Jason Riegert, Albany Government Law Review Member
Every day, young women in this country are faced with challenges. One challenge that many women face are “catcalls.” A catcall is “a loud whistle or a comment of a sexual nature made by a man to a passing woman.” An example of a catcall might be something as innocent as: “hey baby, what’s up?,” if shouted to a female stranger passing by. While such remarks may appear harmless, the problem that arises from these catcalls is a question of harassment. Are these statements being said in a way that threatens women, or are these simply a form a flattery that women should take as compliments? Those are the questions that the New York City Council Committee on Women’s Issues is attempting to answer. The committee met October 28, 2010 to discuss the potential of banning “cat-calls” in New York City.
At the meeting, testimony was heard “from women who said men regularly follow them, yell at them and make them feel unsafe and uncomfortable.” A number of women were called in to discuss the effects that catcalling has had on their lives, stating “[t]his harassment limits the rights and freedoms of women and girls to enjoy a simple walk outside . . . .” These women gave examples of the challenges they face and described the problem as being “an issue of safety.” One organization, known as “Hollaback,” was formed five years ago to stand up to such harassment and “is now pushing the city to commission a study, a public awareness campaign, and perhaps even legislation creating ‘no-harassment zones’ around schools to protect young women.” While Council members are open to many of the ideas, they are still in the process of determining what can be done about street harassment. If legislation is put into effect, a vital issue will be enforcement, “since the concept of no-harassment zones could encroach on First Amendment rights.” This scenario begs the question: can New York City effectively ban catcalls?
It may be safe to say that the founding fathers did not have “catcalls” in mind when drafting the First Amendment. However, that’s not to say that catcalls don’t fall within the protections of the First Amendment. While restrictions on sexually suggestive or explicit speech are largely accepted in the workplace and in educational settings, such restrictions are typically “not considered viable for public spaces.” For example, in Saxe v. State College Area School District, the United States Court of Appeals, Third Circuit, held that there is “no categorical rule that divests ‘harassing’ speech . . . of First Amendment protection.” The Court in Saxe reasoned that “[t]here is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.”
When analyzing government restrictions on speech, one should begin with the question of whether the restriction is content-based or content-neutral. The Supreme Court has held that “[g]overnment regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech.’” Where a regulation is content neutral, the government may restrict “the time, place and manner of expression,” as long as “the means chosen are not substantially broader than necessary to achieve the government’s interest . . . .” Additionally, a 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.” On the other hand, if a restriction is content-based, the government must have a “compelling interest” which is “narrowly tailored.”  This means that “if available, the legislature must use a less restrictive alternative which would serve the Government’s purpose. It becomes apparent that the determination of a restriction as content-based or content-neutral is critical because “it is nearly impossible to justify a content-based speech restriction in public places.”
If the New York City Council is going to attempt to legislate a ban on catcalling, such a restriction would have to be content-neutral in order to be constitutional. This means that the restriction could not outright state that “catcalling” specifically, is illegal in New York City. Such an outright ban would violate the First Amendment because it would reference and prohibit specific content, such as catcalling, and would therefore be content-based. Unlike a “time, place and manner” restriction, a ban on catcalling generally goes to the heart of what is being said, and not “when, where, and how” said the statement is made. Notably, such a general ban on all “catcalling” would be too vague to be enforced.
On the other hand, the City Council could not pass legislation which simply listed all of the words that constituted catcalling and ban those words. As the Court ruled in R.A.V. v. City of St. Paul, a statute which specifies particular subsets of words, constitutes a content-based restriction. Not being able to include specific words that constitute “catcalls,” would make it difficult to legislate a restriction. Without being able to explicitly state what constitutes a “catcall,” it would create a situation where someone may believe what they are saying does not constitute a catcall, and it is difficult to say whether such speech is or isn’t a catcall.
A city does have a legitimate interest in promoting the safety and convenience of its citizens on public streets. Nevertheless, in order for speech to be criminalized, it must be more than mere abusive language, crude humor, or merely unpleasant communication. Speech that is unwanted, and “which threatens, alarms, harasses, or annoys an individual may be proscribed without violating the speaker’s right to free expression.” Additionally, “[a] speaker does not have unlimited rights to proclaim whatever speech he or she desires without regard to the impact on the recipient. Instead, the right to free speech is traditionally balanced with the recipient’s entitlement to live without harassment and alarm. Indeed, “[a]n individual’s right to communicate must be balanced against the recipient’s right ‘to be let alone’ in places which the latter possesses a right to privacy . . . .”
