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Tuesday, January 26, 2021

Content-Based Regulation of Solicitation in Streets Found Unconstitutional

Earlier this month, a federal district court judge issued a ruling that will likely be of interest to municipalities that regulate or restrict solicitation on streets within their jurisdiction. Dumiak v. Village of Downers Grove.

In 2019, after two individuals had been cited for soliciting money on Village streets, they filed a lawsuit against the Village of Downers Grove and various Village, State, and County officials to challenge the constitutionality of the ordinance that prohibited their activities. The Village had enacted an ordinance based on authorization in state statute, specifically 625 ILCS 5/11-1006. That statute prohibits persons from standing on a highway for the purpose of soliciting contributions unless the solicitation is within a municipality that has expressly authorized solicitation and the solicitor is registered with the Attorney General as a charitable organization. 

The Village subsequently repealed its ordinance and the parties entered into a settlement of the litigation, which was memorialized in the trial court ruling dated January 11, 2021. That ruling expressly concluded as follows:

The Court therefore concludes, as a matter of law, that 625 ILCS 5/11-1006(c) is a content-based restriction on the freedom of speech that is not justified by any compelling interest and that the provision violates the First Amendment and is unconstitutional on its face under clearly established law, specifically the controlling Supreme Court decision of Reed v. Gilbert, 576 U.S. 155 (2015), and the controlling Seventh Circuit decision of Norton v City of Springfield, 806 F.3d 411 (7th Cir. 2015).

Based on this ruling, municipalities may want to review their own solicitation ordinances for any necessary amendments, as well as discuss modifications to their current practices with regard to enforcing solicitation activities on streets within their municipal borders. This ruling does not mean that municipalities cannot regulate any solicitation activities on streets within their jurisdiction, such as enforcing content-neutral regulations that prohibit activities that impede the flow of traffic. However, the ruling does call into question  regulations that restrict First Amendment activities in a content-based manner that are not justified by any compelling interest. 


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