*1 (No. 62096. ILLINOIS, Appel-
THE OF THE STATE OF PEOPLE TOSCH, lant, v. Appellee. SUSAN Opinion 1986. December filed *2 CLARK, C.J., dissenting. General, of Springfield, Attorney F. Hartigan,
Neil of Chicago State’s Attorney, M. Daley, and Richard General, of Chi Rotert, Attorney L. Assistant (Mark Daniel Thomas Gainer and S. V. Cherry, and Joan cago, counsel), Carter, Attorneys, Assistant State’s R. the People. Defender, Chicago Public
James J. Doherty, White, A. Assistant Pub- and Deborah P. Alwin (Ronald Defenders, counsel), for appellee. lic opinion delivered GOLDENHERSH
JUSTICE the court:
Defendant, Tosch, charged by complaint Susan automobiles stopping in the with standing in viola a ride or business soliciting for the purpose *3 Code (Ill. the Illinois Vehicle 11—1006 of tion of section The circuit 95V2, 1985, 1006). ch. par. Rev. Stat. 11— oral of defendant’s allowance County, upon court of Cook 1006(a) held sections charge, to dismiss the motion 11— Rev. Code Stat. (Ill. the Illinois Vehicle and of (b) unconstitutional, and seq.) 1—100 et 951/2, ch. par. 603). Ill. 2d R. (87 People appealed “committed that defendant charged complaint The RIDES OR SOLICITING of PEDESTRIAN the offense ROADWAY DID IN THE in that SHE STAND BUSINESS OF SOLICITING THE PURPOSE STOP AUTOS FOR AND in- report The arrest ***.” police A RIDE OR BUSINESS into when custody taken dicates that defendant in the roadway her standing officer “observed arresting en- subjects males containing vehicles stopping [sic] ar- arrestee observed After them in conversation. gaging further down moved a block she officers resting way. rides on public to solicit continuing street,” Section 11—1006 provides, pertinent part:
“(a) No shall stand in person for the pur- pose soliciting a ride from the driver of any vehicle.
(b) No person shall stand on a for the highway pur- pose soliciting or employment business from the occu- pant any vehicle.
(c) person No shall highway stand on a pur- pose of soliciting contributions from the occupant any except vehicle within a municipality when expressly per- mitted by municipal ordinance. Solicitation on highways within this State shall be allowed at only intersections where all traffic is required come to a full stop. soliciting agency shall be: registered
1. Attorney with the General as a char- organization itable as provided by ‘An Act regu- late solicitation and collection of funds for charitable purposes, providing thereof, for violations and mak- ing therefor’, an appropriation approved July amended; as
2. engaged in a raising Statewide fund activity; 3. liable for any injuries to any person or property during the solicitation which is causally related to an act of ordinary negligence of the soliciting agent.” Ill. 95V2, Rev. Stat. ch. pars. ll-1006(a), (b), (c)(1),(c)(2),(c)(3). the statute holding unconstitutional, the circuit
court found that exemption charitable groups from the statute’s prohibition against rides soliciting business on resulted in public ways an and un arbitrary reasonable classification. The order did not state whether the court found the statute invalid as violative of equal protection or guarantees because it was special legislation, event, but in either the standards for deter (Jenkins its are the Wu mining validity *4 same. (1984), v. Gurell 468, 477-78; Ill. 2d People 98 Ill. (1983), 2d 194, 206.) complaint did state whether defend ant was charged under subsection or (a) (b) stat-
ute, court declared subsections (a) and the circuit both and unconstitutional. (b) rel. v. Chrastka People Carey ex Ill.
Citing rel. Tucker v. Kotsos People ex 68 Ill. 67, 2d no there were fun 88, that because People argue case, in the instant the test damental implicated of the statute determining validity be applied to fur the scheme was rationally designed was whether assert that neither ther State legitimate purpose. They rides, and solicit busi to stand in the right nor the solicit charitable right ness or employment that is a submit right. They contributions fundamental the class distinguishing there was a reasonable basis for from the class to which to which the law was applicable has determined that it the General Assembly was not: an important for charitable soliciting purposes and welfare of health, for the safety means of providing for rides and Illinois, soliciting the citizens of whereas health, and welfare safety prob created business only lems. safe roadways keeping
Defendant
concedes
that
11—1006
of section
for travel was a legitimate
purpose
solicitation of
it
1980,
and that
when
proscribed
prior
11—
contributions,”
section
or
business
“employment,
United States
(See
held constitutional.
