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Tuesday, May 30, 2017

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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