Recycle for Change v. City of Oakland , 856 F.3d 666 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RECYCLE FOR CHANGE, No. 16-15295
Plaintiff-Appellant,
D.C. No.
v. 3:15-cv-05093-WHO
CITY OF OAKLAND, a California
Municipal Corporation, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick III, District Judge, Presiding
Argued and Submitted September 13, 2016
San Francisco, California
Filed May 9, 2017
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges, and John R. Tunheim,* Chief District Judge.
Opinion by Judge Gould
*
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
2 RECYCLE FOR CHANGE V. CITY OF OAKLAND
SUMMARY**
Civil Rights
The panel affirmed the denial of preliminary injunctive
relief in an action brought by Recycle for Change, a
California non-profit corporation, alleging that the City of
Oakland’s ordinance regulating unattended donation
collection boxes was inconsistent with the First Amendment.
The panel held that assuming that unattended donation
collection boxes constituted protected speech or expressive
conduct—an issue the panel did not decide—the plaintiff was
unlikely to succeed on the merits of its First Amendment
claim. The panel held that because the Ordinance does not,
by its terms, discriminate on the basis of content, and there
was no evidence that Oakland enacted the Ordinance with an
intent to burden plaintiff’s message of charitable solicitation
or out of any disagreement with that message, the Ordinance
was content neutral. Applying intermediate scrutiny, the
panel held that the Ordinance plainly served important
governmental interests unrelated to the suppression of
protected speech. Additionally, the Ordinance was
sufficiently narrowly tailored and left alternative avenues of
communication for plaintiff to express its message.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RECYCLE FOR CHANGE V. CITY OF OAKLAND 3
COUNSEL
Daniel P. Dalton (argued) and Lawrence J. Opalewski, Jr.,
Dalton & Tomich PLC, Detroit, Michigan, for Plaintiff-
Appellant.
Selia M. Warren (argued), Deputy City Attorney; Otis
McGee, Jr., Chief Assistant City Attorney; Barbara J. Parker,
City Attorney; Office of the City Attorney, Oakland,
California; for Defendant-Appellee.
Geoffrey M. Pipoly, Williams Montgomery & John Ltd.,
Chicago, Illinois; Stephen J. van Stempvoort, Miller Johnson,
Grand Rapids, Michigan; for Amicus Curiae Planet Aid, Inc.
Derek P. Cole, Cota Cole LLP, Roseville, California, for
Amicus Curiae League of California Cities.
OPINION
GOULD, Circuit Judge:
Recycle for Change (“RFC”), a California non-profit
corporation, challenges the City of Oakland’s (“Oakland”)
ordinance regulating unattended donation collection boxes
(“UDCBs”) as inconsistent with the First Amendment. RFC
sought a preliminary injunction from the district court, which
the court denied. RFC appeals that order. Assuming UDCBs
constitute protected speech or expressive conduct—an issue
we do not decide—we hold that RFC is unlikely to succeed
on the merits of its First Amendment claim because the
ordinance is content neutral and survives intermediate
4 RECYCLE FOR CHANGE V. CITY OF OAKLAND
scrutiny. We affirm the denial of preliminary injunctive
relief.
I
RFC recycles and reuses donated materials for dual
purposes: to conserve environmental resources and to raise
funds to be donated to various charities. RFC operates
UDCBs in Oakland as a method of collecting donated
materials from the public. RFC places UDCBs on private
property with the property possessor’s permission. The
revenue RFC generates from its UDCB operations is a
significant part of its overall income.
On October 20, 2015, Oakland enacted Ordinance No.
13335 C.M.S. (the “Ordinance”). Adding Chapter 5.19 to the
Oakland Municipal Code, the Ordinance created a
comprehensive licensing scheme governing the operation of
UDCBs within city limits. By its terms, the Ordinance
applies only to UDCBs, which it defines as “unstaffed drop-
off boxes, containers, receptacles, or similar facility that
accept textiles, shoes, books and/or other salvageable
personal property items to be used by the operator for
distribution, resale, or recycling.” Oakland Mun. Code
§ 5.19.050. With exceptions irrelevant to this case, the
Ordinance makes it “unlawful to place, operate, maintain or
allow a UDCB on any real property unless the parcel
owner/agent and/or operator first obtain[s] an annually
renewable UDCB permit from the City.” Id. § 5.19.060(A).
