Don Norton v. City of Springfield

suрposedly support government cites Otterson, Don NORTON and Karen ability press to its claim all relate to the

its Plaintiffs-Appellants, party has question prevailing whether appeal. sufficient interest See v. Club, Chicago 86 F.3d EEOC SPRINGFIELD, ILLINOIS, CITY OF (7th Cir.1996); LaBuhn v. Bulkmatic al., Defendants-Appellees. et (7th Co., Transport Cir. No. 13-3581. 1988). is neither a win- against Appvion ner nor loser this con- Appeals, United States Court of action; nullity. tribution it is a We will Seventh Circuit. question Appvion’s leave the CERCLA Argued April 2014. liability for the enforcement action. Sept.

Decided 2014. X. Conclusion judg-

We Reverse the district court’s ability regard Appvion’s

ment with 107(a).

bring § suit under CERCLA We responsi- the decision to hold NCR

Vacate all response operable

ble for costs at 2 through

units 5 in contribution. We following

Affirm decisions: NCR

may proceed only under CERCLA 113(f);

§ that NCR is not as an hable

arranger; that Glatfelter’s insurance set- against

tlement offset be NCR’s share;

contribution that NCR can be re-

quired to contribute for natural resource

damages; that Glatfelter’s cоunterclaim Manion, Judge, dissenting Circuit filed discharges Portage based on the should opinion. dismissed;

be and that the defendants’ preempted.

state-law counterclaims are proceedings

This case is Remanded opinion.

