, 2004, defendant moved to dismiss the
accusatory instrument lodged against him. He contended that
section 44-4(H) was overbroad in violation of the Free
Speech Clauses of the Federal and New York State
Constitutions. Defendant did not argue that section 44-4(H)
was unconstitutional as applied to him. Rather, he
complained that this provision impermissibly “impact[ed]
activities beyond its reach” as it applied not only to
aggressive panhandling, but “to anyone who would solicit”
motorists from the sidewalk, including an individual holding
up a sign simply stating “Food,” or participating in the
City firefighters’ annual “Fill-the-Boot” fundraising
campaign.

City court agreed, declaring section 44-4(H)
unconstitutional and dismissing the accusatory instrument.
The court cited Perry Ed. Assn. v Perry Local Educators’
Assn. (460 US 37, 45 [1983]) for the relevant
constitutional standard: “The state may . . . enforce
regulations of the time, place, and manner of expression
which are content-neutral, are narrowly tailored to serve a
significant government interest, and leave open ample
alternative channels of communication.” In City Court’s
view, section 44-4(H) was content-neutral, but lacked
narrow tailoring because it “allow[ed] for the prosecution
of those . . . guilty of nothing more than peacefully
asking for assistance” (8 Misc 3d 291, 298 [Rochester City
Ct 2004]). County Court reversed, concluding that section
44-4(H) was content-neutral, sufficiently narrowly
tailored, and left open ample alternative channels of
communication. The court observed that section 44-4(H) was
“aimed specifically at a certain type of conduct engaged in
at a certain location” — the “use [of] spoken or
written words or acts, for the purpose of immediately
obtaining money or any other thing of value from an
occupant of a motor vehicle that is on a street or other
public place” (12 Misc 3d 322, 330 [Monroe County Ct 2006]).
The court further pointed out that section 44-4(H) was not
overbroad because it applied to bona fide charitable
canvassing as well as to defendant’s soliciting. “Because a
statute is evenhanded and applies equally to all persons
conducting the same unwanted conduct does not make a
stature overbroad” (id.) In short, section 44-4(H)’s
“overbreadth, if any, [was] not substantial when judged in
relation to the [provision’s] plainly legitimate sweep”
(id.). Upon defendant’s application, a Judge of this Court
granted leave to appeal. We now affirm.

As an initial matter, for purposes of this appeal the
People do not contest, and we therefore assume, that
panhandling is speech or expressive conduct safeguarded by
the First Amendment, entitled to protection tantamount to
that afforded eleemosynary appeals by organized charities
(see Schaumburg v Citizens for a Better Environment, 444 US
620 [1980] [holding that there is sufficient nexus between
solicitation by organized charities and a variety of speech
interests to implicate First Amendment]). The United States
Supreme Court has yet to rule on this issue, and lower
courts have expressed differing views (e.g. compare Young v
New York City Transit Authority, 903 F2d 146, 154 [2d Cir
1990], cert denied 498 US 984 [1990] [sustaining prohibition
on begging in subways, reasoning that panhandling is not
constitutionally protected speech or expressive conduct
analogous to solicitation by organized charities: “Whether
with or without words, the 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”] with Loper v New York City Police Dept., 999 F2d
699, 704 [2d Cir 1993] [enjoining enforcement of statute
prohibiting public loitering for purposes of begging,
concluding that there is “little difference between those
who solicit for organized charities and those who solicit
for themselves in regard to the message conveyed,” and that
“[t]he distinction is not a significant one for First
Amendment purposes”]). Second, even though defendant’s own
conduct may be unshielded by the First Amendment, he
nonetheless may challenge section 44-4(H) as overbroad on
behalf of others whose constitutionally-protected
expression is potentially “chilled” by the provision’s very
existence (Broadrick v Oklahoma, 413 US 601, 610-613
[1973]).