1006 had been
Party
Labor
Oremus
1980),
Cir.
619 F.2d
(7th
of subsections
however,
the amendment
She argues,
an
creating
(c),
of subsection
and the addition
(a)
(b)
were
for charitable purposes,
for solicitation
exception
Citing
purpose.
to this legitimate
no
related
way
in the General
the debates
House and Senate bills
Proceedings,
Assem., Senate
Ill. Gen.
(81st
Assembly
1979,
5-6;
at
20,
12, 100-11; March
15, 1979, at
March
Assem., House Pro
1-2; 81st Ill. Gen.
June
at
en
to the
leading
91-92)
at
ceedings, April
argues
also
section
defendant
actment of
11—
*5
479
the statute “creates an
suspect classification
inherently
which was intended to exclude religious
re
organizations
ferred to as ‘cults’ such as the Moonies and Hare
Krishnas.” She asserts the
that the re
show
transcripts
quirement
statewide fundraising
was consid
activity
ered an “important protection” against fundraising by
cults. She argues that
(c)
subsection
does not act uni
as to all
formly
those persons
rides, business or
soliciting
charitable
streets,
contributions on the
and results in dis
crimination as to
of them
many
because certain groups
may solicit
contributions,
charitable
whereas others may
not.
defendant
Finally,
admits that
there
may
ques
tions
her
concerning
standing
the statute’s
challenge
because
validity
her conduct does not fall within the
class of conduct which is regulated by
(c).
subsection
She
argues, however,
that she has
to contest
the
standing
of the
constitutionality
entire section because subsections
,(a)
and
(b)
(c) are so interrelated that
the
invalidity
subsection (c) renders the entire statute invalid (People
v. Mayberry
63
(1976),
Ill. 2d
that
1); and
her conduct
constitutes an exercise of her first amendment
rights
(County Court v. Allen 60 L. Ed.
2d
2213;
S. Ct.
v. Wilson
Gooding
U.S.
31 L. Ed.
Before issues, the addressing we note certain conces- sions made oral during argument defendant’s counsel. by When questioned whether the statute, absent subsection (c), constitutional, counsel in the affirma- responded tive. He with agreed People subsections (a) (b) were a valid means of health, for the providing safety and welfare of those persons on the traveling highways, and that keeping safe is a highways legitimate State interest to which subsections (a) (b) are re- clearly lated.
Although our is a opinion there basis for doubt whether defendant has standing challenge validity
of the statute, have not People raised Un- issue. der circumstances, we will not discuss the question of standing and will turn to a consideration of the mer- its. whether,
We consider first as asserted question defendant, the statute purports regulate a fundamen- tal We not right. do agree any rights under the first amendment are here abridged. First amendment are absolute, time, reasonable place and manner *6 restrictions on the exercise of those are well rec- ognized.
“Narrow and reasonable regulation of the exercise of
rights designed to keep the streets
open
safe for tra-
vel
is not prohibited by the First Amendment. Shut-
v. City Birmingham,
tlesworth
147, 154-55,
394 U.S.
of
935, 940-41,
(1969); Adderley
89 S. Ct.
22
L. Ed. 2d 162
Florida,
v.
39, 41-43,
242, 244-45,
385 U.S.
S.
87
Ct.
17
Louisiana,
Cox v.
L. Ed. 2d 149 (1966);
536,
379 U.S.
554-55,
453, 464,
85 S. Ct.
(1965).”
We the statute not question did or abridge involve first amendment any right of defend- ant.
