Recent Developments in First Amendment Law: Panhandling and Solicitation Regulations Deborah Fox, Principal Margaret Rosequist, Of Counsel September 28, 20 September 30, 2016
First Amendment Protected Activity Historically, states and municipalities addressed problems associated with panhandling and solicitation by simply prohibiting the activity. Modern cases, however, make clear that both panhandling and solicitation are activities that fall within the protections of the First Amendment. 2
Foundation of Modern Jurisprudence Village of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620 (1980) Village of Schaumberg lays the foundation for the Supreme Court s modern solicitation jurisprudence. The Court found a ban on seeking door-to-door charitable contributions to be unconstitutional and set forth the standard for evaluating restrictions on charitable solicitation. 3
Foundation of Modern Jurisprudence At issue in Village of Schaumberg was an ordinance prohibiting door-to-door or on-street solicitation of contributions by charitable organizations that did not use at least 75% of receipts for charitable purposes. 4
Foundation of Modern Jurisprudence The standard set forth by the Court in Village of Schaumberg establishes that charitable solicitation regulations are constitutional only if: The regulation serves a sufficiently strong, subordinating interest that the government is entitled to protect (such as prevention of fraud); and The regulation is narrowly drawn to serve the interest without unnecessarily interfering with First Amendment freedoms. 5
Donation Bins The courts that have considered the relatively new issue of charitable donation bins have found that these bins are a form of charitable solicitation subject to the standard set forth in Village of Schaumberg. 6
Donation Bins National Federation of the Blind of Texas v. Abbott, 647 F.3d 202 (5th Cir. 2011) The Fifth Circuit explained that inclusion of a charity s name on a donation bin communicated information about the beneficiaries and implicitly advocated for the charity s views, ideas and goals. 7
Donation Bins Planet Aid v. City of St. Johns, MI, 782 F.3d 318 (6th Cir. 2015) Recently the Sixth Circuit rejected a total ban on donation bins using the time, place and manner test for a public forum, explaining that it was a content-based restriction that prohibited bins with expressive messages but allowed bins with no messages. Also, on appeal in Ninth Circuit is the district court s decision in Recycle for Change v. City of Oakland which upheld a regulation restricting placement of donations bins. 8
Donation Bins While district courts have rejected: Regulations restricting donation bins to those where 80% of the proceeds from the bins are used for charitable purposes. See Linc-Drop v. City of Lincoln, 996 F.Supp. 845 (D. Neb. 2014) Regulations imposing a total ban on donation bins. See Planet Aid v. Ypsilanti Township, 2014 WL 1929201 (E.D. Mich. 2014) 9
Forum Classification Traditional public forum is where people have traditionally been able to express their ideas Park, public street, sidewalk Nonpublic forum is government property traditionally not open to the free exchange of ideas Courthouse lobby, prison, military base v. 10
The Tests for a Public Forum Time, place and manner test for public forum. 1. Content-neutral; 2. Narrowly-tailored to serve a significant government interest; and 3. Leaves open ample alternative channels of communication. Content-based distinctions presumptively invalid. Complete bans are generally only allowed when the exclusion is necessary to serve a compelling interest. 11
Strict scrutiny for content-based restrictions of a public forum The Tests for a Public Forum Content-based regulations only pass muster if Least restrictive means To further a compelling government interest 12
The Test for a Nonpublic Forum Most lenient test for nonpublic/limited public forum: Restrictions need only be: Reasonable and Viewpoint neutral 13
Airports International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) Plaintiffs challenged regulations prohibiting the solicitation and receipt of funds or distribution of literature within New York airport terminal buildings. The regulations did not prohibit solicitation or leafleting on the sidewalks outside the airport. 14
Airports International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) Majority opinion found that the terminal buildings were a nonpublic forum. Court held that regulations regarding a ban on the solicitation and receipt of funds satisfied the reasonableness test. 15
International Society for Krishna v. City of Los Angeles, 764 F.3d 1044 (9th Cir. 2014) The parties agreed the airport forum at issue was a nonpublic one. Airports The Court found that the regulation banning the continuous or repetitive solicitation for the immediate receipt of funds passed the reasonableness test. 16