To obtain a permit, an operator must, inter alia, pay an
application fee that costs about $535, propose a site plan, and
obtain at least one million dollars in liability insurance. Id.
§ 5.19.070. The annual license renewal fee is about $246.
The Ordinance sets restrictions on box placement location
RECYCLE FOR CHANGE V. CITY OF OAKLAND 5
and size, requires specific periodic maintenance, and
prohibits placing a UDCB within one thousand feet of
another UDCB. Id. §§ 5.19.120, 5.19.130.
RFC sued Oakland, asserting that the Ordinance violates
the Free Speech and Equal Protection Clauses of the United
States Constitution and Article 1, Sections 2 and 7 of the
California Constitution. RFC filed a motion for a preliminary
injunction against enforcement of the Ordinance based on the
federal constitutional claims only. The district court denied
RFC’s motion after finding that RFC (1) is unlikely to
succeed on the merits on its First Amendment claim because
the Ordinance is content neutral and survives intermediate
scrutiny, (2) is unlikely to succeed on the merits on its
Fourteenth Amendment claim because the Ordinance survives
rational basis review, and (3) failed to demonstrate likelihood
of irreparable harm. RFC appeals the district court’s order
with respect to its First Amendment claim only.
II
This court has jurisdiction to review an order refusing a
preliminary injunction. 28 U.S.C. § 1292(a)(1). We review
the district court’s weighing of the relevant factors for abuse
of discretion, but its underlying conclusions of law de novo.
See Int’l Franchise Ass’n v. City of Seattle, 803 F.3d 389, 398
(9th Cir. 2015).
“A plaintiff seeking a preliminary injunction must
establish that [it] is [1] likely to succeed on the merits,
[2] that [it] is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of equities tips in
[its] favor, and [4] that an injunction is in the public interest.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
6 RECYCLE FOR CHANGE V. CITY OF OAKLAND
We consider these factors on a sliding scale, such “that a
stronger showing of one element may offset a weaker
showing of another.” All. for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1131 (9th Cir. 2011). RFC contends that the
district court erred by concluding that RFC was unlikely to
succeed on the merits of its First Amendment claim and
would not suffer irreparable injury absent an injunction.
Because we reject RFC’s first argument, we do not reach the
second.
III
The first step of First Amendment analysis is to determine
whether the regulation implicates protected expression. In its
briefing, Oakland does not dispute RFC’s contention that
UDCBs in some respects constitute expression, and so enjoy
a measure of protection under the First Amendment. Because
we conclude that RFC is unlikely to succeed on the merits of
its claim even if that is so, we assume without deciding that
the Ordinance triggers First Amendment analysis.
So assuming, we begin from the recognition that
charitable solicitations are protected speech. See Vill. of
Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 632
(1980). The Ordinance impacts to a degree RFC’s ability to
communicate its charitable solicitations message on private
property.
Next, we must ask whether the Ordinance is content based
or content neutral. If content based, we review it using strict
scrutiny. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227
(2015). If, however, such a law does not “suppress[]
expression out of concern for its likely communicative
impact,” we ordinarily apply intermediate scrutiny (or, as
RECYCLE FOR CHANGE V. CITY OF OAKLAND 7
described below, a version of intermediate scrutiny unique to
incidental regulation of expressive conduct).1 United States
v. Swisher, 811 F.3d 299, 314 (9th Cir. 2016) (en banc)
(quoting United States v. Eichman, 496 U.S. 310, 317
(1990)); see also United States v. O’Brien, 391 U.S. 367, 377
(1968).
