Don Norton v. City of Springfield , 768 F.3d 713 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3581
DON NORTON and KAREN OTTERSON,
Plaintiffs-Appellants,
v.
CITY OF SPRINGFIELD, ILLINOIS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 13-3316 — Richard Mills, Judge.
____________________
ARGUED APRIL 2, 2014 — DECIDED SEPTEMBER 25, 2014
____________________
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. The City of Springfield has
an ordinance (§131.06 of the Municipal Code) that prohibits
panhandling in its “downtown historic district”—less than
2% of the City’s area but containing its principal shopping,
entertainment, and governmental areas, including the
Statehouse and many state-government buildings. The ordi-
nance defines panhandling as an oral request for an imme-
2 No. 13-3581
diate donation of money. Signs requesting money are al-
lowed; so are oral pleas to send money later. Springfield evi-
dently views signs and requests for deferred donations as
less impositional than oral requests for money immediately,
which some persons (especially at night or when no one else
is nearby) may find threatening. Plaintiffs have received cita-
tions for violating this ordinance and allege that they will
continue panhandling but fear liability; this gives them
standing to contest the ordinance’s constitutional validity.
See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014).
Plaintiffs asked the district court to issue a preliminary
injunction, contending that the ordinance violates the Con-
stitution’s First Amendment, applied to the states by the
Fourteenth. The parties simplified the judicial task by agree-
ing that panhandling is a form of speech, to which the First
Amendment applies, and that if it draws lines on the basis of
speech’s content then it is unconstitutional. Defendants fur-
ther simplified the litigation by not relying on the principle
of Younger v. Harris, 401 U.S. 37 (1971), and not contending
that the outcome of the citation proceedings blocks this suit
through issue preclusion (collateral estoppel) or claim pre-
clusion (res judicata).
We need not decide whether the parties are right about
these matters, for none of them affects subject-matter juris-
diction—though some aspects of the parties’ agreement re-
flect the holdings, or assumptions, of Gresham v. Peterson, 225
F.3d 899 (7th Cir. 2000), which held that an anti-panhandling
ordinance in Indianapolis, Indiana, is constitutional but did
not reach (because the parties did not present) the question
whether that ordinance is content-based. The district court
denied plaintiffs’ motion for a preliminary injunction, ruling
No. 13-3581 3
that the ordinance as written and enforced generally (that is,
“on its face” rather than “as applied” to these plaintiffs) is
content-neutral. 2013 U.S. Dist. LEXIS 153330 (C.D. Ill. Oct.
25, 2013).
Other courts of appeals have divided on the question
whether rules similar to Springfield’s are content-based.
Three circuits have answered “yes” and held them invalid.
ACLU v. Las Vegas, 466 F.3d 784 (9th Cir. 2006); Clatterbuck v.
Charlottesville, 708 F.3d 549 (4th Cir. 2013); Speet v. Schuette,
726 F.3d 867 (6th Cir. 2013). But two circuits have concluded
that anti-panhandling laws are content-neutral and valid.
ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 954–55 (D.C.
Cir. 1995); Thayer v. Worcester, 755 F.3d 60 (1st Cir. 2014)
(Souter, J.).
Each of these ordinances or regulations is a little different
from the others, and from Springfield’s—the ordinance in
Worcester, for example, addresses “aggressive” panhan-
dling, * and Michigan’s statute (the subject of Speet) forbids all
“begging”—but they all prohibit a request for money or val-
uables to be handed over immediately. And the distinctions
between “money now” and “money later,” and between
* The ordinance covers “a range of potentially coercive though not
conventionally aggressive behaviors, including soliciting from someone
waiting in line to buy tickets or enter a building; soliciting after dark,
calculated as ‘the time from one-half hour before sunset to one-half hour
after sunrise’; continuing to solicit from a person after the receipt of a
negative response; and soliciting anyone within 20 feet of an entrance or
parking area of a bank, automated teller machine, public transportation
stop, pay phone, theater, or any outdoor commercial seating area like a
sidewalk café.” 755 F.3d at 64. A second request for money is thus only
one definition of “aggressive” panhandling; in all other situations cov-
ered by Worcester’s ordinance, even one request for money is forbidden.
