In a decision that should be of interest to many of our readers, the Sixth Circuit has affirmed a federal district court’s ruling that an ordinance in the City of St. Johns, Michigan (City) prohibiting the use of charitable donation bins likely violates the First Amendment to the U.S. Constitution. A summary Planet Aid v. City of St. Johns, Michigan (6th Cir. 2015) follows below.
Planet Aid’s mission it to “work to strengthen and organize communities, reduce poverty and promote small enterprise development, support sustainable local food production, improve access to training and quality education, and increase health awareness and encourage healthy lifestyles.” Planet Aid seeks to advance its mission by soliciting donations of clothing and shoes through unattended, outdoor donation bins. It places the donation bins on the property of private businesses that permit it to do so. The locations of the donation bins are meant to be “easily visible and accessible by individuals looking to deposit donations in the bins.” Planet Aid’s representatives typically visit each of the donation bins on a weekly basis to collect donated items and avoid bin overflow or goods accumulating outside of the bins. The donations it collects from the bins are distributed to organizations in other countries.
In January 2013, the City sent a letter to Planet Aid claiming that the “clothing donation containers have been found to create a nuisance as people leave boxes and other refuse around the containers,” and directed Planet Aid to remove the bins. The City later removed the donation bins after Planet Aid failed to do so. A year later, the City Council passed Ordinance #618 (Ordinance) to regulate charitable donation bins. Under the Ordinance, a “donation box” is defined as “[a]n outdoor, unattended receptacle designed with a door, slot, or other opening that is intended to accept donated goods or items.” While the City allowed existing donation bins to be “grandfathered,” the Ordinance prohibited all other donation boxes: “No person, business or other entity shall place, use or allow the installation of a donation box within the City of St. Johns.”
Planet Aid sued in February 2014 in federal court, arguing in part that its speech concerning charitable giving is protected by the First Amendment to the U.S. Constitution and that the Ordinance is a content-based restriction subject to strict scrutiny. The federal court granted Planet Aid’s motion for a preliminary injunction, finding that Planet Aid was likely to succeed on the merits of its claim since operation of donation bins to solicit and collect charitable donations is protected speech and the Ordinance was subject to strict scrutiny: “Plaintiff, in arguing that the ordinance fails strict scrutiny because it implements an overly broad, prophylactic ban on all bins so the City can avoid dealing with hypothetical nuisances or other issues that may arise with certain bins in the future, has borne its burden of proving a substantial likelihood of succeeding on the merits of its free speech claim.”
The Sixth Circuit affirmed the granting of the preliminary injunction. Relying on long-established Supreme Court precedent, the Sixth Circuit found that solicitation is a form of protected speech under the First Amendment:
A charitable donation bin can – and does – “speak” … A passer-by who sees a donation bin may be motivated by it to research the charity to decide if he wants to donate – in so doing, the passer-by will gain new information about the social problem the charity seeks to remedy. Indeed, the donation bin may ultimately motivate citizens to donate clothing or shoes even if they had not previously considered doing so. The speech may not be unidirectional, either – a citizen faced with a choice among several bins from different charities may be inspired to learn more about each charity’s mission in deciding which charity is consistent with his values, thus influencing his donation decision. In this way, donation bins in many respects mirror the passive speaker on the side of the road, holding a sign drawing attention to his cause.
Next, the Sixth Circuit determined that the Ordinance imposes a content-based restriction on speech and therefore strict scrutiny applies. The Ordinance is content-based because it “does not ban or regulate all unattended, outdoor receptacles. It bans only those unattended, outdoor receptacles with an expressive message on a particular topic – charitable solicitation and giving.”
Finally, the Sixth Circuit concluded that the Ordinance failed to survive strict scrutiny review. For the Ordinance to pass constitutional muster, it must be narrowly tailored to promote a compelling government interest. Although the Sixth Circuit assumed – without deciding – that the City’s stated interests in preventing blight and aesthetics were compelling, it found that the Ordinance was not narrowly tailored. The Ordinance “preemptively and prophylactically prevents all charities from operating outdoor, unattended donation bins within the City in the interest of aesthetics and preventing blight. This implies, without any evidence, that charities would be negligent in failing to conduct timely pickups of donated goods, in maintaining the appearance of the bins, etc. Further, it assumes that lesser, content-neutral restrictions such as requiring weekly or bi-weekly pickups or inspections of all outdoor receptacles would be ineffective.”