Some Mayer Brown LLP colleagues of mine — Michael Scodro, Geoffrey Pipoly, Linda Shi and Christopher Ferro — and I have filed a cert. petition in Recycle for Change v. City of Oakland. I thought some of our readers would find it interesting.
Many cities throughout the country, including Oakland, Calif., regulate bins that solicit clothing donations. Several Supreme Court decisions have held that charitable solicitations (including ones conducted by for-profit fundraisers on behalf of charitable causes) are generally protected by the First Amendment; and some lower court decisions have held that restrictions on this sort of unattended solicitation are content-based speech restrictions and therefore violate the First Amendment. But the U.S. Court of Appeals for the 9th Circuit upheld the Oakland restriction, assuming without deciding that it was a speech restriction and concluding that it was content-neutral; we argue that this creates an important circuit split, and is inconsistent with the court’s charitable solicitation cases. Here’s a bit more detail from the petition, but read the whole thing if you’re interested:
1. Recycle for Change … is a California not-for-profit organization that maintains numerous unattended donation bins in municipalities throughout California. Recycle uses the bins to further its charitable mission through the collection of textiles. Donated items are recycled or resold by Recycle, and the ensuing revenue is used to fund various nonprofit efforts worldwide, particularly in low-income nations.
Recycle’s donation bins are placed on private property with the permission of the property owner. The revenue generated by the bins constitutes the bulk of Recycle’s income…. When suit was filed in the district court, Recycle maintained 63 bins throughout [Oakland] ….
3. … [An Oakland ordinance] singles out a subset of unattended collection receptacles for regulation. Specifically, the Ordinance applies only to “[u]nattended donation/collection boxes” (“UDCBs”) and to “UDCB operators.” The Ordinance defines “UDCB” to mean “unstaffed drop-off boxes, containers, receptacles, or similar facility that accept textiles, shoes, books and/or other salvageable personal property items to be used by the operator for distribution, resale, or recycling.” “UDCB operator” is defined as “a person or entity who utilizes or maintains a UDCB to solicit donations/collections of salvageable personal property.” …
[Recycle challenged the ordinance], observing that it conflicts with decisions from two Circuits, both of which held that similar ordinances were content based [restrictions on speech]. See Planet Aid v. City of St. Johns, 782 F.3d 318, 325-26 (6th Cir. 2015); Nat’l Fed’n of the Blind of Tex. v. Abbott, 647 F.3d 202, 212-13 (5th Cir. 2011). Although Oakland argued in its brief that the Ordinance was different from those in Planet Aid and Abbott because it applies equally to both for-profit and non-profit solicitation, Recycle pointed out that this is a distinction without a difference in light of the well- established rule that solicitation constitutes protected speech whether it is paid or unpaid. See, e.g., Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 632 (1980); Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 961 (1984); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988).
The Ninth Circuit affirmed. It declined to adopt other Circuits’ conclusion that unattended donation bins are a form of speech or protected expression, instead “assum[ing] without deciding that the Ordinance triggers First Amendment analysis” only because Oakland had conceded the point.
The court then ruled that the Ordinance was not a content-based speech restriction for two reasons. First, the court reasoned that the Ordinance applies not only to donation bins soliciting charitable donations, but to any bin that “accepts personal items ‘for distribution, resale, or recycling.’” According to the Ninth Circuit, the fact that the Ordinance applies regardless of “why the UDCB operator is collecting the personal items, whether it be for charitable purposes or for-profit endeavors,” means that the Ordinance does not apply solely to expression protected by this Court’s decision in Schaumburg.
Second, the court ruled that the fact that an officer must examine the content of the speech to determine whether the Ordinance applies does not render the Ordinance content based….