by Gary Taylor
Don Norton, et al v. City of Springfield
Federal 7th Circuit Court of Appeals, August 7, 2015
Springfield, Illinois adopted an ordinance that prohibits panhandling in its downtown historic district, which encompasses less that two percent of the City’s area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state government buildings. The ordinance defines panhandling as an oral request for an immediate donation of money. Signs requesting money are allowed, as are oral pleas to send money later. The City views signs and requests for deferred donations as less impositional than oral requests for money immediately, which some people may find threatening.
The Plaintiffs contended that barring oral requests for money now but not regulating requests for money later is a form of content discrimination. The 7th Circuit initially sided with the City in 2014. It observed that “the [Supreme] Court has classified two kinds of regulations as content-based: One is regulation that restricts speech because of the ideas it conveys, the other is regulation that restricts speech because the government disapproves of its message.” The 7th Circuit concluded that the ordinance did not meet either test for content-based speech. It observed that the ordinance did not interfere with the marketplace for ideas, that it did not practice viewpoint discrimination, and that the distinctions that plaintiffs called “content discrimination” appeared to be an effort to make the ordinance less restrictive.
Plaintiffs requested reconsideration. The 7th Circuit agreed to reconsider, and deferred its decision until the Supreme Court’s decision in Reed v. Gilbert. In light of the Supreme Court’s interpretation of content-based regulation, the 7th Circuit reversed its previous decision. “The majority opinion [in Reed] effectively abolishes any distinction between content regulation and subject-matter regulation. Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification….[T]he parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination. Reed requires a positive answer.”
Justice Manion authored a concurring opinion to underscore the significance of Reed, and its interplay with the Supreme Court’s opinion in Ward v. Rock Against Racism. “Under [interpretations of Ward], if an ordinance was not viewpoint-based, then it was content-neutral. For example, a local government’s decision to eliminate religious speech or abortion-related speech was considered content-neutral because it was not viewpoint-based – as, for instance a regulation prohibiting ‘Christian speech’ or ‘pro-life speech’ was and remains….Reed saw what Ward missed – that topical censorship is still censorship….Few regulations will survive this rigorous standard”