consistent with this

714

Plaintiffs asked the district court to is- preliminary injunction, contending sue that the ordinance violates Constitu- Amendment, applied tion’s First to the parties Fourteenth. The by states judicial by agreeing simplified the task panhandling speech, that is a form of applies, which the First Amendment and if that it draws lines on the basis of speech’s content then it is unconstitutional. simplified litigation Defendants further of Mark Weinberg, Mark Law Office G. relying principle Younger on the Nicholas, Weinberg, Chicago, Adele D. G. Harris, 746, v. 27 IL, Plaintiffs-Appellants. for (1971), contending L.Ed.2d 669 and not Rahn, Trapp, Matthew Robert Steven C. proceed- that the outcome of the citation Counsel, Corporation Spring- Office of the ings through preclu- blocks this suit issue field, IL, Defendants-Appellees. (collateral estoppel) preclu- sion or claim (res judicata). sion EASTERBROOK, MANION, Before parties We need not decide whether the SYKES, Judges. and Circuit matters, right are about these none of EASTERBROOK, Judge. Circuit subject-matter jurisdiction— them affects though aspects parties’ agree some Springfield has an ordi holdings, assumptions, ment reflect the (§ Code) Municipal nance 131.06 Peterson, (7th v. 225 F.3d 899 Gresham prohibits panhandling that its “down Cir.2000), anti-panhan which held that an than town historic district” —less 2% the Indiana, dling Indianapolis, containing principal area but its (because constitutional did not reach entertainment, shopping, governmen parties present) question did not areas, including tal Statehouse whether that ordinance is content-based. many state-government buildings. The or plaintiffs’ The district court denied motion panhandling dinance as an defines oral preliminary injunction, ruling for a request for an immediate donation of mon gen ordinance as written and enforced allowed; ey. money Signs requesting are (that is, erally “on its face” rather than “as money so are pleas oral to send later. applied” plaintiffs) to these is content-neu Springfield evidently signs and re views tral. 2013 U.S. Dist. Lexis quests impo for deferred donations as less (C.D.Ill. 2013). Oct. sitional than oral im mediately, persons (especially appeals which some Other courts of have divided on night nearby) question or when no one else is whether rules similar may threatening. Springfield’s find Plaintiffs have re are content-based. Three violating “yes” ceived citations for this ordinance circuits have answered and held allege they panhan Vegas, will continue them invalid. ACLU v. Las (9th Cir.2006); dling liability; gives but fear this them F.3d 784 Clatterbuck v. (4th Charlottesville, standing to contest the ordinance’s consti 708 F.3d 549 Cir. (6th 2013); Schuette, B. validity. Anthony Speet tutional See Susan — Cir.2013). Driehaus, U.S.—, But List v. two circuits have concluded anti-panhandling L.Ed.2d 246 laws content- Potomac, neutral and valid. ISKCON that a state fair prohibit panhandling ‍‌‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌​‌‌‌‌‌‌‌‌​​‌‌‌​‌​​‌‌‌​​​​​‍Kennedy, Inc. v. 954-55 and other fundraising by anyone walking (D.C.Cir.1995); Worcester, Thayer v. grounds, limiting its solicitation to rented (1st Cir.2014) J.). (Souter, F.3d 60 Kokinda, booths. United States v. regula Each of these ordinances or (1990), holds that the Postal Service may others, tions is a little different from the forbid all fundraising on a leading sidewalk and from in Springfield’s —the post to a office. Society International Worcester, example, for “ag addresses for Consciousness, Lee, Krishna Inc. v. gressive” panhandling,* Michigan’s and 672, 2701, (the U.S. 112 S..Ct. 120 L.Ed.2d 541 subject Speet) statute all forbids (1992), airport holds that an “begging” they prohibit request authority may all —but money for prohibit or valuables to be handed over all receipt solicitation and of funds immediately. And the distinctions be within the terminal. Plaintiffs maintain “money later,” tween “money now” and irrelevant, that these decisions are because “money paid and between to me” and in part each rests on a conclusion that the else,” “money paid to someone are what public venue was not a traditional forum. plaintiffs say invalid; make the ordinances enough, True Supreme Court’s that, lawyer argument their stated at oral three decisions the had the if the ordinances barred all for proprietary benefit of its interest money, they good would not have a claim forum, public while streets traditionally under the First Amendment. In other open speech. But in each case the words, plaintiffs contend that regulation Court observed that still must effort to curtail the ordinance’s scope, by be reasonable. permitting requests See also Cornelius v. do not seem threatening, Legal is what makes unconstitu NAACP and Educational Defense Fund, Inc., tional. regulation speech 788, The rule that 807-13, 473 U.S. 105 S.Ct. tailоred, narrowly see, must be e.g., 3439, case, 87 L.Ed.2d 567 In each , — —, Coakley McCullen v. U.S. 134 the regulation Court concluded (2014), 189 L.Ed.2d 502 thus was reasonable. For example, Lee the destruction, engine becomes an observed: Court “face-to-face solicitation every effort to narrow a rule will distin presents appro- risks of duress that are an guish speech some from other and skillful, priate target regulation. The so, view, in plaintiffs’ doom it. unprincipled, solicitor target can vulnerable, most including accompa- those Supreme Court has dealt with three nying children or suffering physical those anti-panhandling regulations. laws or Hef- imрairment and Society easily v. International who cannot avoid Krishna fron Consciousness, Inc., 452 U.S. 101 the solicitation.” 505 U.S. at (1981), holds S.Ct. 2701. * bank, range potentially parking The ordinance "a covers an entrance or area of a machine, though conventionally aggressive public transporta- coercive automated teller behaviors, theater, including soliciting stop, pay phone, from someone tion outdoor waiting buy seating in line to tickets or enter a build- commercial area like a sidewalk dark, ing; soliciting request after calculated as 'the café." 755 F.3d at 64. A second money only “aggres- time from hour before sunset one-half to one- is thus one definition of sunrise’; continuing panhandling; half hour after to solicit sive” in all other situations cov- ordinance, person receipt negative from a after the aof ered Worcester's even one re- response; soliciting anyone quest within 20 feet is forbidden. Lee, Supreme Court writes that Justice Ken- When