4 No. 13-3581
“money paid to me” and “money paid to someone else,” are
what plaintiffs say make the ordinances invalid; their lawyer
stated at oral argument that, if the ordinances barred all re-
quests for money, they would not have a good claim under
the First Amendment. In other words, plaintiffs contend that
the City’s effort to curtail the ordinance’s scope, by permit-
ting requests that do not seem threatening, is what makes it
unconstitutional. The rule that regulation of speech must be
narrowly tailored, see, e.g., McCullen v. Coakley, 134 S. Ct.
2518 (2014), thus becomes an engine of destruction, because
every effort to narrow a rule will distinguish some speech
from other speech and so, in plaintiffs’ view, doom it.
The Supreme Court has dealt with three anti-
panhandling laws or regulations. Heffron v. International Soci-
ety for Krishna Consciousness, Inc., 452 U.S. 640 (1981), holds
that a state fair may prohibit panhandling and other fund-
raising by anyone walking its grounds, limiting solicitation
to rented booths. United States v. Kokinda, 497 U.S. 720 (1990),
holds that the Postal Service may forbid all fundraising on a
sidewalk leading to a post office. International Society for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), holds
that an airport authority may prohibit all solicitation and re-
ceipt of funds within the terminal. Plaintiffs maintain that
these decisions are irrelevant, because each rests in part on a
conclusion that the venue was not a traditional public forum.
True enough, in the Supreme Court’s three decisions the
government had the benefit of its proprietary interest in the
forum, while public streets traditionally are open to speech.
But in each case the Court observed that regulation still must
be reasonable. See also Cornelius v. NAACP Legal Defense and
Education Fund, Inc., 473 U.S. 788, 807–13 (1985). In each case,
No. 13-3581 5
the Court concluded that the regulation was reasonable. For
example, in Lee the Court observed: “face-to-face solicitation
presents risks of duress that are an appropriate target of
regulation. The skillful, and unprincipled, solicitor can target
the most vulnerable, including those accompanying children
or those suffering physical impairment and who cannot easi-
ly avoid the solicitation.” 505 U.S. at 684.
In both Kokinda and Lee, Justice Kennedy wrote separate-
ly to express the view that the regulation was an appropriate
time, place, and manner limitation, independent of the ven-
ue’s “forum” status. Kokinda, 497 U.S. at 737–39; Lee, 505 U.S.
at 703–09. Justice Kennedy supplied the fifth vote necessary
to the disposition in Kokinda. And although Justice Kenne-
dy’s vote was not essential to the disposition in Lee, Justice
Souter, writing for the First Circuit in Thayer, concluded that
Justice Kennedy’s analysis illustrates the Court’s likely dis-
position of a panhandling regulation in a traditional public
forum. Justice Souter dissented in Lee; he disagreed with Jus-
tice Kennedy on the merits (in Lee) but still concluded (in
Thayer) that Justice Kennedy’s view is likely to carry the day.
Justice Kennedy concluded in Lee that an airport should
be treated the same as a city street and that restricting pan-
handling is permissible in both settings. What made the reg-
ulation permissible, he concluded, was that it had been nar-
rowly tailored so that it dealt only with potentially threaten-
ing (or advantage-taking) confrontations. He explained (505
U.S. at 707, citation omitted): “we have held that to be nar-
rowly tailored a regulation need not be the least restrictive
or least intrusive means of achieving an end. The regulation
must be reasonable, and must not burden substantially more
speech than necessary. Under this standard the solicitation
6 No. 13-3581
ban survives with ease, because it prohibits only solicitation
of money for immediate receipt.” In other words, what saved
the regulation in Justice Kennedy’s eyes is exactly what con-
demns it in plaintiffs’: the limit to solicitation for immediate
receipt, which Justice Kennedy saw as the soul of reasona-
bleness and plaintiffs as pernicious content discrimination.
When the Supreme Court writes that rules regulating
speech by content require the same sort of powerful justifica-
tion as rules regulating speech by viewpoint, a standard met
in practice only by a need as serious as the battle against ter-
rorists, see Holder v. Humanitarian Law Project, 561 U.S. 1(2010), it does not mean that all classification of speech is (ef-
fectively) forbidden. Government regularly distinguishes
speech by subject-matter, and the Court does not express
special concern.
