Crivello Carlson, S.C.
Author: Crivello Carlson
Recently, the Seventh Circuit issued a decision about regulation of First Amendment rights in which it included what could be read as a disclaimer about the holding it reached: “We do not profess certainty about our conclusions.” See Norton v. City of Springfield, Ill., 13-3581, 2014 WL 4756402 (7th Cir. Sept. 25, 2014). It held that a panhandling ordinance was content-neutral and therefore the city’s prohibition against certain kinds of panhandling was constitutional.
Like many cities, Springfield Illinois has an ordinance that prohibits panhandling in its “downtown historic district.” That district comprises less than 2% of the City’s total area but contains “its principal shopping, entertainment, and governmental areas, including the Statehouse and many state-government buildings.” The ordinance only prohibits “oral requests for an immediate donation of money.” Signs requesting money and verbal requests that money be sent later are both acceptable.
Springfield evidently views signs and requests for deferred donations as less impositional than oral requests for money immediately, which some persons (especially at night or when no one else is nearby) may find threatening.
P. 2. There are two kinds of regulations that are content-based and therefore invalid infringements of First Amendment rights: regulation that restricts speech because of the ideas it conveys, and regulation that restricts speech because the government disapproves of its message. The court recognized the split amongst circuits as to whether similar ordinances were content-based and therefore unconstitutional. The Fourth, Sixth, and Ninth Circuits have held similar ordinances invalid, while the First Circuit and the District of Columbia held that similar ordinances were content-neutral and therefore valid. The court also examined Supreme Court precedent that, while not directly analogous, consistently recognized that the regulation in question must be “reasonable.”
For example, in Lee the [Supreme] Court observed: “face-to-face solicitation presents risks of duress that are an appropriate target of regulation. The skillful, and unprincipled, solicitor can target the most vulnerable, including those accompanying children or those suffering physical impairment and who cannot easily avoid the solicitation.
P. 5, quoting International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 684, 112 S.Ct. 2701 (1992).
Ultimately, the Seventh Circuit sided with those circuits that have interpreted similar ordinances as reasonable, content-neutral regulations that do not violate the right of free speech.
It is hard to see an anti-panhandling ordinance as entailing either kind of discrimination. “Give me money right now” does not express an idea or message about politics, the arts, or any other topic on which the government may seek to throttle expression in order to protect itself or a favored set of speakers. Springfield’s ordinance does not regulate speech by the pitch used; it does not say, for example, that “give me money because I’m homeless” or “give me money because I support the governor” is permissible, while “give me money because my daughter is sick” or “give me money because the distribution of income is inequitable” is forbidden.
p. 7. The ordinance made no distinction for the reason behind the solicitation, and people are free to make requests for immediate donations in the other 98% of the city. The regulation is based on “where a person says something rather than what position a person takes.” p. 8 (emphasis in the original).