In both Kokinda speech by require content regulating rules express the separately to view nedy wrote justification powerful the same sort of as appropriate was by viewpoint, a regulating speech rules limitation, time, inde- and manner place, practice only by a need as standard met venue’s “forum” status. pendent of the terrorists, see against serious as the battle 737-39, Kokinda, at 497 U.S. Project, Holder v. Humanitarian Law Lee, 703-09, 3115; 2705, 177 L.Ed.2d 355 the fifth Kennedy supplied 2701. Justice (2010), it not mean that all classifica- does disposition in Kokin- necessary vote (effectively) tion of forbidden. Kennedy’s vote although And Justice da. regularly distinguishes speech Government Lee, disposition in not essential to the was by subject-matter, and the Court does not Souter, for the First writing Justice Cir- express special concern. Thayer, cuit in concluded that Justice Ken- abridg- has never been deemed an “[I]t like- nedy’s analysis illustrates the Court’s speech press to ment of freedom of panhandling regulation of a ly disposition illegal merely make a course of conduct forum. public in ‍‌‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌​‌‌‌‌‌‌‌‌​​‌‌‌​‌​​‌‌‌​​​​​‍a traditional Justice in part because the conduct was initi- Lee; disagreed he with Souter dissented ated, evidenced, or carried out means (in Lee) Kennedy on the merits Justice written, language, spoken, either (in Thayer) that still concluded Justice printed.” Giboney Empire Storage v. & Kennedy’s likely carry day. is view Co., 490, 684, Ice 336 69 93 U.S. S.Ct. Kennedy Justice concluded Lee (1949). examples L.Ed. 834 Numerous airport an be treated the same as a should could be citеd of communications that city restricting panhan- street and that regulated offending without settings. dling permissible is both Amendment, exchange such First as permissible, he regulation What made securities, of information about SEC v. concluded, narrowly it was that had been Co., Sulphur Texas Gulf only it potential- tailored so that dealt with (2d Cir.1968), proxy corporate state- (or ly advantage-taking) threatening ments, Co., Mills v. Electric Auto-Lite (505 explained frontations. He U.S. 375, 616, 90 24 L.Ed.2d 396 U.S. S.Ct. omitted): 707, 2701, 112 citation “we S.Ct. (1970), exchange of price narrowly have held that to be tailored a among competi- information production regulation need not be the least restrictive tors, Lumber American Column & Co. achieving or least intrusive means States, 377, 42 v. United 257 U.S. reasonable, regulation end. The must be 114, (1921), employers’ 66 L.Ed. 284 substantially and must not burden more threats of retaliation for the labor activi- speech necessary. than Under this stan- employees, ties of NLRB v. Pack- Gissel dard the solicitation ban survives with Co., 575, 618, 1918, ing 395 U.S. 89 S.Ct. ease, only it solicitation prohibits (1969).... because Each 23 L.Ed.2d 547 of these receipt.” for immediate illustrates that the does examples State words, regulation what saved the Jus- power regulate not lose its commer- Kennedy’s eyes exactly tice is what con- activity pub- deemed harmful to thе cial plaintiffs’: it in the limit to speech component demns solicita- is a lic whenever receipt, tion for immediate which Justice activity. [Virginia Neither Board Kennedy Pharmacy Virginia saw as the soul of v. reasonableness Citizens Con- Council, Inc., plaintiffs pernicious as content dis- sumer 425 U.S. (1976)] 1817, L.Ed.2d 346 nor crimination. Arizona, I’m “give v. Bar 483 U.S. homeless” or me money State because [Bates L.Ed.2d 810 support governor” permissible, is (1977)] purported to cast doubt on the “give money while me my daugh- because of these kinds of commer- permissibility “give money ter is sick” or me because the regulation. cial inequitable” distribution of income is Association, forbidden. State Bar Ohralik Ohio 1912, 56 L.Ed.2d The ordinance is indifferent to the solici- (1978). This means the “content- seeking money, tor’s stated reason for jus- require special based” restrictions that requester whether the states reason at depend tification are a subset of those that all. if panhandler And uses a sign, subject-matter speech. on the of the threatening which is less than oral de- The Court has classified two kinds of (the requester mands need not approach regulations regu as content-based. One is target), there is no restriction. lation that restricts Springfield has not meddled with mar- See, conveys. e.g., Turner ideas Broad Hеre, ketplace of ideas. inas McCullen v. FCC, casting System, Inc. v. 2530-32, Coakley, 134 S.Ct. at what acti- prohibition vates the is where a person The other is that re (in says something the “downtown historic stricts because the dis district”) position rather than what a per- See, approves message. e.g., of its Brown political son takes on a literary ques- Association, v. Entertainment Merchants — tion. Petitioners are free to ask money for U.S.—, 2729, 180 L.Ed.2d anywhere in Springfield outside the (2011); Stevens, 708 United States v. 559 “downtown historic district”. The Court 460, 1577, U.S. added in that exemp- McCullen selective (2010); Racism, Against v. Rock Ward 491 from an tions otherwise-neutral rule do not U.S. 105 L.Ed.2d (1989); make that rulе It content-based. follows Project, 661 Humanitarian Law 27-28, Springfield’s exemption signs at that 130 S.Ct. 2705. See does Kagan, Speech, content-based, also Elena Private Public not make its ordinance Purpose: The Role Governmental Mo plaintiffs argue do not otherwise. of Doctrine, tive in First Amendment 63 U. disagreement within the in Court (1996); Geoffrey Chi. L.Rev. 443-56 distinguish McCullen about how to a con- Stone, Restrictions, R. Content-Neutral tent-based from a content-neutral law (1987); Geoffrey U. Chi. L.Rev. 54-57 (four thought Justices that law to have Stone, Regulation R. Content and the content-based) been the conflict —and Amendment, Mary First 25 Wm. & L.Rev. among panhandling the circuits about оrdi- 189, 233-51 It is hard to see nances—shows that it is difficult to be anti-panhandling entailing ordinance as ei confident about how the line between sub- ther kind of discrimination. “Give me allowed) ject-matter (usually and content- money right express now” does not an idea forbidden) (usually distinctions is arts, message politics, about the profess certainty drawn. do not about We topic on government may which the our conclusion the ordinance is con- expression seek to throttle in order to tent-neutral. But this was Justice Kenne- protect speakers. itself or a favored set of dy’s Springfield’s regulate understanding Lee. Evaluated ordinance does not used; time, speech by say, place, the standard for and manner pitch does not example, “give money Springfield’s me because restrictions ordinance is with- applied to all forms of so- govern- and local those decisions of state power in the Lee, at licitation. See 505 U.S. ment. 2701; Kokinda, S.Ct. Affirmed. 643-44, 3115; Heffron, 452 U.S. at case, however, MANION, 2559. In our Judge, dissenting. Circuit does not ban all solicita- ordinance panhandler holds that a Today the court tion, but, as discussed in more detail be- in the a passerby who asks low, distinguishes among types various of City of historic district downtown solicitation. may face a crimе and Springfield commits simple for this re- prosecution criminal Likewise, upheld we a solicitation ban is alien to our First conclusion quest. This (7th Peterson, Gresham v. I Accordingly, Amendment jurisprudence. Cir.2000). But presented Gresham was the court join opinion do in a materially posture, us different where panhandling ordi- City Springfield’s parties agreed regulations nance is a content-based content-neutral, and so we did not were scrutiny. By subject to strict speech, Indianapolis decide whether the is content-neu- cluding that the ordinance justified could be without reference to the tral, Supreme misapplies the court regulated speech. content of the Id. at regulation jurispru- content-based Court’s question 906. So we must now answer the respectfully dis- Consequently, dence. that has remained unanswered after the sent. Supreme Court’s decisions and Gresham— specifically, whether such an ordinance is 131.06(e) City Spring-