A
A content-based law is one that “target[s] speech based on
its communicative content” or “applies to particular speech
because of the topic discussed or the idea or message
expressed.” Reed, 135 S. Ct. at 2226–27. The “crucial first
step” in determining whether a law is content based is to
“consider whether a regulation of speech ‘on its face’ draws
distinctions based on the message a speaker conveys.” Id. at
2227–28 (quoting Sorrell v. IMS Health, Inc., 564 U.S. 552,
566 (2011)). We also apply strict scrutiny if the law is
facially neutral but “cannot be ‘justified without reference to
the content of the regulated speech,’ or [was] adopted by the
government ‘because of disagreement with the message [the
speech] conveys.’” Id. at 2227 (quoting Ward v. Rock
1
We note that although the content-based/content-neutral distinction
has in recent years become largely determinative of the applicable level
of scrutiny even as to regulation of fully private speech, the distinction
originated in specialized areas of First Amendment analysis. See
generally Daniel A. Farber, The First Amendment 23–41 (4th ed. 2014).
The Supreme Court has never held that broad, content-neutral censorship
of fully private speech would be subject to less than strict scrutiny. Cf.
Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc.,
482 U.S. 569, 575 (1987) (holding that a “ban [on all speech] cannot be
justified even [in] a nonpublic forum because no conceivable
governmental interest would justify such an absolute prohibition of
speech”). For present purposes, however, the content-based/content-
neutral distinction governs.
8 RECYCLE FOR CHANGE V. CITY OF OAKLAND
Against Racism, 491 U.S. 781, 791 (1989)). Here, the
Ordinance is content neutral because it does not, on its face,
discriminate on the basis of content; can be justified without
reference to the content of the regulated speech; and there is
no evidence that Oakland adopted the Ordinance because it
disagreed with the message conveyed by UDCBs.
RFC argues that the Ordinance is content based because
an enforcing officer would have to examine a container’s
message and determine whether the container solicits
charitable donations to determine whether a receptacle is
subject to the Ordinance’s requirements. We reject this
argument for two reasons. First, it is factually incorrect. The
Ordinance’s application is not limited to UDCBs soliciting
charitable donations. It applies to any unattended structure
that accepts personal items “for distribution, resale, or
recycling.” Oakland Mun. Code § 5.19.050. It does not
matter why the UDCB operator is collecting the personal
items, whether it be for charitable purposes or for-profit
endeavors. The record notes that one of the largest UDCB
operators in Oakland is USAgain, a for-profit company. To
enforce the Ordinance, an officer need only determine
whether (1) an unattended structure accepts personal items
and (2) the items will be distributed, resold, or recycled.
Second, that an officer must inspect a UDCB’s message
to determine whether it is subject to the Ordinance does not
render the Ordinance per se content based. While at times we
have used this “enforcing officer” test to explain why a law
is content based, e.g., Lone Star Sec. & Video, Inc. v. City of
Los Angeles, 827 F.3d 1192, 1200 (9th Cir. 2016); S.O.C.,
Inc. v. Cty. of Clark, 152 F.3d 1136, 1145 (9th Cir. 1998);
Foti v. City of Menlo Park, 146 F.3d 629, 636 (9th Cir. 1998),
we—and the Supreme Court—have also cautioned that an
RECYCLE FOR CHANGE V. CITY OF OAKLAND 9
officer’s inspection of a speaker’s message is not dispositive
on the question of content neutrality. See, e.g., Hill v.
