Ninth Circuit Upholds Oakland’s Collection Bin Restriction as Content Neutral
The Ninth Circuit Court of Appeals recently
addressed the issue of whether the activity associated with donation collection
bins would constitute "protected speech" under the First Amendment. The Court of Appeals concluded that Oakland’s
ordinance regulating collection bins was content-neutral and passed
the constitutional muster. Recycle for Change v. City of Oakland, No. 16-15295, 2017 U.S. App. LEXIS 8211 (9th Cir. May 9, 2017).
In October 2015, Oakland enacted an ordinance that
required any property owner with a collection bin on its property to obtain an
annual permit. The Ordinance also required the property owner to abide by a
mandatory 1000 foot gap between collection bins.
Despite the Ordinance’s
justification of enactment for health and safety reason, Recycle for Change, a
non-profit organization, challenged it for violation of its First and
Fourteenth Amendment under the United States Constitution. RFC sought a
preliminary injunction to prohibit the Ordinance’s enforcement, which was
denied in the lower court. The organization appealed on their First Amendment
claim only, stating that the Ordinance was content-based because it required
the enforcing officer to examine the bin’s message and determine whether it was
a charitable bin. The Ninth Circuit affirmed the District Court’s decision, and
stated that the Ordinance passed the intermediate scrutiny test and was determined
content neutral on its face.
In coming to its decision, the Ninth Circuit held that assuming that unattended donation
collection boxes constituted protected speech or expressive
conduct—an issue the Court did not decide—RFC was
unlikely to succeed on the merits of its First Amendment
claim. The Court 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 RFC's message of charitable solicitation
or out of any disagreement with that message, the Ordinance
was content neutral. Applying intermediate scrutiny, the
Court 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.
Post Authored by Katherine Takiguchi & Julie Tappendorf, Ancel Glink
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