Section content-based or content-neutral. panhandling bans Municipal field Code (the Springfield’s “City”) among The court asserts ‍‌‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌​‌‌‌‌‌‌‌‌​​‌‌‌​‌​​‌‌‌​​​​​‍a division five historic district.” The ordi- “downtown regarding anti-panhan- Circuits whether panhandling, pertinent nance defines dling ordinances like the one before us are in part, “[a]ny person as solicitation madе content-based content-neutral. It requests ... in an immedi- person which Fourth, Sixth, that the Ninth states and money gratuity.” ate donation of or other anti-panhan- have struck Circuits down 131.06(a)(1).1 explic- § But the ordinance content-based, dling ordinances as while itly panhan- the definition of exempts from of First Circuit District Columbia dling passive display sign of a upheld anti-panhandling have or- Circuits a “vocal making invites donations without dinances as content-neutral. Faced with 131.06(b). § request.” what it understands to be fork road, Supreme upheld path has solicita- the court takes the less-trav- The Court times, i.e., eled, joins tion bans three Int’l Soc. the First and District оf Lee, I agree Krishna Consciousness v. 505 U.S. Columbia Circuits. with the 120 L.Ed.2d 541 court’s assertion that three Circuits have S.Ct. Kokinda, (1992); anti-panhandling struck down ordinances United States (1990) 720,110 content-based, disagree 111 L.Ed.2d 571 as but I with the court’s conclusion that the First (plurality); and v. Int’l Soc. Circuit’s Heffron Consciousness, A 101 decision conflicts with them. careful Krishna But the look at each of the five cases is therefore implicated necessary. governmental "gratuity.” 1. The ordinance does not define