Colorado, 530 U.S. 703, 721 (2000) (“It is common in the
law to examine the content of a communication to determine
the speaker’s purpose. . . . We have never held, or suggested,
that it is improper to look at the content of an oral or written
statement in order to determine whether a rule of law applies
to a course of conduct.”); Berger v. City of Seattle, 569 F.3d
1029, 1052 (9th Cir. 2009) (“Our conclusion that the active
solicitation ban is content based is supported—but not
determined—by the fact that an officer seeking to enforce the
active solicitation ban must necessarily examine the content
of the message that is conveyed.” (emphasis added) (internal
quotation marks omitted)). And this is for good reason. The
“officer must read it” test cuts too broadly if used “as a
bellwether of content. If applied without common sense, this
principle would mean that every sign, except a blank sign,
would be content based.” See Reed v. Town of Gilbert,
587 F.3d 966, 978–79 (9th Cir. 2009), rev’d on other
grounds, 135 S. Ct. at 2232 (2015).2
We are left with the following question: does a law that
requires an enforcing officer to decide whether a UDCB
collects personal items for the purpose of distributing,
reusing, or recycling those items—regardless of the purposes
of such activity—discriminate on the basis of content? Or,
stated another way, does the activity of collecting,
distributing, reusing, or recycling personal items—or the
2
While the Supreme Court reversed our court in Reed, the Court held
only that the sign regulation was content based on its face because its
application depended “entirely on the communicative content of the sign.”
135 S. Ct. at 2227. It did not adopt, or even discuss, the merits of the
“officer must read it” test as a proper content-neutrality analysis.
10 RECYCLE FOR CHANGE V. CITY OF OAKLAND
solicitation of items to further such activity—constitute
“communicative content,” Reed, 135 S. Ct. at 227, against
which any hint of discrimination should trigger strict
scrutiny? We think not.
The Sixth Circuit’s decision in Planet Aid v. City of St.
Johns, 782 F.3d 318 (6th Cir. 2015), is instructive. There, the
court determined that the City of St. John’s ordinance
banning UDCBs collecting charitable donations was content
based not because it required enforcing officers to look just
at the message a UDCB itself was expressing, but because it
required officers to look for a specific message soliciting
charitable donations.3 The court explained that, because the
First Amendment protects speech soliciting charitable
donations, see Vill. of Schaumburg, 444 U.S. 620, the
message expressed by UDCBs accepting charitable donations
constitutes “content.” See Planet Aid, 782 F.3d at 324–26.
3
The ordinance in Planet Aid did not on its face make any distinction
between UDCBs that engage in charitable solicitation and those that do
not (such as UDCBs operated by for-profit companies). The ordinance in
Planet Aid applied to “outdoor, unattended receptacle[s] designed with a
door, slot, or other opening that is intended to accept donated goods or
items.” 782 F.3d at 322. The word “donation” need not have an
exclusively charitable connotation. See Oxford English Dictionary
(defining donation as “[t]he action or faculty of giving or presenting;
presentation, bestowal; grant,” “[t]he action or right of bestowing or
conferring a benefice; the ‘gift,’” and “[t]he action or contract by which
a person transfers the ownership of a thing from himself to
another”), available at http://www.oed.com/view/Entry/
56742?redirectedFrom=donation#eid (last viewed on December 16, 2016).
But it is clear from the court’s discussion in Planet Aid that it interpreted
the ordinance to apply only to receptacles soliciting donations to charitable
causes. Id. at 328 (“The ordinance . . . . bans only those unattended,
outdoor receptacles with an expressive message on a particular
topic—charitable solicitation and giving.” (emphasis added)).
RECYCLE FOR CHANGE V. CITY OF OAKLAND 11
Because St. John’s ordinance targeted only those bins
engaging in a specific kind of protected expression, it was
content based. Id. at 328. As the court explained, the St.
Johns ordinance “ban[ned] altogether an entire subclass of
[bins] . . . with an expressive message protected by the First
Amendment.” Id. at 329–30. Planet Aid is instructive
because it helps give meaning to the term “content” when we
ask whether a law discriminates on the basis of content. In
Planet Aid, the bins’ message of charitable giving was viewed
as “content” because it is a particular kind of protected
speech.4
Another helpful example is seen in the Supreme Court’s
opinion in Reed, in which the plaintiffs challenged an
ordinance distinguishing between “temporary directional
signs,” “political signs,” and “ideological signs.” 135 S. Ct.
at 2227. The Court explained that such distinctions were
based on content because each sign type represented a
particular protected message:
The restrictions in the Sign Code that apply to
any given sign thus depend entirely on the
communicative content of the sign. If a sign
4
We also note that the Planet Aid court missed an important step in
its analysis—it did not clarify whether a UDCB collecting charitable
donations engages in pure speech or expressive conduct. For purposes of
our analysis, we assume certain messages regarding charitable solicitation
displayed on a bin constitute protected speech, but the bin itself is, at
best—and this assumption is generous—expressive conduct rather than
pure speech. See Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir. 1999)
(“Non-verbal conduct implicates the First Amendment when it is intended
to convey a ‘particularized message’ and the likelihood is great that the
message would be so understood.” (quoting Texas v. Johnson, 491 U.S.