“[I]t has never been deemed an abridgment of freedom of speech
or press to make a course of conduct illegal merely because the
conduct was in part initiated, evidenced, or carried out by means
of language, either spoken, written, or printed.” Giboney v. Em-
pire Storage & Ice Co., 336 U.S. 490 (1949). Numerous examples
could be cited of communications that are regulated without of-
fending the First Amendment, such as the exchange of infor-
mation about securities, SEC v. Texas Gulf Sulphur Co., 401 F.2d
833 (2d Cir. 1968), corporate proxy statements, Mills v. Electric
Auto-Lite Co., 396 U.S. 375 (1970), the exchange of price and pro-
duction information among competitors, American Column &
Lumber Co. v. United States, 257 U.S. 377 (1921), and employers'
threats of retaliation for the labor activities of employees, NLRB
v. Gissel Packing Co., 395 U.S. 575, 618 (1969). … Each of these ex-
amples illustrates that the State does not lose its power to regu-
late commercial activity deemed harmful to the public whenever
speech is a component of that activity. Neither [Virginia Board of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748(1976)] nor [Bates v. State Bar of Arizona, 433 U.S. 350 (1977)] pur-
No. 13-3581 7
ported to cast doubt on the permissibility of these kinds of com-
mercial regulation.
Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456 (1978).
This means that the “content-based” restrictions that require
special justification are a subset of those that depend on the
subject-matter of the speech.
The Court has classified two kinds of regulations as con-
tent-based. One is regulation that restricts speech because of
the ideas it conveys. See, e.g., Turner Broadcasting System, Inc.
v. FCC, 512 U.S. 622, 643 (1994). The other is regulation that
restricts speech because the government disapproves of its
message. See, e.g., Brown v. Entertainment Merchants Associa-
tion, 131 S. Ct. 2729 (2011); United States v. Stevens, 559 U.S.
460 (2010); Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989); Humanitarian Law Project, 561 U.S. at 27–28. See also
Elena Kagan, Private Speech, Public Purpose: The Role of Gov-
ernmental Motive in First Amendment Doctrine, 63 U. Chi. L.
Rev. 413, 443–56 (1996); Geoffrey R. Stone, Content-Neutral
Restrictions, 54 U. Chi. L. Rev. 46, 54–57 (1987); Geoffrey R.
Stone, Content Regulation and the First Amendment, 25 Wm. &
Mary L. Rev. 189, 233–51 (1983). It is hard to see an anti-
panhandling ordinance as entailing either kind of discrimi-
nation. “Give me money right now” does not express an idea
or message about politics, the arts, or any other topic on
which the government may seek to throttle expression in or-
der to protect itself or a favored set of speakers. Springfield’s
ordinance does not regulate speech by the pitch used; it does
not say, for example, that “give me money because I’m
homeless” or “give me money because I support the gover-
nor” is permissible, while “give me money because my
daughter is sick” or “give me money because the distribu-
tion of income is inequitable” is forbidden.
8 No. 13-3581
The ordinance is indifferent to the solicitor’s stated rea-
son for seeking money, or whether the requester states any
reason at all. And if the panhandler uses a sign, which is less
threatening than oral demands (the requester need not ap-
proach the target), there is no restriction. Springfield has not
meddled with the marketplace of ideas. Here, as in McCullen
v. Coakley, 134 S. Ct. at 2530–32, what activates the prohibi-
tion is where a person says something (in the “downtown
historic district”) rather than what position a person takes on
a political or literary question. Petitioners are free to ask for
money anywhere in Springfield outside the “downtown his-
toric district”. The Court added in McCullen that selective
exemptions from an otherwise-neutral rule do not make that
rule content-based. It follows that Springfield’s exemption
for signs does not make its ordinance content-based, and
plaintiffs do not argue otherwise.
The disagreement within the Court in McCullen about
how to distinguish a content-based from a content-neutral
law (four Justices thought that law to have been content-
based)—and the conflict among the circuits about panhan-
dling ordinances—shows that it is difficult to be confident
about how the line between subject-matter (usually allowed)
and content-based (usually forbidden) distinctions is drawn.
We do not profess certainty about our conclusion that the
ordinance is content-neutral. But this was Justice Kennedy’s
understanding in Lee. Evaluated by the standard for time,
place, and manner restrictions Springfield’s ordinance is
within the power of state and local government.
AFFIRMED
No. 13-3581 9
MANION, Circuit Judge, dissenting.
Today the court holds that a panhandler who asks a
passerby for money in the downtown historic district of the
City of Springfield commits a crime and may face criminal
prosecution for this simple request. This conclusion is alien to
our First Amendment jurisprudence. Accordingly, I do not join
the opinion of the court because the City of Springfield’s
panhandling ordinance is a content-based regulation of speech,
subject to strict scrutiny. By concluding that the ordinance is
content-neutral, the court misapplies the Supreme Court’s
content-based regulation jurisprudence. Consequently, I
respectfully dissent.
