concurring in part and dissenting in part:
I concur with the majority opinion insofar as it vacates the district court’s invalidation of N.Y. Penal L. § 240.35(1) (McKinney 1989). With respect to the First Amendment issues, however, the difficult question for me is whether any legally justifiable distinction can be drawn between begging for one’s self and solicitation by organized charities. I am unable to do so, and therefore I respectfully dissent from the Court’s disposition of these claims.
According to the majority, common sense tells us that begging enjoys no First Amendment protection because it is conduct unassociated with any particularized message and because begging, unlike “charitable solicitation,” is mere solicitation for money with a diminished communicative content. I agree that common sense and everyday experience should inform our decision. Their true teaching, however, is that both beggars and organized charities who send representatives into the subway have one primary goal: in the words of the majority, “the transfer of money.” Nevertheless, in Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. *165620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), the Supreme Court saw fit to extend First Amendment protection to the fundraising efforts of organized charities. In my opinion, beggars deserve that same protection.
In Schaumburg, the Court held that charitable solicitation is protected because it “is characteristically intertwined with ... speech seeking support for particular causes or for particular views on economic, political, or social issues.” 444 U.S. at 632, 100 S.Ct. at 834. Notably, the Court did not suggest that charitable solicitation is protected expression because it is always accompanied by speech on social issues. If that were the test, then it is doubtful that any organized charity soliciting contributions in the New York subway would be engaged in protected expression. Those charities receive countless donations without engaging in any discussion whatsoever with the typical donor rushing to catch a train. Rather, the Schaumburg Court held that First Amendment protection attaches to all charitable solicitation, whether or not any speech incident to the solicitation actually takes place, because a sufficient nexus exists between a charity’s expression of ideas and its fundraising. That is, a charity’s representatives often explain the purpose of the charity’s work to potential donors and perhaps engage in a discussion regarding social issues. In addition, the receipt of donations is essential to the continued existence of a charity. The record in the present case, as well as the common experience of those who ride the New York subways, indicates that begging is protected expression for exactly the same reasons.
Plaintiffs Young, Walley and Gilmore all state in their affidavits that they often speak with potential donors about subjects such as the problems of the homeless and poor, the perceived inefficiency of the social service system in New York and the dangerous nature of the public shelters in which they sometimes sleep. The speech and association inherent in these encounters is without doubt protected by the First Amendment. See, e.g., Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). Similarly, a beggar who holds a sign saying “Help the Homeless” or “I am hungry” is engaged in First Amendment activity. See Cohen v. California, 403 U.S. 15, 18-19, 91 S.Ct. 1780, 1784-85, 29 L.Ed.2d 284 (1971) (person wearing jacket with anti-war slogan engaged in protected expression of views). Any attempt to distinguish between beggars who hold signs or engage in discussions and those who simply ask for money would be unrealistic. Accordingly, if First Amendment protection extends to charitable solicitation unaccompanied by speech, as it apparently does, it must extend to begging as well. See Riley v. National Federation of the Blind, Inc., 487 U.S. 781, 108 S.Ct. 2667, 2677, 101 L.Ed.2d 669 (1988) (Schaumburg “refused to separate the component parts of charitable solicitations from the fully protected whole”); see also Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 764-65, 96 S.Ct. 1817, 1827, 48 L.Ed.2d 346 (1976) (holding commercial speech to be protected although “not all commercial messages contain the same or even a very great public interest element”).
The majority suggests that plaintiffs are free to engage in First Amendment activity in the subway provided that they do not request donations. This is precisely the argument that was rejected in Schaum-burg as “representpng] a far too limited view of [the] ... cases relevant to canvassing and soliciting by religious and charitable organizations.” 444 U.S. at 628, 100 S.Ct. at 831. The rationale for the Supreme Court’s rejection of this argument was that charitable organizations would be unable to continue their advocacy and dissemination of ideas without the ability to solicit donations. 444 U.S. at 632,100 S.Ct. at 833. The majority acknowledges the importance of contributions to a charitable organization's work, but fails to recognize that a beggar’s First Amendment activity is no less dependent on his requests for money. In the seclusion of a judge’s chambers, it is tempting to assume that beggars could obtain jobs and spend their free time distributing leaflets or buttonholing passersby in the subway to further the cause of *166the homeless and poor. The record in this case, however, permits no such speculation. Plaintiff Young states in his affidavit, for example, that he solicits money in the subway so that he can buy food, medicine and other essentials, and take the subway to the Bronx, where he sometimes earns enough money unloading trucks to rent a room for the night. He receives no public assistance. Plaintiff Walley, who is fifty years old, states that he solicits donations because he is unable to find work. If he sleeps in a shelter, he receives reduced public assistance of $21.50 every two weeks. Plaintiff Gilmore’s solicitation also is the result of her need for food and medical treatment. To suggest that these individuals, who are obviously struggling to survive, are free to engage in First Amendment activity in their spare time ignores the harsh reality of the life of the urban poor.