397, 404 (1989)).
12 RECYCLE FOR CHANGE V. CITY OF OAKLAND
informs its reader of the time and place a book
club will discuss John Locke’s Two Treatises
of Government, that sign will be treated
differently from a sign expressing the view
that one should vote for one of Locke’s
followers in an upcoming election, and both
signs will be treated differently from a sign
expressing an ideological view rooted in
Locke’s theory of government. More to the
point, the Church’s signs inviting people to
attend its worship services are treated
differently from signs conveying other types
of ideas. On its face, the Sign Code is a
content-based regulation of speech.
Id.By contrast, here the Ordinance does not discriminate on
the basis of any message—whether by targeting speech
written on the boxes or by targeting the substantive content of
the boxes’ inherent expressive component. It discriminates
on the basis of non-expressive, non-communicative conduct.
Although collecting donations to further charitable causes is
“content” because it is “intertwined with informative and
perhaps persuasive speech seeking support for particular
causes or for particular views on economic, political, or social
issues,” Schaumburg, 444 U.S. at 632, that is not the
Ordinance’s target. Instead, the Ordinance regulates the
unattended collection of personal items for distribution, reuse,
and recycling, without regard to the charitable or business
purpose for doing so. That conduct is neither expressive nor
communicative.
RECYCLE FOR CHANGE V. CITY OF OAKLAND 13
In this sense, the Ordinance is more similar to the law in
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622(1994), which the Supreme Court held to be content neutral.
There, cable companies challenged the “must-carry”
provisions of the Cable Television Consumer Protection and
Competition Act of 1992, which required “cable operators to
carry the signals of a specified number of local broadcast
television stations.” Id. at 630. The Court explained that the
requirement was content neutral because, despite
“interfer[ing] with cable operators’ editorial discretion by
compelling them to offer carriage to a certain minimum
number of broadcast stations,” it did not “impose[] a
restriction, penalty, or burden by reason of the views,
programs, or stations the cable operator has selected or will
select.” Id. at 644–45. The same is true here: the purpose of,
or message expressed by, RFC’s UDCBs is irrelevant to
whether they are subject to the Ordinance’s requirements.
We recognize, as RFC argues, that the Ordinance burdens
RFC’s ability to erect UDCBs by, for example, limiting the
locations in which it can operate UDCBs and imposing
additional costs. And assuming, as we have, that RFC’s
charitable UDCBs implicate First Amendment protected
expression, the zoning limitations would burden to a degree
RFC’s ability to express its protected charitable solicitation
message. But those considerations alone do not make the
Ordinance content based. Rather, to prove that the Ordinance
is a content-based regulation of expressive conduct, RFC
would have to show that the law applies to its UDCBs
because the bins engage in charitable solicitation. See
Swisher, 811 F.3d at 314 (noting a content-based restriction
of symbolic speech “suppresses expression out of concern for
its likely communicative impact” (quoting Eichman, 496 U.S.
at 317)); cf. Ward, 491 U.S. at 791 (“A regulation that serves
14 RECYCLE FOR CHANGE V. CITY OF OAKLAND
purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or
messages but not others.”). On its face, the Ordinance does
not do so.
In sum, the Ordinance restricts the boxes themselves, as
collection devices for discarded material. Although the
function of the boxes requires that they contain a message
explaining their function, the Ordinance is indifferent with
regard to the nature of that explanation, the inducements
provided for donations, or the uses to which the donations
will be put. The Ordinance is therefore content neutral to the
extent it regulates speech or expressive activity at all.
