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A Free Speech Win for Donation Bin Operators: U’SAgain v. Crest Hills, Illinois

Written by Daniel P. Dalton on January 24, 2017 Category: Donation Bins, Firm News, Free Speech

Dalton & Tomich PLC is pleased to announce a recent victory protecting the rights of donation bin operators in a federal lawsuit wherein it represented U’SAgain against the City of Crest Hills, Illinois.

The City of Crest Hills recently adopted a zoning ordinance which completely banned “donation boxes” within City limits. Through this action, the City has completely excluded and silenced USAgain and other organizations that collect donations via collection bins. In contrast, the Ordinance does not ban unattended containers used for trash or recyclables.

U’SAgain sought to work with the City to amend its ordinance so that donation bins could be regulated by the City but not banned.  The City refused to amend its ordinance. With no other choice, U’SAgain filed suit in the Northern District of the United States District Court of Illinois in Chicago alleging that the ban violates the guarantee of free speech under the First Amendment to the United States Constitution as well as the Equal Protection clause and the Illinois Constitution. In addition to filing suit, U’SAgain filed a Motion for Preliminary Injunction pursuant to Federal Rule of Civil Procedure 65(a) preserving its constitutional rights and allowing it to place donation bins in Crest Hill without interference from City officials.

The legal basis for concluding that the ordinance violates USAgain’s right to Free Speech guaranteed by the First Amendment to the United States Constitution arises out of a long line of Supreme Court cases has repeatedly held that solicitation of donations qualifies as a form of constitutionally protected speech. In Schaumburg v. Citizens for a Better Environment, the Supreme Court explained that “[c]haritable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes — that are within the protection of the First Amendment.” 444 U.S. 620, 633 (1980). These solicitations are more than simply commercial transactions. Instead, they are “characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and . . . without solicitation the flow of such information and advocacy would likely cease.” Id. at 632 (1980).

Federal courts around the country have confirmed that collecting charitable donations via collection bins is without doubt a form of charitable solicitation. In Planet Aid v. City of St. Johns, the City passed an ordinance banning clothing donation bins. 782 F.3d 318, 321-22 (6th Cir. 2015). Planet Aid brought suit claiming, among other things, that the Ordinance violated its First Amendment Free Speech rights. Id. at 322-23. The district court found that Planet Aid was likely to succeed on its First Amendment claim and entered a preliminary injunction against the City preventing it from enforcing its ban on donation bins. Id. The City appealed the district court’s order to the Sixth Circuit. Id.

Simply put, the Ordinance is content-based because it facially treats collection bins differently than other unattended outdoor receptacles such as dumpsters or recycling bins based on content. The Supreme Court recently laid down the definitive guide to determining whether or not an ordinance is content-based in Reed v. Town of Gilbert. In that case, the Court stated: “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.” 135 S. Ct. 2218, 2227 (2015) (emphasis added). This requires a court to “consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” Id. In Reed, the Court found that the Town’s Sign Code was content-based on its face because it treated signs differently based on the content of those signs. Id.

In City of St. Johns, the Sixth Circuit reasoned:

Under these standards, [the Ordinance] clearly regulates protected speech on the basis of its content. The ordinance does not ban or regulate all unattended, outdoor receptacles. It bans only those unattended, outdoor receptacles with an expressive message on a particular topic—charitable solicitation and giving. Thus, the ordinance is not “unrelated to expression.”782 F.3d at 328 (internal citations omitted).

In other words, an ordinance that bans collection bins while allowing other containers to remain, is content-based.

The Ordinance in Crest Hills was remarkably similar to the ordinance in City of St. Johns in that it bans charitable donation containers.  If there were two identical unattended receptacles, one labeled “donate clothes and shoes” and the other labeled “waste disposal,” the collection bins would be banned by the Ordinance while the trash container would not. The only difference is the plea for donations on the collection bin. In other words, the only difference is the content on the collection bins.

Content-based restrictions on speech face strict scrutiny. See, United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000). As a result, such restrictions are “presumptively invalid” unless they discriminate on the basis of categorically “proscribable” speech. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992). The Ordinance at issue does not implicate any area of “proscribable” speech. In contrast, the Ordinance implicates a core area of free speech protection: solicitation of charitable donations. Schaumburg, 444 U.S. at 633. Since the Ordinance is content-based and does not address any proscribable categories of speech, the Ordinance should be subject to strict scrutiny.

Since the Ordinance is content-based, ‘it can stand only if it satisfies strict scrutiny.’” Playboy, 529 U.S. at 813. Thus, in order for the ordinance to pass constitutional muster, the City bears the burden to establish that it is narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government’s purpose, the [City] must use that alternative. Id.  The Crest Hills Ordinance is not the least restrictive means of furthering a compelling government interest.

A compelling government interest is an interest “of the highest order.” Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993). Examples of compelling government interests accepted by courts include: preventing vote-buying, see Buckley v. Valeo, 424 U.S. 1, 27 (1976), maintaining a stable political system, Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 226 (1989), and procuring the manpower necessary for military purposes, Gillette v. United States, 401 U.S. 437, 462 (1971). Here, the City could not establish that it is furthering an interest “of the highest order.”

Second, the Ordinance is not narrowly tailored. Even if the Ordinance were supported by a compelling government interest, it would still fail strict scrutiny because it is not the least restrictive means of accomplishing such an interest. “If a less restrictive alternative would serve the Government’s purpose, the [City] must use that alternative.” Playboy, 529 U.S. at 813 (employing strict scrutiny). The burden is on the City to make this showing. Id. “When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government’s obligation to prove that the alternative will be ineffective to achieve its goals.” Id. at 816. (emphasis added). The City cannot prove that it employed the least restrictive means to further its goals.

As is nearly always the case, the City’s interests “can be better served by measures less intrusive than a direct prohibition.” Schaumburg 444 U.S. at 637. In this case, the City clearly had less restrictive options available to it other than a complete ban of collection bins. As in City of St. Johns, the City could simply have instituted weekly or bi-weekly pickups for collection bins. 782 F.3d at 331. Alternatively, the City could have imposed fines for unkempt or blighted collection bins. Simply put, the City cannot prove that it used the least restrictive means of furthering its government interest.

Therefore, shortly after the case was filed, the City of Crest Hills then entered into negotiations resulting in a the City enacting a constitutionally sufficient ordinance that allows the City to reasonably regulate donation bins, allowing U’SAgain to place its bins back in the City and paying thousands of dollars in attorney fees.

The professionals at Dalton & Tomich PLC work extensively with the donation bin industry in similar cases throughout the United States.  Please contact Dan Dalton should you have questions concerning this issue.

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