We consider next whether question statute creates an unreasonable classification violative of either equal protection the Federal provisions Constitu tion or the equal protection special legislation provi Jenkins v. Wu sions of the Illinois Constitution. 2d (1984), 468, 477-78, 102 Ill. the court said: “The fourteenth amendment to the Federal Constitu requires tion equality groups persons between ‘simi larly situated.’ It does not deny power State the (Eisenstadt treat persons different classes of differently. v. Baird (1972), 438, 446-47, 349, 405 U.S. 31 L. Ed. 2d 358, 1029, 1034-35; People Mathey (1983), v. 292, 296; People Bradley (1980), v. 410,
Ill. 2d 79 Ill. 2d right or of a fundamental fact, in the 416.) In absence differenti classification, may even legislature suspect if there is a ra similarly situated persons ate between Board Retire doing (Massachusetts so. tional basis 307, 312-13, 49 L. Ed. 427 U.S. Murgia (1976), v. ment 2566-67; rel. 2562, People ex 520, 524, 96 S. Ct. 2d 191, 204; Kujawinski v. 83 Ill. 2d (1980), Barr v. Difanis 563, This is the tradi 578.) 2d (1978), 71 Ill. Kujawinski used this that has been analysis equal protection tional equal protec State Federal and assessing court in both Authority Development (Illinois Housing challenges. tion 121; v. 116, Kujawinski 82 Ill. 2d (1980), v. Meter Van Bloom, 578; Inc. v. 563, 71 Ill. 2d S. Kujawinski (1978), ‘ 70, analysis, this 61 Ill. Under (1975), Mahin 2d “[a] must reasonable, arbitrary, and ‘must classification a fair and having of difference upon ground rest some legislation, so object relation to the substantial similarly circumstanced shall be treated persons that all ” ’ 438, 447, v. Baird 405 U.S. alike.’ Eisenstadt 1035, 1029, citing 92 Ct. F. S. S. 31 L. Ed. Virginia (1920), Royster Guano Co. 990, 40 S. Ct. 561-62.
64 L. Ed. anal equal protection also applied This court has above, challenged reviewing statute ysis, articulated the Illinois Con legislation special provision under 194, 206; Illi Ill. 2d (People stitution. Gurell *7 (1980), Meter Authority v. Van Housing Development nois 116, 124; (1979), 79 Ill. 2d Wagner 82 Ill. 2d Anderson v. Bloom, 61 Ill. 2d 295, 315; (1975), S. Inc. Mahin treatment of the similar underlying The reasons in Illinois were special legislation and equal protection therefore, and, need extensively discussed in Anderson repeated not be here.” the effect that an to argument
Defendant presents against discriminate (c) the of subsection provisions the per- other because groups requirement charitable its limits en- to solicit within mission from a municipality statutory sufficient the without municipalities, ables and determine such groups to choose between guidelines, who may be authorized to solicit funds. We need dis cuss these contentions for the reason that clearly defend ant is not a member the she against class whom con tends the discriminates, statute and is without standing to the challenge validity of the statute on that ground. Board Education Bakalis Ill. (1973), 2d 467. that,
Defendant contends in permitting persons stand on a its highway compliance with upon require- ments, (c) subsection creates an unreasonable classifica- tion for the reason that the hazard which the statute seeks eliminate is the just person as whether great standing on the highway upon does so with compliance in and (c) (b). subsection or violation of subsections (a) isAs stated in the from opinion the quotation Jenkins v. Wu 2d Ill. State treat may different classes of persons and absent fun differently, right damental differentiate between simi may persons situated if there is a rational basis for so. larly doing enactment of subsections shows the (a) (b) soliciting General has determined that rides or Assembly business on the con creates public highways problems the cerning health, of the citizens of safety welfare this State. It has that solicitation apparently also.decided of charitable contributions on a different footing stands than other solicitation for and results bene purposes fits to the offset the risks in solici public which inherent on tation the reason highways. We find classification related to a ably legitimate governmental objective, as the court said in Garcia v. Tully 72 Ill. 2d “[wjhether Assembly course chosen General either to achieve a desired result is wise or best judicial not a in subject means available proper 72 Ill. 1, 10. quiry.” stated,
For reasons we hold that defendant classifica- failed overcome presumption *8 The judgment valid. and the statute reasonable tion was to the is remanded reversed, the cause is therefore consistent proceedings County of Cook circuit court with this opinion. and remanded.