Because begging is speech protected by the First Amendment, it is necessary to determine whether the TA regulations withstand the proper level of scrutiny. I agree with the majority that the TA’s regulation is content-neutral. Defendants have offered substantial evidence to support their claim that the regulations are aimed at the secondary effects of begging such as increased crime and traffic congestion, rather than at any message conveyed by the beggars. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986) (zoning restriction applicable to adult movie theaters content-neutral because aimed at secondary effects of such theaters); see also Boos v. Barry, 485 U.S. 312, 320-21, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988) (discussing Renton). I have serious doubts, however, that holding the regulation content-neutral automatically means that it must be analyzed under what the majority terms the “relaxed” standard of United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). I question the application of O’Brien for two reasons. First, begging, like charitable solicitation, is protected speech, and therefore a direct restriction on it must be “subjected ... to exacting First Amendment scrutiny.” Riley, 108 S.Ct. at 2673. Second, O’Brien has generally been applied to cases involving symbolic conduct rather than speech in the normal sense of the word. See Ward v. Rock Against Racism, — U.S.-, 109 S.Ct. 2746, 2757, 105 L.Ed.2d 661 (1989) (applying time, place or manner analysis to content-neutral regulation and referring to O’Brien as “the case in which we established the standard for judging the validity of restrictions on expressive conduct”). The protected expression in this case is the beggars’ speech incident to their solicitation of alms, not symbolic conduct.
As the majority apparently recognizes, however, it makes little difference whether the regulations in issue are judged under O’Brien or under the traditional time, place or manner standard because the two tests are essentially the same with respect to content-neutral regulations. See Rock Against Racism, 109 S.Ct. at 2757; Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298, 104 S.Ct. 3065, 3071, 82 L.Ed.2d 221 (1984); see also id. at 308 n. 6,104 S.Ct. at 3076 n. 6 (Marshall, J, dissenting). The only element of O’Brien on which I disagree with the majority is the fourth, namely, whether the regulation is no greater than is essential to the furtherance of the government’s interest. This element corresponds to the narrow tailoring requirement of the time, place or manner analysis. Because no symbolic speech is involved here, I will use the time, place or manner analysis that applies to speech in a public forum.
The TA clearly has created a limited public forum by designating certain areas of the subway system in which charitable solicitation may take place. The majority emphasizes that the TA never intended to open the subway to begging, and that the grant of selective access does not create a public forum for all purposes. While the government’s intent is “critical” to the determination that a limited public forum was created, see Deeper Life Christian Fellowship, Inc. v. Board of Educ., 852 F.2d 676, 680 (2d Cir.1988), the fact is defendants intended to open, and did open, certain areas to solicitation by organized charities. *167Simply put, the TA designated certain areas in which charitable groups could ask passersby for money. As discussed above, begging is indistinguishable from charitable solicitation for First Amendment purposes. To hold otherwise would mean that an individual’s plight is worthy of less protection in the eyes of the law than the interests addressed by an organized group. No court has ever so ruled. Defendants therefore may not open the door to the latter while slamming it in the face of the former. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 48, 103 S.Ct. 948, 956, 74 L.Ed.2d 794 (1983) (designated public forum open “to other entities of similar character”). This conclusion is further compelled by defendants’ failure to submit any evidence that charitable solicitation does not have the same adverse effects [e.g., impeding traffic, intimidating passengers) that begging is claimed to have.1 In the absence of such evidence, defendants’ contention that begging is not of the same general nature as solicitation by organized charities is nothing more than rank speculation.
I cannot agree that Gannett Satellite Information Network, Inc. v. Metropolitan Transportation Authority, 745 F.2d 767 (2d Cir.1984), is dispositive of the status of the subway as a public forum. Gan-nett involved a challenge to a licensing scheme for the placement of newspaper vending machines in commuter railroad stations, not the New York City subway. Id. at 770-71. Even if Gannett’s holding that those commuter stations are neither traditional nor designated public forums could be extended to the subway, the district court was correct in holding that Gannett has little precedential value in the present ease because it was decided prior to the TA’s creation of a designated forum for charitable solicitation.