A. All three Circuits to address similar or other of thing value from per- another

regulations son, of have conclud- regardless of purpose the solicitor’s they ed that аre content-based. intended use or other thing Clatterbuck, of In value.” Id. the district Three Circuit decisions have held that court concluded that the ordinance was statutory prohibitions against immediate content-neutral it because not “d[id] distin- monetary donations are guish between favored and disfavored so- tent-based. Am. Civil Liberties Union licitation,” but rather “applie[d] to all Vegas, Nev. v. Las of solicitations, forms of regardless of the (9th Cir.2006) (“ACLU”), the Ninth Cir- purpose solicitor’s or the content of the prohib- cuit struck down an ordinance that speech.” solicitor’s Id. at 556. The panhandling ited on a five-block stretch of Fourth Circuit held thаt the district public holding sidewalks after that it awas court’s conclusion was incorrect and re- content-based restriction in violation of the versed. Id. The court stated: Amendment, First and observed that “[a]l- though courts have held that bans on the plainly Ordinance distinguishes be- content-neutral, act solicitation are we tween types solicitations on its face. have holding not found case that a Whether the Ordinance is violated turns regulation that separates out words so- solely on the nature content of the licitation for different treatment is con- speech: solicitor’s it prohibits solicita- tent-neutral.” Id. at 794 (еmphasis tions that request immediate donations original). value, things while allowing other solicitations, types of such as those that Likewise, Schuette, in Speet v. request donations, future or those that (6th Cir.2013), the Sixth Circuit struck request things which have no “val- Michigan down a statute that criminalized word, signature ue”—a or kind perhaps. begging public place. in a Id. at 870. There, the court held that “Michigan’s fact, Id. In the rationale adopted by the anti-begging statute cannot withstand fa- precisely district court Clatterbuck is cial attack prohibits because it a substan- argument the district court solicitation, tial amount of activity adopted in this casе—that the ordinance protects, First Amendment but allows was content-neutral “d[id] other solicitation based on content.” Id. distinguish between favored disfa- solicitation,” vored “applie[d] but rather to

Finally, very in a case similar to the one solicitations, all regardless forms of us, in City before Clatterbuck v. Char- of purpose solicitor’s or the content of the (4th lottesville, Cir.2013), 708 F.3d 549 the But, speech.” solicitor’s the Fourth Cir- challenge Fourth Circuit confronted a to a expressly rejected argument cuit the when city ordinance that made it “unlawful for it held that the ordinance was content- any person money things to solicit or other it distinguish did not be- of value or to solicit the goods sаle of or tween favored and disfavored content of fifty services on the Downtown Mall within (50) (in direction) speech. the solicitor’s Id. Like Clatter- any feet or 2nd Street buck, City’s here the East, permits ordinance West and 4th Street when those open money, streets are some verbal it to vehicular traffic.” Id. “ case, specifically prohibits request at 552. Like our ‘solicit’ to verbal mean[t] request an money money panhandler’s immediate donation of for a personal use. tion,” “in a manner soliciting not in or someone decision is