Reversed CLARK, dissenting: CHIEF JUSTICE dissent. I respectfully if it pre- statute with this
I have no problem would high- on standing public from all persons equally vented obviously Such activity motorists. soliciting ways risks, for solicitor and unnecessary creates grave a com- indeed legitimate, The State has motorist alike. safe from harm. interest in both keeping pelling, a motorist also an interest protecting State have may audience, intersection, who, as a captive at an stopped But nei- to undue to contribute. subject pressure bemay discriminatory interests can possibly justify ther of these re- classes of solicitors without treatment of different This statu- itself asserts. to the interest the State gard engage for the Lions Club scheme lets a fundraiser tory hawking his it to a newsboy in an which forbids activity incense, begging or a nun a Hare Krishna selling papers, the ultimate is no showing alms for the There poor. has any relationship of the funds solicited destination of the means which to the safety whatsoever answer to claim Nor is it any funds are gathered. of harm the bene- against balance the risk may State of funds for from the collection fit it will accrue believes the State charities, so doing since by certain specified perceived on the basis of speakers discriminates between This is messages. content of their differences catego- the first amendment of discrimination which type forbids. rically made two really to me that defendant
It seems the statute prohibiting The first claim that claims. *9 roadway solicitation of motorists fa- unconstitutionally vors solicitation for charitable contributions over non- charitable business solicitation. The second claim is that the statute favors the unconstitutionally solici- roadway tation for contributions engaged some by charitable organizations over the solicitation of others. Both claims rest upon both the equal clause of the protection four- teenth amendment and the first amendment guarantee of free speech. essence, defendant claims that the statute arguably infringes interests upon protected by the amendment; first that these interests are to be deemed “fundamental” for equal protection purposes; that classifications affecting fundamental must rights be subject to strict under the scrutiny equal protection clause; and that the application of such scrutiny this regulation demonstrates its While unconstitutionality. that conceding she is not a member of the class affected the by statute’s discrimination against charities, certain defendant argues, citing Gooding Wilson U.S. L. Ed. 2d that she has standing under the first amendment overbreadth doc- trine to raise the claims of that class. treats these two claims somewhat dif majority As to the
ferently. claim,. first the first inti majority mates that defendant lacks standing, but nevertheless proceeds to consider the merits of her claim. So far as I can understand done, what the it decides majority that no i.e., fundamental the rights, under first “rights amendment are here (114 Ill. 2d at I am abridged” 480). not sure what the means this statement. majority Perhaps with the State that “neither majority agrees the right rides, to stand in the and solicit busi ness, or nor the for employment right solicit charita ble contributions is a fundamental Ill. 2d at right.” (114 If this I must majority’s meaning, disagree, If, reasons which will clear on the other below. hand, the does majority believe this statute impli cates fundamental rights, is correct in stat majority ing amendment are rights absolute, “[f]irst time, reasonable place, and manner restrictions on the exercise of these are well recognized” (114 Ill. 2d at 480). But while the cites two majority first amend ment cases dealing with reasonable restrictions upon time, and manner place, speech public fora —cases which, had the further majority considered them, would have pointed way proper of this analysis claim, it fails to test for apply proper time, assessing place, and manner restrictions. Without further analysis of the first amendment stake, interest at the majority *10 then seems to the State’s accept contention that no fun damental are rights at issue and applies the minimal scrutiny standard appropriate to equal protection claims that do not involve a fundamental right. In reasoning embodied in a single sentence, the majority concludes that the issue, classification at being neither arbitrary nor capricious, is reasonable.
toAs the second claim, the concludes majority simply that defendant lacks standing.
I believe that
the
errs
it
majority
when
implies that
there is any question as to defendant’s standing to raise
her
claim,
first
that of unconstitutional discrimination
against persons soliciting business.
Membership
the
class
an
aggrieved by
allegedly unconstitutional provision
is all that
for
required
under
standing
Illinois law.