Section 131.06(e) of the City of Springfield Municipal Code
bans panhandling in the City of Springfield’s (the “City”)
“downtown historic district.” The ordinance defines panhan-
dling, in pertinent part, as “[a]ny solicitation made in person
… in which a person requests an immediate donation of money
or other gratuity.” § 131.06(a)(1).1 But the ordinance explicitly
exempts from the definition of panhandling the passive
display of a sign that invites donations without making a
“vocal request.” § 131.06(b).
The Supreme Court has upheld solicitation bans three
times, i.e., Int’l Soc. for Krishna Consciousness v. Lee, 505 U.S. 672(1992); United States v. Kokinda, 497 U.S. 720 (1990) (plurality);
and Heffron v. Int’l Soc. for Krishna Consciousness, 452 U.S. 640(1981). But the governmental regulation implicated in those
decisions applied to all forms of solicitation. See Lee, 505 U.S. at
676; Kokinda, 497 U.S. at 724; Heffron, 452 U.S. at 643–44. In our
case, however, the City’s ordinance does not ban all solicita-
1
The ordinance does not define “gratuity.”
10 No. 13-3581
tion, but, as discussed in more detail below, distinguishes
among various types of solicitation.
Likewise, we upheld a solicitation ban in Gresham v.
Peterson, 225 F.3d 899 (7th Cir. 2000). But Gresham was pre-
sented to us in a materially different posture, where the parties
agreed that the regulations were content-neutral, and so we
did not decide whether the Indianapolis ordinance could be
justified without reference to the content of the regulated
speech. Id. at 906. So we must now answer the question that
has remained unanswered after the Supreme Court’s decisions
and Gresham—specifically, whether such an ordinance is
content-based or content-neutral.
The court asserts a division among five Circuits regarding
whether anti-panhandling ordinances like the one before us are
content-based or content-neutral. It states that the Fourth,
Sixth, and Ninth Circuits have struck down anti-panhandling
ordinances as content-based, while the First Circuit and
District of Columbia Circuits have upheld anti-panhandling
ordinances as content-neutral. Faced with what it understands
to be a fork in the road, the court takes the path less-traveled,
and joins the First and District of Columbia Circuits. I agree
with the court’s assertion that three Circuits have struck down
anti-panhandling ordinances as content-based, but I disagree
with the court’s conclusion that the First Circuit’s decision
conflicts with them. A careful look at each of the five cases is
therefore necessary.
A. All three Circuits to address similar regulations of speech
have concluded that they are content-based.
Three Circuit decisions have held that statutory prohibi-
tions against immediate requests for monetary donations are
content-based. In Am. Civil Liberties Union of Nev. v. City of Las
No. 13-3581 11
Vegas, 466 F.3d 784 (9th Cir. 2006) (“ACLU”), the Ninth Circuit
struck down an ordinance that prohibited panhandling on a
five-block stretch of public sidewalks after holding that it was
a content-based restriction in violation of the First Amend-
ment, and observed that “[a]lthough courts have held that bans
on the act of solicitation are content-neutral, we have not found
any case holding that a regulation that separates out words of
solicitation for different treatment is content-neutral.” Id. at 794
(emphasis in original).
Likewise, in Speet v. Schuette, 726 F.3d 867 (6th Cir. 2013),
the Sixth Circuit struck down a Michigan statute that
criminalized begging in a public place. Id. at 870. There, the
court held that “Michigan’s anti-begging statute cannot
withstand facial attack because it prohibits a substantial
amount of solicitation, an activity that the First Amendment
protects, but allows other solicitation based on content.” Id.
Finally, in a case very similar to the one before us, in
Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013),
the Fourth Circuit confronted a challenge to a city ordinance
that made it “unlawful for any person to solicit money or other
things of value or to solicit the sale of goods or services on the
Downtown Mall within fifty (50) feet (in any direction) or 2nd
Street West and 4th Street East, when those streets are open to
vehicular traffic.” Id. at 552. Like our case, “‘solicit’ mean[t] to
request an immediate donation of money or other thing of
value from another person, regardless of the solicitor’s purpose
or intended use of the money or other thing of value.” Id. In
Clatterbuck, the district court concluded that the ordinance was
content-neutral because it “d[id] not distinguish between
12 No. 13-3581
favored and disfavored solicitation,” but rather “applie[d] to
all forms of solicitations, regardless of the solicitor’s purpose
or the content of the solicitor’s speech.” Id. at 556. The Fourth
Circuit held that the district court’s conclusion was incorrect
and reversed. Id. The court stated:
The Ordinance plainly distinguishes between types of
solicitations on its face. Whether the Ordinance is
violated turns solely on the nature or content of the
solicitor’s speech: it prohibits solicitations that request
immediate donations of things of value, while allowing
other types of solicitations, such as those that request
future donations, or those that request things which
may have no “value”—a signature or kind word,
perhaps.
