While it is true that the Defendants have an interest in preventing fraud, and it is true that Government and private organizations go to great lengths to try to address the problems faced by the homeless, even a casual reader of the newspaper knows that these services do not meet the great need presented. See also New York City Commission on the Homeless, The Way Home: A New Direction in Social Policy 4 (Feb. 1992) ("Despite the unprecedented level of resources and energy devoted to addressing the problem of homelessness, not a single member of this Commission, nor any New Yorker with whom we have spoken, would claim a job well done."). The availability of services is therefore at best equivocal.
As for the inability to track what people do with the funds received, this too must be examined in light of the blanket ban the Statute presents. Even if society is truly bothered by such problems, it is doubtful that it is prepared to borrow a page from English history and license the truly needy. See Young, 729 F. Supp. at 353. The conversion of begging into a licensed profession would demonstrate the barrenness of the societal response to the underlying problem.
Finally, the Defendants note that panhandling is rife with possibilities for misleading those who are the subjects of the panhandler's entreaty. Daily experience demonstrates the veracity of this position, and the Defendants have presented some evidence to that effect. Nevertheless, this type of vague allegation cannot support a blanket ban on speech. ISKCON III, U.S. at , 112 S. Ct. at 2726 (Souter, J., dissenting). Those cases that do allow a partial ban on solicitation for reasons of fraud or coercion do so only in the absence of a complete ban on solicitation, contrary to the provisions of this Statute. See U.S. at , 112 S. Ct. at 2723 (Kennedy, J., concurring); Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 477 (1988).
5. The Outcome of the Balancing Test
"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive and disagreeable." Johnson, 491 U.S. at 414.
This principle imposes an inevitable burden on a certain segment of the society that requires them to sacrifice a portion of their privacy and comfort as they enter into the interpersonal world of the society that surrounds them. This principle requires a trade-off: When leaving the insular security of one's home and becoming a participant in the world organized by society, one interacts with its elements. This necessarily includes those who have different viewpoints and backgrounds. Paying attention is not a requirement. Instead, ignoring or answering back with more speech is a reciprocal privilege. In turn, if the disturbing message has substance, the hope is it will be heeded in due time, and society strengthened through resilience, not rigidity. See id. at 419.
Here, the Court is presented with a Statute that imposes a blanket ban on conduct with an expressive component entitled to some First Amendment protection. It does this in a manner directed at the content of that expression by allowing the organized charity to solicit on the street while preventing the unorganized beggar from doing so. See supra note 10. While the Government has a valid interest in preventing fraud, preserving public order, and protecting and promoting the interests of audiences and bystanders, the interest in permitting free speech and the message begging sends about our society predominates. Section 240.35(1) is therefore unconstitutional under the First Amendment to the United States Constitution, as applied to the states.
IV. The Other Claims
The Plaintiffs also attack the Statute under the Eight and Fourteenth Amendments to the United States Constitution. In light of the above and because only declarative relief is sought, it is not necessary for the Court to address these claims. The Court does note, however, that the Eight Amendment claim, which contends the Statute creates a status offense, has little merit.
As to claims against the Statute under the New York State Constitution, the Court abstains from considering these claims. See Young, 903 F.2d at 163-64.
For the reasons set forth above, the Plaintiffs' motion for summary judgment is granted and the Defendants' motion is denied. Section 240.35(1) is deemed unconstitutional. Judgment for the Plaintiffs and a permanent injunction barring the Defendants from enforcing the Statute will be entered.
It is so ordered.
New York, N. Y.
September 30, 1992
ROBERT W. SWEET