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Media Alerts - Planet Aid v. City of St. Johns - Sixth Circuit
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May 27, 2015
  Planet Aid v. City of St. Johns - Sixth Circuit
Headline: Ordinance banning outdoor charitable-donation bins struck down as an unconstitutional content-based regulation of protected speech

Area of Law: First Amendment

Issue Presented: Can a city ban outdoor, unattended charitable-donation bins as a public nuisance without running afoul of the First Amendment's protection of speech related to charitable solicitation?

Brief Summary: A nonprofit charitable organization challenged a city ordinance that banned outdoor, unattended charitable donation bins. The district court issued a preliminary injunction against enforcement of the ordinance, and the city appealed. The Sixth Circuit affirmed, finding that the charitable organization had demonstrated a strong likelihood of success on the merits of its claim because the ordinance was an improper content-based regulation of protected speech that failed the strict-scrutiny test. Even though the ordinance was viewpoint neutral - it applied to all charitable organizations - it was still content-based because it applied only to bins with an expressive message soliciting donations to charity. Applying strict scrutiny, the court found that even if the city had a compelling interest in preventing blight and promoting aesthetics, the ban on charitable-donation bins was not the least restrictive method available to promote those interests.

Extended Summary: A charitable organization placed unattended donation bins on private property with the consent of the property owners. The city sent the charity a letter directing it to remove the bins, stating that the bins were creating a nuisance because people were leaving boxes and refuse around the containers. When the charity refused to remove the bins, the city removed them. Later, the city passed an ordinance banning all unattended charitable-donation bins.

The city identified the purpose of the ordinance as protecting the health, safety, and welfare of the public by "preventing blight, protecting property values and neighborhood integrity, avoiding the creation and maintenance of nuisances and ensuring the safe and sanitary maintenance of properties." The city also noted that "unattended donation boxes . . . may become an attractive nuisance for minors and/or criminal activity." Arguing against the injunction, the city analogized the bins to outdoor advertising signs, which could be regulated by content-neutral time, place, and manner restrictions.

The Sixth Circuit fist examined Supreme Court precedent establishing that charitable solicitation is a form of speech entitled to strong constitutional protection. Protected speech occurs when members of the public view the bins and perceive their message of charitable giving, regardless of the fact that the bins are not attended. But the court noted that this finding is the beginning, rather than the end, of the inquiry. "Government regulations of protected speech are subject to strict scrutiny only if they target the protected speech, that is, if they are content-based." On the other hand, content-neutral regulations of the time, place, and manner of protected speech are subject to only intermediate scrutiny.

Here, the court found that the city ordinance was content-based and subject to strict scrutiny because the ordinance did not ban all types of outdoor bins; it only regulated donation bins with an expressive message on the topic of charitable giving. Specifically, the ordinance applied only to bins "intended to accept donated goods or items." While the city identified various nuisances associated with the bins, these nuisances could also be associated with non-expressive containers such as dumpsters and trash cans, which were not banned. The city had argued that the ordinance was content-neutral because it applied to all charitable-donation bins, regardless of the nature of the organization that owned the bins. But the court recognized that even a viewpoint-neutral governmental regulation can be content-based.

The city also argued that Sixth Circuit precedent on the regulation of billboards should control. Regulations of billboards were previously upheld because they specified only the size and height of the billboards without any reference to the content of the speech that appeared on them. The city argued that the charitable-donation-bin regulation was similar. The court disagreed, again concentrating on the fact that only bins with a charitable message were banned.

Applying strict scrutiny, the court examined whether the ordinance was both narrowly tailored to promote a compelling government interest and whether the ordinance was the least-restrictive means available to accomplish that interest. Even assuming that the city had a compelling interest in preventing blight and promoting aesthetics, the ordinance failed the strict-scrutiny test because it assumed that charities would be negligent in maintaining the areas around their bins or in picking up donated items in a timely manner. By banning the bins, the ordinance also assumed without evidence that less-restrictive regulations, such as requiring bi-weekly pickups or inspections, would not be effective. Because the ordinance failed the strict-scrutiny test, the charity established that it was likely to prevail on the merits, and the district court's injunction was upheld.

Panel: Circuit Judges Richard Allen Griffin and Jane Branstetter Stranch; District Judge George Caram Steeh (sitting by designation)

Argued: March 5, 2015

Date of Issued Opinion: April 6, 2015

Docket Number: No. 14-1680

Decided: Affirmed

Counsel (argued and on brief): Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellant. Daniel P. Dalton, DALTON & TOMICH, PLC, Detroit, Michigan, for Appellee.

Author of Opinion: Circuit Judge Richard Allen Griffin

Case Alert Author: Greg Masters

Case Alert Circuit Supervisor: Professor Mark Cooney

Link to Full Opinion:

    Posted By: Mark Cooney @ 05/27/2015 03:25 PM     6th Circuit  

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