Recycle for Change v. City of Oakland
856 F.3d 666
9th Cir.2017Background
- Recycle for Change (RFC), a nonprofit that operates unattended donation collection boxes (UDCBs) on private property in Oakland, challenged Oakland Ordinance No. 13335 C.M.S., which established a licensing and regulation scheme for UDCBs.
- The Ordinance requires annual permits, application and renewal fees, $1,000,000 liability insurance, limits on placement and size, maintenance requirements, and a 1,000-foot spacing rule between boxes.
- RFC sued alleging the Ordinance violates the First Amendment (and equal protection); it sought a preliminary injunction to enjoin enforcement.
- The district court denied the preliminary injunction, finding RFC unlikely to succeed on the First Amendment claim because the Ordinance is content neutral and survives intermediate scrutiny.
- On appeal, the Ninth Circuit assumed (without deciding) that UDCBs implicate protected speech/expressive conduct but affirmed the denial, holding the Ordinance content neutral and valid under intermediate scrutiny (O’Brien).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Ordinance implicates First Amendment protection | UDCBs convey charitable solicitation and thus implicate protected speech/expressive conduct | City did not dispute for purposes of appeal; court assumed protected status without deciding | Court assumed UDCBs implicated protected expression but did not decide the pure speech vs. expressive conduct question |
| Whether the Ordinance is content-based | RFC: enforcement requires reading box messages to see if they solicit donations, so it targets charitable solicitation (content) | Oakland: Ordinance applies to any unattended container collecting items for distribution/resale/recycling, regardless of charitable or commercial purpose | Court: Ordinance is content neutral on its face and was not enacted due to disagreement with charitable messages |
| If content neutral, whether it survives constitutional scrutiny | RFC: location, fee and licensing burdens substantially limit its expressive conduct and are not narrowly tailored | Oakland: regulations address blight, illegal dumping, safety, and are within governmental power and unrelated to suppressing speech; requirements are narrowly tailored and leave alternatives | Court: Under O’Brien/intermediate scrutiny, Ordinance furthers important interests unrelated to expression, is narrowly tailored, and leaves alternative avenues; survives scrutiny |
| Entitlement to preliminary injunction (irreparable harm) | RFC: loss of First Amendment freedoms and harms to its operations constitute irreparable harm | Oakland: RFC unlikely to succeed on merits, so irreparable-harm showing fails | Court: Because RFC unlikely to succeed on First Amendment claim, injunction not warranted; court did not reach irreparable-harm merits |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based restrictions trigger strict scrutiny)
- O’Brien, 391 U.S. 367 (1968) (intermediate-scrutiny test for regulation of expressive conduct)
- Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) (charitable solicitation is protected speech)
- Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (regulation can be content neutral though it affects expressive choices)
- United States v. Eichman, 496 U.S. 310 (1990) (government may not suppress expression based on communicative impact)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (preliminary injunction standard)
- United States v. Swisher, 811 F.3d 299 (9th Cir. 2016) (discussing content-neutral/content-based distinction for expressive conduct)
- Planet Aid, Inc. v. City of St. Johns, 782 F.3d 318 (6th Cir. 2015) (held a UDCB ordinance content based where it targeted receptacles soliciting charitable donations)