The status of the Port Authority Bus Terminal as a public forum was established in Wolin v. Port of New York Authority, 392 F.2d 83, 88-91 (2d Cir.) (suggesting that Port Authority is a traditional public forum), cert, denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1968), and defendants present no persuasive argument that Wo-lin is no longer good law. Furthermore, no re-examination of Wolin is necessary in this case because it is clear that those areas in which the Port Authority allows expressive activities to take place constitute a designated public forum for the same reasons set forth above with respect to the subway system.
Because I believe that, in light of Supreme Court precedent, begging is protected expression and that the areas in which it is currently banned are public forums, I next turn to the question whether the regulations in issue can survive the appropriate level of scrutiny. Content-neutral regulations like the ones in question will be upheld as reasonable time, place or manner restrictions if they are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Perry, 460 U.S. at 45, 103 S.Ct. at 955; see also Frisby v. Schultz, 487 U.S. 474, 479-80, 108 S.Ct. 2495, 2499, 101 L.Ed.2d 420 (1988).
While the interests that defendants advance are certainly significant, e.g., protection of the public from harassment, preservation of the quality of life, and maintenance of a safe transit system, the regulations are not narrowly tailored to achieve these interests because they burden a substantial amount of speech that does not implicate the TA’s interests. The majority is correct that even a complete ban may in some instances constitute a reasonable time, place or manner restriction, see, e.g., Community for Creative Non-Violence, 468 U.S. at 296, 104 S.Ct. at 3070, and that a regulation need not be the least restrictive means of achieving the government’s objective in order to be narrowly tailored. *168See Rock Against Racism, 109 S.Ct. at 2757-58 (narrow tailoring requirement met as long as government interest would be achieved less effectively absent the regulation and it does not burden substantially more speech than necessary). As the district court noted, however, the regulations in this case do not distinguish between passive begging such as a blind man rattling a cup full of change or a homeless person politely requesting money, which would hardly daunt the average New Yorker, and aggressive behavior such as the panhandler who accosts and intimidates subway riders. The evidence submitted by the TA indicates that this aggressive, intimidating behavior is the primary evil that prompted the TA’s ban on begging. For example, Bernard Jacobs, a Detective of the New York City Transit Police Department, supports the ban on begging by stating in his affidavit that “passengers feel harassed and intimidated by panhandlers.” Similarly, Carl Green, Assistant Vice President for Government Relations of the TA, states that “[t]he policy dictating enforcement of the [ban on begging] is directed against behavior which [our] passengers believe to be intimidating.” The TA certainly is free to prevent harassing, intimidating behavior, which existing regulations allow it to do. See Texas v. Johnson, 109 S.Ct. 2533, 2542 (1989) (existence of a statute specifically prohibiting breaches of the peace “tends to confirm that Texas need not punish ... flag desecration in order to keep the peace”). The TA has made no showing, however, that passengers perceive all, or even a large percentage, of people who solicit alms in the subway as belligerent or frightening. In addition, there has been no showing that subway riders do not feel harassed when approached by representatives of an organized charity. Thus, the TA may protect its passengers by prohibiting the specific conduct that adversely affects the subway environment, and may address safety concerns such as traffic flow by restricting peaceful begging to areas in which charitable solicitation is allowed. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 966-67, 104 S.Ct. 2839, 2852, 81 L.Ed.2d 786 (1984) (restriction on fundraising not sufficiently narrowly tailored to achieve state’s interest of preventing fraud). The complete ban on begging, however, burdens substantially more speech than necessary, and therefore is not narrowly tailored to achieve the government’s interests. See Rock Against Racism, 109 S.Ct. at 2758; Frisby, 487 U.S. at 485, 108 S.Ct. at 2502 (complete ban is narrowly tailored “only if each activity within the proscription’s scope is an appropriately targeted evil”).
In sum, begging is speech protected by the First Amendment that may be regulated, but not entirely prohibited, to achieve the government interests advanced in this case. I recognize that the presence of large numbers of beggars in the subway presents a serious problem for the TA and contributes to the sense of chaos and frustration experienced by the many hardworking New Yorkers who rely on the subway system. Had the TA’s regulations continued to bar all charitable solicitation in the subways, I would uphold them because no public forum would have been created. I simply fail to see why the TA should be able to permit organized charities, but not beggars, to rattle a cup full of change as one passes by.
For the foregoing reasons, I respectfully dissent.
. The majority notes that the record contains no indication that passengers feel intimidated by organized charities, and concludes that this absence of evidence supports the TA’s distinction between begging and charitable solicitation. The reason for this lack of evidence is that, while the TA engaged in an enormous effort to gauge passenger reaction to begging, it never inquired how subway riders felt about being accosted by representatives of organized charities.