Having concluded that the Ordinance is content neutral on
its face, we must also ask whether there is evidence that
Oakland passed the Ordinance with an intent to burden RFC’s
charitable message. Strict scrutiny is the appropriate level of
review if the Ordinance “cannot be justified without reference
to” RFC’s charitable message, or if the Ordinance “[was]
adopted . . . because of disagreement with” RFC’s charitable
message. Reed, 135 S. Ct. at 2227 (internal quotation marks
omitted) (quoting Ward, 491 U.S. at 791).
During oral argument, RFC argued that the purpose of the
Ordinance was to support brick-and-mortar charity
organizations, that is, organizations that run manned
storefronts. RFC waived this argument because it never
raised it in its briefs, other than in a terse one-sentence
footnote. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994) (“We review only issues which are argued specifically
and distinctly in a party’s opening brief. . . . [A] bare
assertion does not preserve a claim . . .”); Harger v. Dep’t of
Labor, 569 F.3d 898, 904 n.9 (9th Cir. 2009) (argument
RECYCLE FOR CHANGE V. CITY OF OAKLAND 15
raised for first time during oral argument will not be
considered). But even if we considered the merits of this
argument, we would reject it. That Oakland intended to
benefit charity organizations that operate in brick-and-mortar
stores is not discrimination on the basis of RFC’s message.
Rather, it discriminates based on how RFC solicits charitable
donations. Because RFC does not demonstrate how the
operation of UDCBs, rather than operation of a brick-and-
mortar store, is connected with its message of charitable
solicitation, this argument does not demonstrate an intent to
discriminate on the basis of content. See Leathers v.
Medlock, 499 U.S. 439, 449 (1991) (holding that a tax
imposed on cable television operators but not print media was
content neutral because, inter alia, there was no evidence that
the speech expressed by the exempt media and non-exempt
media “differ[ed] systematically in [their] message”).
The record does not support the contention that Oakland
passed the Ordinance with an intent to burden the message
expressed by RFC’s UDCBs. The Ordinance can be justified
by “other considerations”: the record suggests that the City
Council enacted the Ordinance out of concern that UDCBs
attract illegal dumping, scavenging, and graffiti, and had been
placed in a manner that tended to harm the safety of drivers
and pedestrians, and the Ordinance itself states that its
purpose is to “promote the health, safety, and/or welfare of
the public by providing minimum blight-related performance
standards for the operation” of UDCBs, Oakland Mun. Code
§ 5.19.010. See City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 47–48 (1986). Nor does RFC point to any
evidence in the record that anyone in the Oakland City
Council disagreed with RFC’s message.
16 RECYCLE FOR CHANGE V. CITY OF OAKLAND
Because the Ordinance does not, by its terms,
discriminate on the basis of content, and there is no evidence
that Oakland enacted the Ordinance with an intent to burden
RFC’s message of charitable solicitation or out of any
disagreement with that message, the Ordinance is content
neutral.
B
Having concluded that the Ordinance is content neutral,5
we now consider whether it survives the intermediate scrutiny
standard outlined in O’Brien. See Wilson v. Lynch, 835 F.3d
1083, 1096 (9th Cir. 2016). “Under O’Brien, ‘a government
regulation is sufficiently justified [1] if it is within the
constitutional power of the Government; [2] if it furthers an
important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to
the furtherance of that interest.’” Id. (quoting O’Brien,
391 U.S. at 377). We hold that the Ordinance satisfies this
level of scrutiny.
Oakland argues that it enacted the Ordinance to combat
blight, illegal dumping, graffiti, and traffic impediments that
endanger drivers and pedestrians. See also Oakland Mun.
Code § 5.19.010. These efforts are within the constitutional
power of the government and constitute a substantial
governmental interest. See Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 507–08 (1981) (“Nor can there be
5
Again, we assume for the purposes of this decision that the
Ordinance affects RFC’s ability to engage in a form of protected
expression related to charitable solicitation.