Taking this into consideration, the City Council is addressing a legitimate concern in regard to its attempt to restrict catcalls. While it would be difficult for the City Counsel to legislate an outright ban on catcalls, the Council could try to use other means to restrict catcalls within the New York City area. In fact, the Council might find it more effective to utilize current laws to help prevent women from being harassed by such comments. For instance, New York Penal Law § 240.26 defines the elements to determine when a person is guilty of harassment:
A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:
1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or
2. He or she follows a person in or about a public place or places; or
3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose . . . .
If properly enforced, the city could use the harassment law to prevent the more extreme cases of harassing catcalls. For example, if a male was “hollering” at a female passer-by and happened to make contact with such female, the City could treat such instance as a violation of the harassment law. Additionally, if a male were to follow a female or engage in any course of conduct or repeated catcalling which seriously alarmed a female, this would be justifiable grounds for a harassment charge. Furthermore, New York Penal Law § 240.20 makes it a violation to engage in disorderly conduct. Specifically, the City could use subsections 3 and 7, which set out in relevant part:
A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or . . .
7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose . . . .
The problem is that these laws aren’t typically enforced on mere “catcallers,” but are typically used for more serious or egregious offenders. This doesn’t mean that the City couldn’t have a public awareness campaign, informing New Yorkers of the alarming effects of catcalling and making it known that if you engage in such conduct, you submit yourself to violating the harassment and disorderly conduct laws.
A major problem occurs when many men don’t realize their behavior has a negative impact on the lives of many women. In this sense, public awareness could be a powerful tool to inform men of the harm they are inflicting. While many men might try to justify their behavior as “harmless,” the truth is women have to live in fear and annoyance everyday because of this behavior. Raising awareness and increasing enforcement of the harassment laws already in place, appears to be the most practical and immediate response to the threat of catcalling. While catcalling may be a long tradition not only in New York City, but embedded in our culture, it does not mean the City has to continue to allow this behavior to continue.
 Oxford Dictionary of English, available at http://dws-sketch.uk.oup.com/cgi-bin/onlineOde/print_entry.cgi?id=C001647794&match_point=4&lemma=&right_column_mode=synonyms&caption_style=long&search_type=simple.
 Sara Kugler Frazier, Lawmakers Probe Street Harassment of NYC Women: Women Say Whistles, Catcalls and Lewd Come-ons from Strangers are Unwelcome, Associated Press, Oct. 28, 2010, available at http://www.msnbc.msn.com/id/39896396/ns/us_news-life.
 Frazier, supra note 2.
 Laura Beth Nielsen, License to Harass: Law, Hierarchy, and Offensive Public Speech 19 (2004).
 Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 210 (3d Cir. 2001).
 Id. at 204.
 Consolidated Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 536 (1980).
 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
 Id. at 800.
 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 804 (2000).
 Nielsen, supra note 9, at 21.
 See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 388, 391 (1992) (finding the city’s ordinance prohibiting “fighting words” was content-based and unconstitutional because it specified particular subsets of “fighting words”).
 See Madsen v. Women’s Health Ctr. Inc., 512 U.S. 753, 768 (1994) (holding that the state “also has a strong interest in ensuring the public safety and order, [and] in promoting the free flow of traffic on public streets and sidewalks . . . .”); Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650 (1981) (recognizing state interest in safety and convenience of citizens using public fora); Cox v. New Hampshire, 312 U.S. 569, 574 (1941) (recognizing state interest in safety and convenience on public roads).
 See People v. Dietze, 75 N.Y.2d 47, 51 (1989)(holding “vulgar, derisive and provocative speech” may be protected, unless it presents a “clear and present danger of some serious substantive evil . . .”); see also People v. Shack, 86 N.Y.2d 529 (1995) (holding that Penal Law § 240.30(2) is a constitutionally permissible statute, which criminalizes speech that has no purpose of legitimate communication, in order to protect individual privacy rights).
 People v. Limage, 19 Misc.3d 395, 398 (Crim. Ct., Kings County 2008); see also Cohen v. California, 403 U.S. 15, 21 (1971).
 Limage, 19 Misc.3d at 398.
 Shack, 86 N.Y.2d at 536 (citing Rowan v. U.S. Post Office Dep’t, 397 U.S. 728, 736 (1970)).
 Frazier, supra note 2.
 N.Y. Penal Law § 240.26 (McKinney 2010).
 N.Y. Penal Law § 240.26.
 N.Y. Penal Law § 240.26.
 N.Y. Penal Law § 240.20 (McKinney 2010).
 N.Y. Penal Law § 240.20(3), (7).
 N.Y. Penal Law §§ 240.20, 240.26.