B. The First Circuit’s likely person cause a reasonable to Fourth, Sixth, ... to and the confliсt with bodily harm.” fear immediate Worcester Circuits, but does conflict Ninth 16(c) (em- Ordinances, 9, §§ ch. Revised Cir- the District of Columbia with 16(a)(3)(H).2 added), Importantly, phasis cuit. text of the ordinance allows plain the decision does not The First Circuit’s money, one verbal solicitation for least that have the three Circuits conflict with after a prohibits only aggressive follow-up anti-panhandling ordinances held that negative response.3 Because the ordi- In speech. of regulation content-based Thayer nance in allows at least one verbal Worcester, City Thayer of money, criminal in solicitation for what is (1st Cir.2014), addressed the First Circuit Springfield legal the of is the First that made it “unlawful for an ordinance Thus, Thayer compound does not Circuit. beg, panhandle or solicit any person to split with the District Columbia Circuit’s aggressive in an manner.” person dis- the three Circuit court cases have Ordinances, ch. Worcester Revised entirely cussed—rather consistent 16(d). “begging” § The ordinance defined with all of them.4 “asking money or “panhandling” or as value, objects the intention that the with C. The District of Columbia Circuit’s at that money object be transferred or decision should not be followed. 16(c). time, §at place.” and at that Id. Finally, I the District ‍‌‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌​‌‌‌‌‌‌‌‌​​‌‌‌​‌​​‌‌‌​​​​​‍of address Colum- Additionally, defined “soli- the ordinance bia Circuit’s decision ISKCON Poto- written, “using spoken, as the cit[ation]” mac, Kennedy, Inc. v. word, bodily gestures, signs, or printed (D.C.Cir.1995), only the Circuit court deci- of communication the other means with sion of the five discussed that does not obtaining an dona- purpose of immediate ISKCON, panhandler. involve a thing tion of or other value “as-applied” challenge court considered an panhandling also begging same as “[sjoliciting regulation prohibited to a immediately exchange include the offer demanding gifts, money, goods or ser- any goods or services.” Id. sell and/or Capital Region vices [in National concluded thаt the ordi- The First Circuit parks].” Although regula- at 954. Id. Thayer, content-neutral. nance was broadly, accepted the court applied tion F.3d at 71. interpretation of “solici- the Park Service’s Thayer designed The ordinance was “only in-person request tation” to mean “aggressive” ill effects of payment.” to combat the for immediate Id. at 954-55. prohibits “continuing rejected plaintiffs’ argument solicitation The court person has person regulation solicit from a that the was content-based. Id. after “in- negative response prohibition to such solicita- The court held that a on given a " case, plaintiffs brought оnly ... In our no chal- ered 'whether 2. pro- lenge part to the adopted speech because of [the] ” hibiting aggressive solicitation. message conveys,’ disagreement with the it ultimately upheld the ordinance. 755 "Aggressive” describes the manner of con- 3. Ward, (quoting F.3d at 67 491 U.S. at obviously duct-it does not refer to "content.” 2746). Thayer simply did not So present question us in the Moreover, address the before Thayer 4. did not address whether appeal. neglected to discuss the It also facially content-based but the statute was Fourth, Sixth, Ninth Circuits’ decisions. skipped prong entirely or over that and consid- payment regulation require[s] immеdiate A does so “if it solicitation for ‘en person forcement authorities’ to not the content ‘examine the con regulates the manner but Lee, tent of the message conveyed is (citing at expression.” Id. U.S. determine whether’ a violation has oc J., 704-07, (Kennedy, 112 S.Ct. 2701 curred.” Id. (quoting League F.C.C. v. curring)). California, Women Voters reasoning The of ISKCON is unsound. (1984)). public first in First Amendment step is, a regulation That does violation of the analysis regulation forum is to examine say[?]” turn on “what [the defendants] Id. it to determine whether discriminates on (quoting Holder v. Humanitarian Law content, viewpoint, the basis of or not at 1, 27, Project, 561 U.S. regulation If a court concludes the is all. (2010)). L.Ed.2d 355 content-neutral, it then asks “whether the To question implicitly posed answer the requirements ‘narrowly tailored to cases, by these First Amendment we must interest, significant governmental serve a temporarily into the step shoes ... open ample leave alternative chan- City’s police enforcement authorities. A [regulated] nels for communication of the seeking officer to enforce the ordi- ISKCON, at information.’” nance must listen to speaker what the is omitted). (citations But skipped ISKCON saying in order determine whether the step, the first and started with the second. speaker has violated the оrdinance. In- interpreted regulation, as-applied, It deed, the officer must determine on which and held was content-neutral be- side of at least three different verbal dis- plaintiffs cause the could make their re- speech evaluating tinctions the falls when quest using for donations leaflets with do- whether ordinance has been violated. In nation instructions. Id. at 956. First, the officer must determine whether words, the court that because determined speech request is a or other regulation open ample left alternative violation) gratuity merely a (potentially communication, channels for it was con- time, signature, a request the listener’s applied tent-neutral. Id. It then the re- (not violation). Second, a or labor maining