Id. In fact, the rationale adopted by the district court in
Clatterbuck is precisely the argument that the district court
adopted in this case—that the ordinance was content-neutral
because it “d[id] not distinguish between favored and disfa-
vored solicitation,” but rather “applie[d] to all forms of
solicitations, regardless of the solicitor’s purpose or the content
of the solicitor’s speech.” But, the Fourth Circuit expressly
rejected the argument when it held that the ordinance was
content-based because it did not distinguish between favored
and disfavored content of the solicitor’s speech. Id. Like
Clatterbuck, here the City’s ordinance permits some verbal
requests for money, but it specifically prohibits a verbal
request for money for a panhandler’s personal use.
No. 13-3581 13
B. The First Circuit’s decision is not in conflict with the
Fourth, Sixth, and Ninth Circuits, but does conflict with
the District of Columbia Circuit.
The First Circuit’s decision does not conflict with the three
Circuits that have held that anti-panhandling ordinances are a
content-based regulation of speech. In Thayer v. City of Worces-
ter, 755 F.3d 60 (1st Cir. 2014), the First Circuit addressed an
ordinance that made it “unlawful for any person to beg,
panhandle or solicit any other person in an aggressive man-
ner.” Worcester Revised Ordinances, ch. 9, § 16(d). The ordinance
defined “begging” or “panhandling” as “asking for money or
objects of value, with the intention that the money or object be
transferred at that time, and at that place.” Id. at §16(c).
Additionally, the ordinance defined “solicit[ation]” as “using
the spoken, written, or printed word, bodily gestures, signs, or
other means of communication with the purpose of obtaining
an immediate donation of money or other thing of value the
same as begging or panhandling and also include the offer to
immediately exchange and/or sell any goods or services.” Id.
The First Circuit concluded that the ordinance was content-
neutral. Thayer, 755 F.3d at 71.
The ordinance in Thayer was designed to combat the ill
effects of “aggressive” solicitation and prohibits “continuing to
solicit from a person after the person has given a negative response
to such solicitation,” or soliciting someone “in a manner …
likely to cause a reasonable person to fear immediate bodily
harm.” Worcester Revised Ordinances, ch. 9, §§ 16(c) (emphasis
14 No. 13-3581
added), 16(a)(3)(H).2 Importantly, the plain text of the ordi-
nance allows at least one verbal solicitation for money, and
prohibits only aggressive follow-up after a negative response.3
Because the ordinance in Thayer allows at least one verbal
solicitation for money, what is criminal in the City of Spring-
field is legal in the First Circuit. Thus, Thayer does not com-
pound the District of Columbia Circuit’s split with the three
Circuit court cases I have discussed—rather it is entirely
consistent with all of them.4
C. The District of Columbia Circuit’s decision should not be
followed.
Finally, I address the District of Columbia Circuit’s decision
in ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949 (D.C. Cir.
1995), the only Circuit court decision of the five discussed that
does not involve a panhandler. In ISKCON, the court consid-
ered an “as-applied” challenge to a regulation that prohibited
“[s]oliciting or demanding gifts, money, goods or services [in
2
In our case, the plaintiffs brought no challenge to the part of the City’s
ordinance prohibiting aggressive solicitation.
3
“Aggressive” describes the manner of conduct—it obviously does not
refer to “content.”
4
Moreover, Thayer did not address whether the statute was facially
content-based but skipped over that prong entirely and considered only
“‘whether the government … adopted [the] regulation of speech because of
disagreement with the message it conveys,’”and ultimately upheld the
ordinance. 755 F.3d at 67 (quoting Ward, 491 U.S. at 791). So Thayer simply
did not address the question before us in the present appeal. It also
neglected to discuss the Fourth, Sixth, or Ninth Circuits’ decisions.
