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Tuesday, August 11, 2015

7th Circuit Applies Reed v. Gilbert to Panhandling Ordinance

We previously reported on a 7th Circuit Court of Appeals case upholding Springfield's anti-panhandling ordinance here.  You may recall that the City of Springfield, Illinois had an ordinance that prohibits panhandling in its downtown historic district.  The ordinance defines panhandling as an oral request for an immediate donation of money. Individuals who were cited under this ordinance filed suit against the City, claiming that the ordinance violated their First Amendment rights. Last fall, the 7th Circuit ruled in favor of the City, finding the ordinance content-neutral and constitutional.  Norton v. Springfield (7th Cir. Sept. 25, 2014).

The plaintiffs filed a motion for a rehearing, but the 7th Circuit deferred ruling on that motion until after the U.S. Supreme Court decided Reed v. Gilbert (the sign case). Following the Supreme Court's decision in Reed striking down Gilbert's sign code as content-based discrimination, the 7th Circuit granted a rehearing in the panhandling case to apply the analysis from Reed v. Gilbert regarding content-based discrimination.  Norton v. Springfield (7th Cir. August 7, 2015).

The 7th Circuit first noted that the U.S. Supreme Court changed the way courts are to look at First Amendment discrimination when it wrote that "regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." Because Springfield's panhandling ordinance regulates particular topics (oral requests for the donation of money), the 7th Circuit found that Springfield's panhandling ordinance is a content-based regulation under the new test adopted by the Supreme Court in Reed.  The 7th Circuit noted that Reed "effectively abolishes any distinction between content regulation and subject-matter regulation, requiring the government to provide a compelling reason for why it regulates speech."  Because Springfield did not provide such a justification, the panhandling ordinance is unconstitutional.

So, what does this mean for local governments?  We had previously recommended that local governments review their existing sign codes to see whether they contain any of the content-based regulations struck down by the U.S. Supreme Court in Reed. Now, based on the 7th Circuit's ruling in Norton (and probably many other cases to follow), it seems as if Reed will have a much broader impact on government regulation than just sign codes. As the concurring opinion notes in Norton, Reed's content-based analysis could apply to a variety of local government ordinances, including regulations pertaining to religion or abortion, as well as any other activity that might implicate the First Amendment (adult businesses, solicitation). As a result, local governments need to be prepared to justify any regulation that implicates speech. That may be very difficult, however, as the 7th Circuit notes that few regulations will survive the strict scrutiny now required by the Supreme Court.

Post Authored by Julie Tappendorf 


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