Don Norton v. City of Springfield
612 F. App'x 386, 2015 U.S. App. LEXIS 13861, 806 F.3d 411 (2015)
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Rule of Law:
Under the First Amendment, a regulation of speech is content-based if it applies to particular speech because of the topic discussed or the idea or message expressed, regardless of the government’s benign motive or viewpoint neutrality, and such a content-based regulation is subject to strict scrutiny.
Facts:
- Springfield, Illinois, enacted Municipal Code § 131.06, an ordinance prohibiting panhandling in its "downtown historic district."
- The downtown historic district constitutes less than 2% of the City’s area but contains principal shopping, entertainment, and governmental areas, including the Statehouse.
- The ordinance defines panhandling as an oral request for an immediate donation of money.
- The ordinance allows requests for money made through signs.
- The ordinance permits oral pleas to send money at a later time.
- Springfield justified the distinction by viewing signs and requests for deferred donations as less 'impositional' than oral requests for immediate money, which some persons might find threatening.
Procedural Posture:
- Plaintiffs sued the City of Springfield in federal district court, challenging the anti-panhandling ordinance.
- The district court ruled in favor of the City of Springfield, upholding the ordinance.
- Plaintiffs appealed the district court's decision to the United States Court of Appeals for the Seventh Circuit.
- The Seventh Circuit initially affirmed the district court's decision, finding the ordinance did not draw lines based on the content of anyone's speech (768 F.3d 713 (7th Cir.2014)).
- The Supreme Court decided Reed v. Gilbert, 135 S.Ct. 2218 (2015), which redefined what constitutes a content-based regulation.
- The Supreme Court subsequently remanded Thayer v. Worcester, a similar panhandling-ordinance decision on which the Seventh Circuit had relied, for further consideration in light of Reed.
- Plaintiffs filed a petition for rehearing with the Seventh Circuit.
- The Seventh Circuit requested and received supplemental memoranda from the parties discussing Reed.
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Issue:
Does Springfield's anti-panhandling ordinance, which prohibits oral requests for immediate donations but permits signs requesting money and oral requests for deferred donations, constitute a content-based regulation of speech under the First Amendment, thereby subjecting it to strict scrutiny?
Opinions:
Majority - Easterbrook
Yes, Springfield's anti-panhandling ordinance is a content-based regulation of speech because it regulates based on 'the topic discussed,' and is therefore subject to strict scrutiny. The court's previous decision had categorized the ordinance as subject-matter regulation, not content discrimination, believing it did not burden unpopular ideas or viewpoints. However, the Supreme Court's decision in Reed v. Gilbert clarified that any law applying to speech 'because of the topic discussed or the idea or message expressed' is content-based, regardless of the government's motive or lack of animus toward the ideas. Reed effectively abolished the distinction between content regulation and subject-matter regulation, meaning any law differentiating speech by its meaning now requires a compelling justification. Since Springfield's ordinance distinguishes between oral requests for immediate money and other forms of soliciting, it regulates based on topic, requiring a classification as content-based under Reed. Given the parties' agreement that the ordinance's validity hinges on this classification, and Springfield's failure to contend the ordinance is justified if deemed content discrimination, the ordinance fails.
Concurring - Manion
Yes, Springfield's anti-panhandling ordinance is a content-based regulation under the First Amendment, requiring strict scrutiny, due to the clarity provided by Reed v. Town of Gilbert. Justice Manion fully joins the majority but writes to emphasize the significance of Reed. He notes that Reed clarified First Amendment jurisprudence by holding that a speech regulation targeting specific subject matter is content-based even without viewpoint discrimination, resolving tension with Ward v. Rock Against Racism. Ward had focused on government disagreement with a message, leading some courts to consider non-viewpoint-based regulations as content-neutral. Reed eliminated this distinction, recognizing that 'topical censorship is still censorship.' This means regulations based on specific topics, like panhandling, must now be evaluated as content-based and subjected to strict scrutiny, a rigorous standard few regulations survive.
Analysis:
This case is a crucial post-Reed v. Gilbert application, significantly expanding the scope of what constitutes 'content-based' speech regulation under the First Amendment. It signals a broad shift, compelling courts to apply strict scrutiny to many more speech regulations previously categorized as content-neutral time, place, and manner restrictions. The ruling's elimination of any effective distinction between content and subject-matter regulation means that governments must now meet a higher constitutional bar when differentiating speech based on its topic or message, even if their motives are benign. This makes it substantially more difficult for municipalities to regulate public discourse by categorizing it by subject matter, increasing protection for various forms of expressive conduct.