(People Upton (1986),
She complains the statute discriminates against the activities in which she engaged and for which she was charged, motorists soliciting for rides and soliciting business, motorists for penalized under sec respectively tions 1006(a) and 1006(b) the Illinois Vehicle 11— 11— Code (Ill. Rev. Stat. 95V2, ch. pars. 1006(a), 11— of her first claim is that these 1006(b)). essence
11 — are more than the solicitation harshly activities treated from un- exempted for charitable contributions penalty the to charge der section Since State chose 1006(c). 11 — claim sections, her under both it cannot be heard to ride, a and only soliciting she was business. soliciting Defendant is therefore a member of the class aggrieved (b) activity. of subsections and proscription (a) class, it is dif- fact, if defendant is not a member of that class. imagine ficult to who would be a of that member Moreover, infringes upon statute arguably since this standing amendment defendant has raise rights, first activity the claims of third whose parties hypothetical (b) also suffers of subsections discriminatory impact sweeps considered Where a statute too (c), together. freedoms, first amendment broadly infringes upon amend- is not the first protected by whose conduct party facial challenge validity ment has standing to assert hypothetical entire statute v. Jo- State (Secretary of not before the court. parties H. Munson seph Co. L. Ed. 795-96, This rule ensures S. Ct. despite amendment claims litigation first liti- on effect” of “chilling many potential proscription of solici- case, (b)’s In this proscription subsection gants. in- me, it would, necessarily seems to tation business activity. deal first amendment great clude *11 vendors, be example, prohibited would Newspaper inter- at to hawking stopped from their motorists papers existence to sections, apparent whose will be practice Shore Drive has driven down Lake who recently anyone other Moreover, of rush hour. during in the city Chicago by are also protected forms of business solicitation Arizona Bates v. Bar e.g., State first amendment (see, of 97 810, 823, S. 350, 363, 433 53 L. Ed. 2d U.S. (1977), State Virginia 2691, advertising); Ct. 2698-99 (lawyer 487 v. Consumer Pharmacy Virginia Board Citizens of Council, 748, 761-62, Inc. 425 48 L. Ed. 2d (1976), U.S. 346, 358, 1817, 1825-26 (advertising pre- to prices)), subject and would scription drug equally this proscription under statute. Under the overbreadth doctrine, defendant has to raise the claims of standing hypothetical parties third who in these and other engage forms of first amendment and to that the activity, argue forms in which the dis- expression they engage suffer crimination in favor of the solicitation for chari- certain ties from immunized under subsection penalty (c). reasons,
For same to as standing defendant has sert the of those whose solicitation for con speech tributions is under subsection and who are penalized (c) not given which subsection exemption (c) provides charities meeting certain criteria. Defendant argues: (1) solicitation proscriptions against contained (b), subsections are so (a), (c) intertwined that she should be granted standing challenge (c) subsection as well as subsections (a) People Mayberry (b) (see 1, 63 2d (1976), Ill. that she has 6-7), (2) standing raise the claims of those parties third affected subsec by tion the first (c) under amendment doctrine overbreadth H. Secretary Joseph State Munson Co. (see 947, 956-57, 795-96, 81 Ed. 2d 786, U.S. L. 104 S. v. Wilson 2847; Gooding 518, Ct. U.S. (1972), 405 Ed. 520-21, 31 L. 2d S. Ct. If 1105). answer to these and au majority any arguments thorities, it has me. Without consideration escaped any or Mayberry Gooding, defendant, cited both states that “defendant is not member majority simply of the class whom claims the discrim she statute against Board v. Ba Education inates,” and cites case of kalis Ill. support. there
Bakalis because the claim dis- apposite not an claim in- equal involving cussed was protection *12 other first amendment interests. While fringement upon Bakalis consider claims, of the sections first amendment another, the nonfun section cited deals with by majority the damental claim. On the cited the page by majority, Bakalis discusses of court the claim that provision certain school funds for public transportation nonpublic other school against nonpublic pu discriminated pupils meet residence who could not the of pils requirement route. Ill. 2d (54 school along regular public bus the This on challenged discrimination was solely that counterpart equal basis it the Illinois violated clause, the Illinois section 13 of article IV of protection IV, Const. art. sec. Since (Ill. 13). Constitution involved, here, as it plain first is amendment of school tiffs lack in the class membership nonpublic to take pupils advantage transportation unable Here, however, first funds her deprived standing. Bakalis involved, and amendment interests are therefore in the is class membership aggrieved While inapplicable. the sine non for qua is the overbreadth standing, usually first an for direct doctrine creates both exception for