## Facts

- The New York City Transit Authority adopted Rule 1050.6(c), prohibiting “begging and panhandling” in the New York City subway system.
- The rule permitted limited solicitation by charitable, religious, or political organizations in specified areas.
- Plaintiffs were homeless individuals who solicited money for themselves in the subway and claimed the ban violated the First Amendment.
- Plaintiffs also challenged New York Penal Law § 240.35(1) (loitering for the purpose of begging) under the New York Constitution.
- The Transit Authority justified the ban as a content-neutral measure to maintain safe and reliable transportation and to address rider complaints of harassment and intimidation in a crowded, confined environment.

## Issues

1. Whether the subway prohibition on begging and panhandling violates the First Amendment.
2. Whether a federal court may declare New York Penal Law § 240.35(1) unconstitutional under the New York Constitution on the record presented.

## Decision

- The Second Circuit reversed the district court’s First Amendment ruling and upheld the ban on begging and panhandling.
- The court treated the subway as a nonpublic (or limited) forum dedicated to transportation, permitting reasonable, viewpoint-neutral restrictions to preserve that use.
- The court assumed arguendo that begging had some First Amendment component, but held the rule valid under the United States v. O’Brien test for incidental burdens on expressive conduct.
- The court vacated the district court’s ruling invalidating New York Penal Law § 240.35(1), finding no justiciable case or controversy as to that statute in federal court.

## Legal Principles

- Begging may be characterized as predominantly conduct with minimal communicative content; it is not necessarily equivalent to charitable solicitation, which typically combines advocacy with fundraising.
- In a nonpublic forum, the government may impose reasonable, viewpoint-neutral restrictions to preserve the property for its intended purpose.
- Under United States v. O’Brien, a content-neutral regulation incidentally affecting expression is valid if it is within governmental power, furthers a substantial interest, is unrelated to suppressing expression, and is no greater than essential to further that interest.
- Federal courts should not adjudicate or invalidate state statutes on purely state-constitutional grounds absent a concrete, justiciable controversy.

## Conclusion

The Second Circuit upheld the Transit Authority’s subway-wide ban on panhandling as a content-neutral restriction justified by transportation safety and order concerns and permissible under O’Brien in a nonpublic forum, while vacating the district court’s state-constitutional ruling on New York’s loitering-for-begging statute for lack of a justiciable federal controversy.


Young v. N.Y.C. Transit Auth., 903 F.2d 146 (2d Cir. 1990)