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Donation Bins: Addressing a clothing and shoe donation bin ban in Ashland, Massachusetts

Written by Daniel P. Dalton on August 8, 2016 Category: Free Speech, Land Use and Zoning

In June 2016, the Town of Ashland, Massachusetts created and enforced a policy that banned clothing donation bins from the town. While donation bins were banned, other unattended containers such as dumpsters and recycling bins were not banned. Dalton & Tomich brought suit challenging the policy on behalf of Planet Aid, a nonprofit corporation that maintains clothing donation bins around the country and had been operating in Ashland for years without incident.

The suit brought against Ashland 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 and Sixth Circuits have both found that an appeal for charitable donations made by an unattended receptacle is also free speech.

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

After Dalton and Tomich filed suit in the federal district court in the District of Massachusetts, the parties were able to negotiate a settlement favorable to Planet Aid and fair to the town. The town agreed to rescind its policy and notify all parties involved that donation bins were no longer banned in the town. While this case went briefly into litigation, it was resolved swiftly and at little cost to the client and the town. We are pleased when disputes can be resolved efficiently and amicably.

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