which amendment claims and claims equal protection Therefore, amendment defendant first implicate rights. those solicita to raise claims of whose standing is this statute. by tion contributions forbidden claims, I merits believe Turning to the of defendant’s lies in its that mistake made majority crucial no of the State’s contention apparent acceptance Since the majority are here involved. rights fundamental it neces- contention, for this is argument itself makes no might at what be. guess argument sary absence, that, It is in the a fundamental elementary differ- classification, legislature may or right suspect is a situated if there entiate persons similarly between Re- Board (Massachusetts so. doing rational basis for tirement v. Murgia L. 312-13, 49 2562, 2566-67; Ed. 2d Jenkins v. Wu it However, 102 Ill. 2d el 477-78.) equally that a statute on the ementary which does discriminate basis of classifications of suspect fundamental will *13 subject be to strict Strict means that scrutiny. scrutiny the State must demonstrate that its classifications are tailored to meet a narrowly State interest. compelling First amendment are fact, fundamental. “[wjhen government discriminates regulation among speech-related forum, activities in a public equal pro tection clause mandates that the tai legislation finely lored to serve interests, substantial state and the justifi cations offered for distinctions it any draws must be scrutinized.” carefully v. Brown 447 (Carey (1980), U.S. 455, 461-62, 263, 270, 65 L. Ed. 2d 2286, 100 S. Ct. 2290-91; ex rel. People Tucker v. Kotsos 68 (1977), Ill. 2d 88, The greater protection granted first amendment rights flows from their role as inexorably of mainstays the democratic from process, and their contribution individual self-expression Therefore, if, as creativity. I believe, this statute first amendment implicates rights, errs majority by that the statute’s requiring only classification have some rational basis.
I can think of two reasons why majority might have the State’s contention accepted that this statute did fundamental, implicate first amendment rights. must either majority believe solicitation for (1) busi- ness or charitable contributions is not a fundamental or a right or speech-related activity, (2) even assuming is, it State of ownership roadway gives State the right arbitrarily determine who can exercise such a on its I right believe that both property. proposi- tions are incorrect.
The Supreme Court has stated that solicita- clearly tion of charitable contributions is protected expression under the first amendment. v. (Heffron International So-
490 Consciousness,
ciety Krishna Inc. 452 U.S. (1981), for 640, 298, 647, 306, 2559, 69 L. Ed. 2d 2563 (solicitation of religious funds at State organization v. En Citizens a Better Village Schaumburg fair); for vironment 620, 632, 73, 63 L. Ed. 2d 826, 84, 100 S. solicitation of funds (door-to-door Ct. is organization).) for charitable Solicitation be protected it cause with informa “characteristically intertwined tive speech seeking and perhaps persuasive support causes,” particular “without solicitation because flow information and would advocacy likely such cease.” 63 L. Ed. 2d 100 S. U.S. (444 Moreover, advertising Ct. 826, 833.) nonmisleading Bar (Bates State lawful is also products protected. Arizona 350, 362-63, 53 L. Ed. 2d U.S. 822-23, advertising); S. Ct. 2698-99 (lawyer Citizens Virginia Board Virginia Pharmacy State *14 761-62, 48 Consumer Council Inc. 748, 425 U.S. (1976), 358, 1825-26 346, 1817, (advertising Ed. S. Ct. L. 96 cannot Thus, of drug majority prescription prices).) and others have to that defendant be understood mean to right no fundamental solicit. mean that the right may
Alternatively, majority edge begins where State property to solicit ends —on incor- this is also But roadway. proposition public rule, control may a State While, general rect. as a much more limited its control is own property, use its v. fora.” (Cornelius to “public deemed those places Fund, Inc. (1985), & Educational NAACP Legal Defense S. Ct. 567, 578, 105 788, 800, L. Ed. 2d 473 87 U.S. long which by those “places fora are 3439, Public 3448.) as- been devoted fiat have government tradition or by Association Education (Perry and debate.” sembly 37, U.S. Association 460 Educators’ (1983), Perry Local 948, The Su- 954.) 103 Ct. 794, 804, S. 74 Ed. 2d 45, L. tradi- again, time stated, time and has Court preme 491 sidewalks, tional fora include and streets. public parks, 461 (See 171, 177, United States Grace U.S. (1983), 736, 75 743, 1702, 1707; L. Ed. 2d S. Ct. Amalga 103 mated Food Union Local 590 v. Employees Logan Valley 603, Plaza 391 (1968), 610, U.S. 20 L. Ed. 2d 1601, 1607; S. Ct. Hague 496, v. CIO 515, 1423, 1436-37, 83 L. Ed. 964. See Jesus, also Jews Inc. v. Board Airport Commis sioners (1986), 785 F. 2d cert. granted U.S._, L. Ed. 2d S. 107 Ct. majority provided no basis for the simply contention that the involved here is not a forum. public
In two cases in
courts,
the Federal
defenders of ordi-
nances similar to the statute under consideration here
argued that streets
open motorized vehicular traffic
were not
fora.