RECYCLE FOR CHANGE V. CITY OF OAKLAND 17
substantial doubt that the twin goals . . . [of] traffic safety and
the appearance of the city[ ]are substantial governmental
goals.”). The regulation of UDCB placement and upkeep
plainly serves these stated interests. By their nature,
unattended bins invite blight, illegal dumping, and graffiti
issues. And, as discussed above, these interests are unrelated
to the suppression of the UDCB operators’ speech.
Finally, the means by which the Ordinance pursues
Oakland’s goal of combating the negative impacts associated
with UDCBs are “narrowly tailored.” In the context of
content-neutral laws challenged under the First Amendment,
a regulation may be narrowly tailored even though it is “not
. . . the least restrictive or least intrusive means” of pursuing
the substantial governmental interest. Ward, 491 U.S. at 798.
“[T]he requirement of narrow tailoring is satisfied so long as
the . . . regulation promotes a substantial government interest
that would be achieved less effectively absent the regulation
. . . . [and s]o long as the means chosen are not substantially
broader than necessary to achieve the government’s interest.”
Id. at 799–800 (internal quotation marks omitted).
The Ordinance combats blight, illegal dumping, and
graffiti by requiring a thousand feet of distance between
UDCBs operations. As explained in the Interim City
Administrator’s report, “clustering of UDCBs can create the
appearance of an informal dumping area and attract
unintended items such as couches, appliances, and
electronics.” The report also explains that such distances
requirements are common to prevent secondary effects
produced by other kinds of operations that generate waste or
are the focus of “undesirable, nuisance-related activities.”
The thousand-feet-distance requirement is not substantially
broader than necessary to achieve the goal of combating
18 RECYCLE FOR CHANGE V. CITY OF OAKLAND
blight, dumping, and graffiti, and without that requirement,
those negative secondary effects would be worse. The same
is true for the traffic-related dangers. The Ordinance combats
traffic-related negative secondary effects by requiring that
UDCBs only be placed in particular areas so as to
accommodate the truck traffic required for maintenance.
While RFC argues that these location restrictions will
significantly decrease their UDCB operations, the
Administrator’s report explains, “there are still reasonable
opportunities to site new UDCBs in more appropriate
locations.” We agree with the district court that reasonable
alternative avenues of communication for RFC to express its
message of charitable solicitation remain in Oakland. RFC
may continue to operate UDCBs pursuant to the Ordinance’s
requirements, and it also may solicit charitable donations in
ways other than operating an unattended collection box. See
Young v. City of Simi Valley, 216 F.3d 807, 817 (9th Cir.
2000). Finally, the evidence does not suggest that the initial
or annual licensing fees are designed to do anything other
than defray administrative costs. Such fees do not facially
violate the First Amendment. See Kaplan v. Cty. of Los
Angeles, 894 F.2d 1076, 1081 (9th Cir. 1990); see also
Kwong v. Bloomberg, 723 F.3d 160, 165–66 (2d Cir. 2013).
In sum, the Ordinance plainly serves important
governmental interests unrelated to the suppression of
protected speech. The Ordinance is sufficiently narrowly
tailored and leaves alternative avenues of communication for
RFC to express its message. The district court did not err in
concluding that RFC is unlikely to succeed on the merits of
its First Amendment claim.
RECYCLE FOR CHANGE V. CITY OF OAKLAND 19
IV
On appeal, RFC argues that it will suffer irreparable harm
on the sole ground that it will experience a “loss of First
Amendment freedoms.” See Elrod v. Burns, 427 U.S. 347,
373 (1976). Because we hold that RFC did not demonstrate
that it is likely to succeed on the merits of its First
Amendment claim, we need not address RFC’s irreparable
harm argument. We note, however, that the argument is
derivative of RFC’s assertion that it is likely to succeed on
the merits.
V
Assuming the Oakland Ordinance implicates protected
speech or expressive conduct, it is not content based and
survives intermediate scrutiny. RFC has not shown that it is
likely to succeed on the merits of its First Amendment claim.
AFFIRMED.