Does the First Amendment Cover Panhandlers…Who Are Topless?

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Summary: The mayor of New York is considering major changes to Times Square to eliminate the swarms of topless panhandlers that gather there every day.

Bill de Blasio, the mayor of New York City, has an interesting dilemma on his hands. In response to a rise in complaints about panhandlers at Times Square, the mayor is considering disassembling the popular pedestrian plaza.

  

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The issue with the panhandlers? Some are not wearing tops.

According to the Wall Street Journal, the mayor’s idea has been endorsed by the police commissioner. However, transportation advocates, some city politicians, and a number of Times Square businesses have fought back against the idea. Now, legal issues about regulating public panhandling have emerged again.

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Some experts note that if the city decides to “dig the whole damn thing up,” to use the phrasing of Police Commissioner William Bratton, it would face several constitutional issues.

Josh Blackman, a law professor at South Texas College, said it would be likely that the city would have to meet the most stringent of First Amendment standards. The city would have to show that the new rules are narrowly tailored and advance a compelling government interest.

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

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The city is allowed to ticket those who harass others. According to Blackman, reopening the entire area to traffic would face several court challenges.

The mayor argues that reopening the area to vehicles would reduce gathering of the most popular panhandlers, such as topless women and those who wear costumes of children’s characters.

He said, “It is quite evident this is turning into a business. 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.” According to the New York Post, some of these girls are even posing with underage teenage boys.

A task force has been formed to check out other ideas to straighten the hot tourist spot up a bit.

Karen Hinton, a spokeswoman for the mayor, said that Blackman is “jumping to the wrong conclusions.” Hinton remarked, “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.”

In 2012, a New York court ruled that it is unconstitutional to zone strip clubs, topless bars, and adult video and book stores away from schools and churches.

So why not just tell women to keep their tops on?

In 1992, New York courts ruled in favor of women who were arrested for going topless in public parks. The court’s order stated that restricting women, but not men, from showing their chests was sex discrimination. The court did not, however, that the ruling was limited to women who were not involved in some sort of commercial activity.”

Blackman commented, “It isn’t clear if topless women asking for money would be commercial.” The New York Daily News also adds that some of the women have bosses who take up to 30% of their earnings.

Eugene Volokh, a First Amendment expert, thinks it is. “It sounds like it is commercial. 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.”

Source: Wall Street Journal

Photo credit: NY Post