public
(See ACORN v.
Phoenix
City of
(9th Cir. 1986),
Therefore, this case does involve fundamental rights. It is simply denial beyond that the first amendment pro- tects the right to solicit in a public forum. Given the fun- of the damentality right in question, the majority’s appli- cation of a deferential standard of review is mistaken.
Moreover,
application
the proper standard of re-
view
compels
conclusion that this statute is unconsti-
tutional. As a general rule, speakers may be excluded
from a public forum
when “the
only
exclusion is neces-
sary
serve a
state
compelling
interest and the exclu-
*15
sion is narrowly drawn to achieve that
interest.”
(Cornelius v. NAACP Legal
& Educational
Defense
Fund, Inc. (1985), 473
788,
U.S.
800,
492 are manner of so as the restrictions: con- speech long (1) neutral, serve (2) significant tent tailored to narrowly interest, leave alterna- (3) open ample governmental City Renton v. channels of communication. (See tive Theatres, Inc. Playtime 41, 47, 89 L. (1986), 475 U.S. Perry Education As- 925, 928; 29, 37, Ed. 2d 106 S. Ct. Local Educators’ Association Perry sociation 794, 37, 45, 804, 948, L. 2d 103 S. Ct. 74 Ed. not to achieve the 955.) This statute drawn narrowly State’s interest admittedly compelling highway safety, it is a content-neutral restriction upon place not of speech. first, this is not a content- the second
Taking point Court Supreme clearly neutral restriction. else, means all the First Amendment stated that “above to has no restrict be- government power expression ideas, matter, its its or its subject cause its message, (Police Department Mosley 408 U.S. content.” 216, 2286, 2d 92 S. Ct. 92, 95, L. Ed. Clause, not “under Protection Moreover, Equal itself, First Amendment government may mention the whose views it the use of forum grant people not finds wishing use to those ex- deny but acceptable, And it or more controversial views. less favored press or de- discussing are worth not which issues select may L. Ed. 96, 33 (408 facilities.” U.S. bating public 2290.) Mosley, Su- 212, 217, Chicago could ban held that city Court preme feet of a within peaceful picketing most forms simi- hours, school while school, permitting during public in a involved labor of a school larly peaceful picketing “labor” discrimination between The ordinance’s dispute. to be con- held “non-labor” picketing picketing 100, 33 L. Ed. 2d (408 tent related. U.S. discrimination Here, the statute’s 2286, 2292.) S. Ct. solicitation, and charitable solicitation between business *16 dif- solicitation by its discrimination between as well as likewise con- of charitable organizations ferent types tent related. the leg evidence that
Moreover, there is considerable in order to favor popular islature enacted this legislation the sponsors charities over “cults.” unpopular to al section 11—1006 amending House and Senate bills made clear that they only low charitable solicitation both wished certain favored the benefit groups enjoy it stated that solicitation. the Senate roadway would “the Veteran’s organizations, benefit legislation the Ill. Gen. Lions, (81st the Kiwanis and others” 20, 1979, 5), March at and Assem., Proceedings, Senate “the in the House that it would solicitation permit by Columbus, and other Lyons [sic], Knights V.F.W. Assem., Ill. Gen. House Pro (81st fine organizations” at ceedings, legislator specifi One April 10). fund rais referred to the of statewide cally requirement “an I have some ing as activity important protection. concern that this Bill include fund might raising possibly cult I think that.” considering we should be [sic] Assem., (81st Ill. Gen. House Proceedings, April 1979, at Another to the 91.) legislator, again referring Club, Columbus, VFW, “Lions Rotary, Knights which he said were worthwhile Poppy Day,” “very [and] contrasted them to the “Moonies or the organizations,” Assem., cults or Ill. Gen. House you.” (81st what have 26, 1979, at After a an 91.) Proceedings, April colloquy, other to the bill’s of discre legislator, referring vesting tion with seemed to that this municipalities, provi imply “cults,” sion was also aimed at that another stating in the session had been “afraid of the legislator prior No, Moonies. to get permission but have anyway you from a order to be able to do solicit municipality Assem., Ill. Gen. House ing.” (81st Proceedings, April at Thus there is evidence that ample fundraising reg- of statewide statute’s requirements un- organization, requirements istration as charitable which religious to met by, example, groups likely to limit the were intended register, are not required to those whose groups solicitation benefits favored, the same deny legislators messages dis- legislators messages benefits to whose groups liked. *17 to the favored granted