parts of the second half of the officer must determine whether the analysis regulation. to strike down the Id. a for an immediate transfer of request is approach put This the cart before the violation) merely a money (potentially a Ultimately, recognized court horse. money at a request for the transfer of significant, interest that the Service’s was (not violation). Third, the future date a regula- it nevertheless struck down the but officer must determine whether the narrowly-tailored. tion because it was not (po- request is a for a charitable donation short, Id. ISKCON should not be relied violation) merely tentially request upon because it assumed was at is- what (not a viola- for a commercial transaction is, regulation sue—that that the was con- tion). cannot answer The officer tent-neutral. listening to and questions these without than compounding Rather the Circuit speaker saying. understanding what the split, Supreme a look at the Court’s latest precisely That is the sort of situation us that a First Amendment ease reminds involves a content- Supreme Court said regulation is content-based if it draws regulation. Snyder, See (noting “content-based distinсtions on its face.” that a would be — —, “standing if at the Coakley, speakers 134 content-based McCullen stood,” very spot plaintiffs] where [the 189 L.Ed.2d always easily separated be from vocal cannot making slightly different liability”); event, subjected money”). any to In the not their need for [be] “would Network, Discovery if an not Cincinnati court concludes that ordinance is Inc., 410, 429, 113 S.Ct. 507 U.S. viewpoint-based, then it must be content- (1993) that, (holding L.Ed.2d 99 a By logic, neutral. Id. this content-based any particu- of “whether the determination that challenge to an ordinance is not view- within the ban [was] lar newsrack [fell] by Hayden ex point-based “loses default.” publica- the сontent of the determined Sck, Greensburg Cmty. AH. v. rel. newsrack[,]” resting inside that the tion (7th Cir.2014) (Manion, F.3d 583-84 content-based); see also regulation was J., dissenting concurring part and Project, 561 Holder v. Humanitarian Law I to part). disagree. attempt its deter- 1, 27, 2705, 177 L.Ed.2d 355 mine whether the ordinance is content- (2010) “regulates (holding that a law based, the or- the court examines whether if speech on the of content” deter- basis strips viewpoint dinance from the mar- mining whether individuals have violated That is not the ketplace of ideas. test they say”). “depends the law on what determining whether an is a ordinance That the officer must listen to and under- speeсh. content-based the if the ordi- speech stand determine progeny if implicitly Even Ward and its that nance has been violated means suggest legal some distinction between content-based, ordinance is unlike those permissible speaker restrictions on what a imposed merely which can be laws says speaker’s message, City’s and the volume, location, accom- on the or conduct ordinance is still content-based because panying speech. advantages speech commercial over chari- says The court that it does not necessar- speech. City’s facially table ordinance ily targets ordinance matter prohibits vocally someone from communi- speakers they say, long based on what so “I cating message, money,” want while as the does not “restrict[ ] allowing identically an speaker situated speech conveys” because of the ideas it message money, communicate the “I want “disapproves message.” because it of its give you something and will of value in 717; Racism, atOp. Against Ward v. Rock Thus, return.” ordinance leaves 781, 791, 491 U.S. speech comparatively commercial unregu- logic, L.Ed.2d 661 On this “ lated, prohibits type of vocal speech ‘[g]ive court concludes the statement traditionally enjoyed greater that has right express me now’ does is, protections speech stitutional soli- arts, message politics, idea or about —that citing activity. Riley v. Nat’l charitable topic on which the N.C., Inc., Fed’n the Blind may expression seek to throttle order to protect speakers.” itself or a favored set of (1988) (“[T]he solicitation of charitable con- However, Op. at 717. our earlier decision protected speech”). Although tributions is disputes Gresham this conclusion. Gresham, the court observes commercial (“Beggars 225 F.3d at 904 subjected is often to content-based restric- important political times communicate tions, Op. at it fails to address the messages in appeals or social their content-based distinction the ordinance money, explaining their conditions related status, homelessness, unemploy- draws between commercial to veteran However, disability, speech. ment and to name a few. Like charitable the two Cir- charities, organized messages previously their cuits that have considered simi- if it distinguish that between interest chooses the least restrictive regulations lar interest”). speech and charitable means to further the commercial articulated they were content- concluded that both reasons, I foregoing For the would re- 875; ACLU, 726 F.3d at Speet, based. See verse the district court’s denying order F.3d at 794.5 plaintiffs’ preliminary injunc- motion for a City’s ordinance is content- Because tion and remand with instructions to enter based, may only the ordinance if uphold we preliminary injunction enjoining a the en- strict-scrutiny it satisfies review. United 131.06(a)(1). § City forcement of ordinance Inc., 529 Playboy Grp., Entm’t States Accordingly, respectfully dissent. 803, 813, 146 L.Ed.2d (2000); Entm’t Ass’n v. Bla- Software (7th Cir.2006). gojevich, 469 F.3d speech, restricts