The test for determining overbreadth is whether the law on
its face prohibits a real and substantial amount of
constitutionally protected conduct (see Houston v Hill, 482
US 451, 458 [1987]; Broadrick, 413 US at 615). “[T]he mere
fact that one can conceive of some impermissible
applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge” (Members of City
Council of Los Angeles v Taxpayers for Vincent, 466 US 789,
800 [1984]). Here, section 44-4(H) reaches any solicitation
intended to obtain immediate funds or things of value from
occupants of motor vehicles in Rochester’s streets or other
public places. Defendant claims that because section 44-4(H)
on its face concededly reaches “passive” panhandling
targeting motorists — specifically, someone standing
mute on the sidewalk, facing traffic in the street and
holding a sign requesting immediate money or food —
it is unconstitutionally overbroad. According to defendant,
section 44-4(H) thus runs afoul of the First Amendment
because it is not limited to panhandlers who act
aggressively, or solicit motorists successfully or actually
walk into a lane of stopped or moving traffic. As this
appeal is presented to us then, the parties dispute whether
section 44-4(H) is a reasonable time, place and manner
restriction once it sweeps defendant’s hypothetical passive
panhandler within its coverage.

“[C]ontent-neutral regulations of time, place, and manner
of expression are enforceable if they are narrowly tailored
to serve a significant government interest, and leave open
ample alternative channels of communication” (International
Soc. for Krishna Consciousness of new Orleans, Inc. v City
of Baton Rouge, 876 F2d 494, 497 [5th Cir 1989] [citing
Perry, 460 US at 45]; see also Matter of Rogers v New York
City Tr. Auth., 89 NY2d 692 [1997] [indicating that public
forum analysis under article 1, § 8 of State
Constitution mirrors federal standard]). In this case, the
governmental interests served by section 44-4(H) —
to eliminate a source of distraction for motorists and thus
promote the free and safe flow of traffic — are
significant. Further, section 44-4(H) is not a blanket ban
(cf. Loper, 999 F2d at 705). This provision does not
prohibit requests seeking something other than a handout.
Moreover, section 44-4(H) does not proscribe non-aggressive
soliciting directed at pedestrians on the sidewalk;
therefore, it leaves open ample alternative avenues to
communicate any message of indigency or need through
begging.

In determining whether a regulation is content neutral, the
principal inquiry is

“whether the government has adopted a regulation of
speech because of disagreement with the message it
conveys. The government’s purpose is the controlling
consideration. A regulation that serves purposes unrelated
to the content of expression is deemed neutral, even if it
has an incidental effect on some speakers or messages
but not others. Government regulation of expressive
activity is content neutral so long as it is justified
without reference to the content of the regulated speech”

(Ward v Rock Against Racism, 491 US 781, 791 [1989]
[quotation marks and citations omitted] [emphasis in
original]). Content neutrality is not negated because a
sign must be read by the police in order to determine
whether section 44-4(H) has been violated (i.e., whether the
sign’s message seeks to obtain money or any other thing of
value on the spot), as defendant argues. The Council’s
reason for adopting section 44-4(H) — to promote the
free and safe flow of traffic — is the relevant
consideration, and the ban covers all those asking motorists
for immediate donations, regardless of their message (see
Heffron v International Society for Krishna Consciousness,
Inc., 452 US 640, 648-649 [1981] [speech restriction
applying impartially to all persons or organizations,
whether charitable or commercial, is content neutral]).
Section 44-4(H) does not attempt to silence one particular
message; it does not frown on any particular viewpoint. Nor
is it important that section 44-4(H) may not reach every
speech-related side-of-the-road distraction or source of
traffic disruption in downtown Rochester; i.e., that it has
“an incidental effect on some speakers and messages but not
others.”

Next, although “a regulation of the time, place, or manner
of protected speech must be narrowly tailored to serve the
government’s legitimate, content-neutral interests . . . it
need not be the least restrictive or least intrusive means
of doing so” (Ward, 491 US at 798). Instead,

“the requirement of narrow tailoring is satisfied so long
as the . . . regulation promotes a substantial government
interest that would be achieved less effectively absent
the regulation. . . . So long as the means chosen are not
substantially broader than necessary to achieve the
government’s interest . . . the 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. The validity of
[time, place, or manner] regulations does not turn on a
judge’s agreement with the responsible decision maker
concerning the most appropriate method for promoting
significant government interests or the degree to which
those interests should be promoted”

(id. at 799 [quotation marks and citations omitted]).
Section 44-4(H) was designed to address a specific problem
brought to the Council’s attention: individuals seeking
handouts from occupants of motor vehicles on a public
thoroughfare or place, thereby creating a hazard and
slowing or snarling traffic. Because section 44-4(H)
focuses on specific conduct that the City has an interest
in controlling in order to further a significant content
neutral government interest, it is narrowly tailored.

Accordingly, the order of County Court should be affirmed.