In so doing, legislature method fundraising the exclusive benefit of a groups it Motorists dangerous. is as as is which powerful in their intersections, temporarily trapped at stopped audience,” extremely a vehicles, “captive represent own City ACORN v. (See to undue susceptible pressure. n.11, 1271 F.2d 1270 798 (9th 1986), Phoenix Cir. themselves of annoy to free n.12.) give simply will Many To such a grant power ance continue on their way. and to it deny to some fundraising groups ful method of the first purposes to others contradicts basic amendment. nature and pur- fact, discriminatory
In this statute’s other, nondiscrimina- it from to distinguish serve pose held which have been solicitation roadway bans on tory in ACORN upheld The bans on solicitation constitutional. 1260, and F.2d Cir. (9th 1986), Phoenix City of 1980), Cir. (7th v. Oremus Party United States Labor of any solicitation roadway included F.2d both regard without business, or contributions employment, solicited. Thus of the funds destination to the ultimate reli- heavy and the majority’s neither is apposite, case misplaced. ance on is Oremus that this reasons, I would conclude foregoing For the therefore, not, a neutral, and is not content statute is manner of time, or place, upon reasonable restriction neu- was content the ban assuming Even speech. meet the it would some doubt whether tral, I would have dif test, among second of the since discrimination prong solicitation, would dangerous, ferent all types equally not seem to serve an admittedly significant necessary Moreover, one court has held State interest safety. that even a content-neutral ban on solicitation was State in significant tailored meet a narrowly (ACORN (E.D. 1984), terest. New Orleans La. City of 606 F. case, stat Supp. any discriminatory ute can be considered to tailored to hardly narrowly be meet the State’s interest in traffic significant safety. neutral,
Since the statute is not content it can only it justified that meets the strictest scru- upon showing i.e., that it tiny, drawn to meet a narrowly compelling State interest. It is not. In Department Police v. Mosley 212, 219, 33 L. Ed. 2d 2286, 2292, the court held that discrimination against peaceful nonlabor was not tailored to picketing narrowly meet a State interest the dis- compelling preventing classrooms, ruption public for the reason that simple the State could not show that labor picketing any less than disruptive Here, nonlabor the State picketing. commercial, made no or showing religious, polit- *18 ical solicitation is any more than solicitation dangerous Kiwanis, for the the Lions, Therefore, or the Elks. this statute not narrowly tailored to meet a compelling State interest. this
Moreover, statute violates the first amendment for a reason. Unlike the separate independent prede- cessor statute upheld Party United States Labor v. (7th Oremus Cir. 1980), grants F.2d this statute municipalities complete discretion as to whether to allow charities, solicitation a by registered provision which the makes clear legislative history above quoted intended allow the of solicitation proscription “cults.” Even I to unpopular were assume that this stat- above, ute was not unconstitutional reasons given amend- I it falls afoul of first would still believe in an which vest licensing ment rule forbidding systems or withhold official discretion to grant administrative the proper regu- criteria unrelated broad permit upon Bir- City Shuttlesworth See lation of public places. mingham 147, 153, 22 L. Ed. 2d 168, 89 S. Ct. 940. reasons, judgment I would affirm
For these court, I therefore dissent. the circuit
(No. 63052. Minor, LAWRENCE STEINBERG, Appellee, JAMES PETTA, Appellant. 3, 1986.
Opinion December filed