No. 13-3581 15
the National Capital Region parks].” Id. at 954. Although the
regulation applied broadly, the court accepted the Park
Service’s interpretation of “solicitation” to mean “only an in-
person request for immediate payment.” Id. at 954–55. The
court rejected the plaintiffs’ argument that the regulation was
content-based. Id. The court held that a prohibition on “in-
person solicitation for immediate payment regulates the
manner but not the content of expression.” Id. (citing Lee, 505
U.S. at 704–07 (Kennedy, J., concurring)).
The reasoning of ISKCON is unsound. The first step in First
Amendment public forum analysis is to examine the regulation
to determine whether it discriminates on the basis of content,
viewpoint, or not at all. If a court concludes the regulation is
content-neutral, then it asks “whether the requirements are
‘narrowly tailored to serve a significant governmental interest,
and … leave open ample alternative channels for communication
of the [regulated] information.’” ISKCON, 61 F.3d at 954 (citations
omitted). But ISKCON skipped the first step, and started with
the second. It interpreted the regulation, as-applied, and held
that it was content-neutral because the plaintiffs could make their
request for donations using leaflets with donation instructions.
Id. at 956. In other words, the court determined that because the
regulation left open ample alternative channels for communica-
tion, it was content-neutral. Id. It then applied the remaining parts
of the second half of the analysis to strike down the regulation.
Id. This approach put the cart before the horse. Ultimately, the
court recognized that the Service’s interest was significant, but
it nevertheless struck down the regulation because it was not
narrowly-tailored. Id. In short, ISKCON should not be relied upon
16 No. 13-3581
because it assumed what was at issue—that is, that the regulation
was content-neutral.
Rather than compounding the Circuit split, a look at the
Supreme Court’s latest First Amendment case reminds us that
a regulation is content-based if it draws “content-based
distinctions on its face.” McCullen v. Coakley, 134 S. Ct. 2518, 2531
(2014). A regulation does so “if it require[s] ‘enforcement
authorities’ to ‘examine the content of the message that is
conveyed to determine whether’ a violation has occurred.” Id.(quoting F.C.C. v. League of Women Voters of California, 468 U.S.
364, 383 (1984)). That is, does a violation of the regulation turn
on “what [the defendants] say[?]” Id. (quoting Holder v.
Humanitarian Law Project, 561 U.S. 1, 27 (2010)).
To answer the question implicitly posed by these First
Amendment cases, we must temporarily step into the shoes of
the City’s enforcement authorities. A police officer seeking to
enforce the City’s ordinance must listen to what the speaker is
saying in order to determine whether the speaker has violated
the ordinance. Indeed, the officer must determine on which side
of at least three different verbal distinctions the speech falls when
evaluating whether the ordinance has been violated. First, the
officer must determine whether the speech is a request for money
or other gratuity (potentially a violation) or merely a request for
the listener’s time, signature, or labor (not a violation). Second,
the officer must determine whether the speech is a request for
an immediate transfer of money (potentially a violation) or merely
a request for the transfer of money at a future date (not a
violation). Third, the officer must determine whether the speech
is a request for a charitable donation (potentially a violation) or
No. 13-3581 17
merely a request for a commercial transaction (not a violation).
The officer cannot answer any of these questions without listening
to and understanding what the speaker is saying. That is precisely
the sort of situation that the Supreme Court said involves a
content-based regulation. See Snyder, 131 S. Ct. at 1219 (noting
that a regulation would be content-based if speakers “standing
at the very spot where [the plaintiffs] stood,” but making slightly
different vocal requests “would not [be] subjected to liability”);
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)
(holding that, because the determination of “whether any
particular newsrack [fell] within the ban [was] determined by
the content of the publication resting inside that newsrack[,]”
the regulation was content-based); see also Holder v. Humanitarian
Law Project, 561 U.S. 1, 27 (2010) (holding that a law “regulates
speech on the basis of content” if determining whether individuals
have violated the law “depends on what they say”). That the
officer must listen to and understand the speech to determine
if the ordinance has been violated means that the ordinance is
content-based, unlike those laws which can be imposed based
merely on the volume, location, or conduct accompanying the
speech.