“When Government prov- bears the burden of Government

ing constitutionality of its actions.”

Playboy, 529 U.S. at 120 S.Ct. 1878. City argument

But here the offers no satisfy hefty

the ordinance can bur- City,

den. Horina v. Granite Cf. (7th Cir.2008) (failure 624, 633-34 to assert necessarily government

a interest fails to interest). in-

prove a And

deed, City all but concedes that satisfy demanding

cannot this standard. City Br. n. 1.

See prohibiting vocal

requests for immediate donations of throughout

or other at all gratuity times

the downtown historic district is content- City regulation. ‍‌‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌​‌‌‌‌‌‌‌‌​​‌‌‌​‌​​‌‌‌​​​​​‍Because the has alleged that the ordinance’s method of

restricting speech is the least restrictive compelling government

means to further a

interest, has failed to demonstrate scrutiny.

that the ordinance satisfies strict FCC,

Sable Commc’ns Cal. v.

(1989) (“The regulate Government ... constitutionally protected

the content of promote compelling order to First, Fourth, requests donations and for immedi- 5. The and District of Columbia mediate prohib- Clatterbuck, transactions); Circuits’ decisions involved laws that ate commercial in-person ited both solicitations for charitable 552; ISKCON, 708 F.3d at 61 F.3d at 953-54 in-person donations and solicitations for com- regulation prohibited (noting park mercial transactions. See Worcester Revised contributions both solicitation for charitable Ordinances, (defining § ch. "solicit” and sales). and commercial im- "solicitation” to include both

Case Details

Case Name: Don Norton v. City of Springfield

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 25, 2014

Citation: 768 F.3d 713

Docket Number: 13-3581

Court Abbreviation: 7th Cir.