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Clothing and Shoe Donation Bins: Commercial Free Speech prevails in the Sixth Circuit

Written by Daniel P. Dalton on September 14, 2016 Category: Free Speech, Land Use and Zoning, Nonprofits Tags:

In January 2014, the City of St. Johns, Michigan adopted an ordinance that banned clothing donation bins from the city. While donation bins were banned, other unattended containers such as dumpsters and recycling bins were not banned. Dalton & Tomich brought suit challenging the ordinance on behalf of Planet Aid, a nonprofit corporation that maintains clothing donation bins around the country.

The suit brought against St. Johns was based primarily on the First Amendment’s guarantee of free speech. Specifically, Dalton & Tomich argued that a complete ban of donation bins was a content-based restriction of speech. The speech at issue was the donation bins themselves. The Supreme Court has ruled that solicitations for charitable donations are protected speech. And the Fifth Circuit had found that an appeal for charitable donations made by an unattended receptacle is also free speech.

Dalton & Tomich argued that the ordinance was content-based since the ordinance required an enforcement officer to evaluate the content on an unattended receptacle to determine whether or not the receptacle was banned by the ordinance. Content-based ordinances are subject to strict scrutiny. Under strict scrutiny, an ordinance must be the least restrictive means of furthering a compelling government interest. Dalton & Tomich argued that there were certainly less restrictive means available to the city to address its concerns than a total ban of donation bins.

After suit was filed in the US District Court for the Western District of Michigan, Dalton & Tomich successfully obtained a preliminary injunction against the City. This order prohibited the City from enforcing its ordinance until the case concluded. The City appealed the preliminary injunction to the Sixth Circuit Court of Appeals. On appeal the Sixth Circuit unanimously affirmed the preliminary injunction. The Sixth Circuit found that donation bins are protected speech, and an ordinance targeting donation bins is content-based and presumptively invalid.

As reported in the Lansing Journal, after Planet Aid’s victory on appeal, the parties were able to negotiate a settlement favorable to Planet Aid and fair to the city. St. Johns approved a constitutionally acceptable ordinance regulating instead of banning clothing donation bins, and reimbursed Planet Aid for a portion of its attorney fees. This case has been vital to protecting the First Amendment rights of donation bin operators across the country.

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