The court says that it does not necessarily matter that the
ordinance targets speakers based on what they say, so long as
the ordinance does not “restrict[] speech because of the ideas
it conveys” or because it “disapproves of its message.” Op. at
7; Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). On this
logic, the court concludes that the statement “‘[g]ive me money
right now’ does not express an idea or message about politics,
the arts, or any other topic on which the government may seek
to throttle expression in order to protect itself or a favored set
18 No. 13-3581
of speakers.” Op. at 7. However, our earlier decision in Gresham
disputes this conclusion. Gresham, 225 F.3d at 904 (“Beggars at
times may communicate important political or social messages
in their appeals for money, explaining their conditions related
to veteran status, homelessness, unemployment and disability,
to name a few. Like the organized charities, their messages cannot
always be easily separated from their need for money”). In any
event, the court concludes that if an ordinance is not viewpoint-
based, then it must be content-neutral. Id. By this logic, a content-
based challenge to an ordinance that is not viewpoint-based “loses
by default.” Hayden ex rel. A.H. v. Greensburg Cmty. Sch., 743 F.3d
569, 583–84 (7th Cir. 2014) (Manion, J., concurring in part and
dissenting in part). I disagree. In its attempt to determine whether
the ordinance is content-based, the court examines whether the
ordinance strips a viewpoint from the marketplace of ideas. That
is not the test for determining whether an ordinance is a content-
based regulation of speech.
Even if Ward and its progeny implicitly suggest some legal
distinction between permissible restrictions on what a speaker says
and the speaker’s message, the City’s ordinance is still content-based
because it advantages commercial speech over charitable speech.
The City’s ordinance facially prohibits someone from vocally
communicating the message, “I want money,” while allowing
an identically situated speaker to communicate the message “I
want money, and I will give you something of value in return.”
Thus, the City’s ordinance leaves commercial speech compara-
tively unregulated, but prohibits a type of vocal speech that has
traditionally enjoyed greater constitutional protections—that
is, speech soliciting charitable activity. Riley v. Nat’l Fed’n of the
Blind of N.C., Inc., 487 U.S. 781, 789 (1988) (“[T]he solicitation of
No. 13-3581 19
charitable contributions is protected speech”). Although the court
observes that commercial speech is often subjected to content-
based restrictions, Op. at 6, it fails to address the content-based
distinction the ordinance draws between commercial speech and
charitable speech. However, the two Circuits that have previously
considered similar regulations that distinguish between
commercial speech and charitable speech both concluded that
they were content-based. See Speet, 726 F.3d at 875; ACLU, 466
F.3d at 794.5
Because the City’s ordinance is content-based, we may only
uphold the ordinance if it satisfies strict-scrutiny review. United
States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000); Entm’t
Software Ass’n v. Blagojevich, 469 F.3d 641, 646 (7th Cir. 2006).
“When the Government restricts speech, the Government bears
the burden of proving the constitutionality of its actions.” Playboy,
529 U.S. at 816. But here the City offers no argument that the
ordinance can satisfy that hefty burden. Cf. Horina v. Granite City,
538 F.3d 624, 633–34 (7th Cir. 2008) (failure to assert a government
interest necessarily fails to prove a government interest). And
indeed, the City all but concedes that it cannot satisfy this
demanding standard. See City Br. 3 n.1.
5
The First, Fourth, and District of Columbia Circuits’ decisions involved
laws that prohibited both in-person solicitations for charitable donations
and in-person solicitations for commercial transactions. See Worcester
Revised Ordinances, ch. 9, § 16 (defining “solicit” and “solicitation” to include
both requests for immediate donations and requests for immediate
commercial transactions); Clatterbuck, 708 F.3d at 552; ISKCON, 61 F.3d at953–54 (noting that the park regulation prohibited both solicitation for
charitable contributions and commercial sales).
20 No. 13-3581
The City’s ordinance prohibiting vocal requests for immediate
donations of money or other gratuity at all times throughout
the downtown historic district is a content-based regulation.
Because the City has not alleged that the ordinance’s method
of restricting speech is the least restrictive means to further a
compelling government interest, the City has failed to demonstrate
that the ordinance satisfies strict scrutiny. Sable Commc’ns of Cal.
v. FCC, 492 U.S. 115, 126 (1989) (“The Government may …
regulate the content of constitutionally protected speech in order
to promote a compelling interest if it chooses the least restrictive
means to further the articulated interest”).
For the foregoing reasons, I would reverse the district court’s
order denying the plaintiffs’ motion for a preliminary injunction
and remand with instructions to enter a preliminary injunction
enjoining the enforcement of City ordinance §131.06(a)(1).
Accordingly, I respectfully dissent.