Roadways Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) Plaintiffs challenged regulations prohibiting any person from standing on streets or highways and soliciting employment, business or contributions from an occupant of any motor vehicle. 17
Roadways Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) On en banc review, the Ninth Circuit found the regulations failed the narrow tailoring requirement. They were geographically over-inclusive and swept within their coverage more speech than necessary. 18
Cutting v. City of Portland, 802 F.3d 79 (1st Cir. Sept. 2015) Roadways Plaintiff challenged ordinance prohibiting persons from standing, sitting, staying, driving or parking on median traffic strips. 19
Cutting v. City of Portland, 802 F.3d 79 (1st Cir. Sept. 2015) Roadways The First Circuit found the ordinance was content neutral because, as worded, it only restricted speech on the basis of where the speech took place. The ordinance, however, did not meet with the narrowly tailored prong of the time, place and manner test. 20
Roadways Houston Chronicle v. City of League City, 488 F.3d 613 (5th Cir. 2007) The Fifth Circuit considered and upheld a prohibition on soliciting, selling or distributing material to the occupant of cars stopped in obedience to a traffic control signal light. 21
Content Based v. Content Neutral Regulations Can solicitation and panhandling regulations be defined in a content-neutral manner? 22
Definition of Content-Based Pre-Reed Ward v. Rock Against Racism, 491 U.S. 781 (1989) In the past, many courts looked to the Ward ruling for guidance in making a content-neutrality determination. Ward stated that [t]he principle inquiry in determining content neutrality... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. 23
Definition of Content-Based Post-Reed Justice Thomas opinion in Reed replaces Ward and applies an exacting standard for evaluating content neutrality: Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. 24
Content Based v. Content Neutral Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) Magic Mike challenged park regulations that: Allowed performers to passively solicit funds (e.g. setting out signs asking for donations) But prohibited performers from actively soliciting donations 25
Content Based v. Content Neutral Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) In an en banc decision, the Ninth Circuit found the passive solicitation regulations an unconstitutional contentbased restriction. The regulations allowed the conduct (exchange of money) and regulated only the speech by specifying the manner of requesting money (only in writing and only passively). 26
Content Based v. Content Neutral Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015) In contrast to Berger, the Seventh Circuit initially found that regulations restricting the request for an immediate exchange of funds was content neutral. 27
Content Based v. Content Neutral In Norton v. City of Springfield: The regulations at issue defined panhandling as an oral request for an immediate donation of money. Signs requesting money were allowed, as were oral pleas to send money later. 28
Content Based v. Content Neutral Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015) The Seventh Circuit s initial finding of content-neutrality was based on its findings that the regulation did not interfere with the marketplace of ideas, was not viewpoint based and was not an effort to suppress speech because of a disagreement with the message. In the wake of Reed, the Seventh Circuit reconsidered and found the restriction to be content based. 29
Content Based v. Content Neutral Thayer v. City of Worcester, 755 F.ed 60 (1st Cir. 2014) (vacated and remanded); Thayer v. City of Worcester, 144 F.Supp.3d 218 (D.Mass. 2015) In Thayer, the First Circuit also initially upheld a panhandling regulation as content-neutral. The City s ordinance made it unlawful to beg, panhandle or solicit any person in an aggressive manner. It applied to speech attempting to obtain an immediate donation of money or other thing of value. 30
Content Based v. Content Neutral Retired Supreme Court Justice Souter, sitting by designation, explained that while panhandling and solicitation of immediate donations may convey a message of need the regulation was not directed at suppressing speech because the government disapproved of the message and therefore did not run afoul of the contentneutrality requirement. In the wake of Reed, the City s ordinance has now been found to be content-based. 31
Solicitation and Panhandling Regulations This presentation is intended for teaching purposes and does not constitute legal advice. Deborah J. Fox, Esq. Margaret W. Rosequist, Esq. Meyers, Nave, Riback, Silver & Wilson 707 Wilshire Boulevard, 24 th Floor Los Angeles, California 90017 Telephone: (213) 626-2906 Facsimile: (213) 626-0215 32