U.S. at 805, 104 S.Ct. at 21 (citing Kovacs, 336 U.S. at 77,
69 S.Ct. at 448).
In support of its asserted power to maintain public order, the
City has adduced an affidavit of George Kelling, a professor at
the College of Criminal Justice at Northeastern University and
a fellow at Harvard University's Kennedy School of Government.
In his affidavit, Kelling, a consultant to several metropolitan
transit systems and the author of several research studies,
sets forth his "broken window theory." The theory posits that,
just as broken windows left untended are a sign of neglect and
lead to more serious destruction and vandalism, so disorderly
behavior when left untended leads to more serious crime. The
"broken window theory" therefore constitutes expert testimony
to support the City's interest in preventing disorderly
behavior, lest such behavior lead to serious crime the
prevention of which is within the police power of the City.
However, no objective facts supporting the theory have been
adduced, such as the number of beggars, where they beg and the
effect of their begging both for them and the community.
The City must establish some factual record upon which it can
be concluded that its interest in curbing disorderly behavior
is "substantial." Central Hudson Gas & Elec., supra, 447 U.S.
at 566, 100 S.Ct. at 2351. Here, there is no evidence to
establish the alleged deleterious effects of begging, nor any
statistics on the enforcement of the Penal Law, the places of
enforcement, or the effects of enforcement. Other than
anecdotally, the court has no reliable portrayal of the extent
of the problem and its effect on the public interest. It is not
enough to pose the legal issues naked of any factual record.
(b) Fraud Prevention
In addition to its interest in protecting citizens from those
"methods of expression which may legitimately be deemed a
public nuisance," the City arguably has an additional interest
when it seeks to protect its citizens from expressive conduct
involving solicitation: fraud prevention. See Gertz v. Robert
Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41
L.Ed.2d 789 (1974) ("Untruthful speech, commercial or
otherwise, has never been protected for its own sake.").
Indeed, the State's interest in preventing fraud is
encapsulated in the requirement for the purposes of commercial
speech analysis that the speech sought to be regulated not be
"misleading." Central Hudson Gas & Elec., 447 U.S. at 566,
100 S.Ct. at 2351. In Riley, the State of North Carolina
advanced the argument that the statute was narrowly tailored to
the State's interest in preventing fraud. The Court
acknowledged that "the interest in protecting charities (and
the public) from fraud is, of course, a sufficiently
substantial interest to justify a narrowly tailored
regulation," Riley, 487 U.S. at 792, 108 S.Ct. at 2675, but
concluded that such an interest did not justify a statute that
restricted speech when the State had other means (albeit less
efficient ones) of preventing occurrences of such fraud,
e.g., antifraud statutes and disclosure requirements for
charities. Id., at 795, 108 S.Ct. at 2676.
Certainly this interest in preventing fraud holds true in the
case of begging as much as in the case of solicitation by an
organized charity. The City and private organizations offer
various services to provide food and shelter for the needy.
Various City and State welfare programs furnish money and other
benefits to those who meet specified qualifications. Therefore,
whenever a person asks for money from passersby on the grounds
that he is needy in some way, such speech may be in part
fraudulent if indeed he is not truly needy because he can make
use of these various welfare benefits.
However, the absence of evidence on this submission makes it
impossible to determine the weight to be accorded the City's
interest in fraud prevention. Nothing speaks to the
effectiveness of the regulation in achieving this goal, nor is
the availability of alternate means considered.*fn9
In sum, the existence of unresolved factual issues concerning:
the historical treatment of begging: the rationale behind and
the enforcement of the Penal law; and the nature of the City's
police power and fraud prevention interests preclude granting
the City's summary judgment motion at this time. Deciding the
motion without the necessary facts would be like listening to
the Three Penny Opera without the music of Kurt Weill.
II. Other Claims
As the factual issues relevant to Loper and Kaye's First
Amendment claims remain, the court need not now consider the
City's motion with regard to Loper and Kaye's other claims.
Presumably, the discovery that will ensue will elicit facts
applicable to the determination of these other claims.
For the reasons set forth above, both summary judgment motions
are denied at this time, with leave to renew upon further
It is so ordered.