October 2015 • Volume 103 • Number 10 • Page 12
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Groundbreaking Supreme Court opinion dooms panhandling law
After the U.S. Supreme Court's expansion of the First Amendment, the seventh circuit invalidates Springfield's panhandling prohibition.
In June, the Supreme Court of the United States invalidated an ordinance that controlled the placement of roadside signs in Gilbert, Arizona. The ordinance in Reed v. Town of Gilbert included a byzantine set of exceptions to a general prohibition on the display of outdoor signs without a permit that effectively favored certain kinds of messages over others.
As Justice Kagan stated in her concurring opinion, the town's ordinance didn't even pass "the laugh test." Id. at 2239. But even though Reed invalidated a clearly unconstitutional restriction on speech, the Court's ruling was so broad that some say it has transformed First Amendment jurisprudence as a whole.
What has some observers worried - and others pleased - is that Reed appears to greatly expand the reach of First Amendment rights. Content-based restrictions on speech have always been subject to the exacting strict scrutiny test. But Justice Thomas's opinion expands the definition of content-based speech. A law that targets "a specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter," he wrote. Id. at 2230.
Thus a law that bans outdoor signs - not just, say, particular messages, but outdoor signs regardless of their message - is now arguably subject to strict scrutiny. In a recent New York Times "Sidebar" column, Robert Post, the dean of Yale Law School, is reported as saying that since Reed's logic could encompass misleading advertising, it "would roll consumer protection back to the 19th Century." Adam Liptak, Court's Free-Speech Expansion Has Far-Reaching Consequences, New York Times (Aug. 17, 2015), http://nyti.ms/1NnX8GB.
This fear is understandable. For example, the Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq., regulates a subject - an individual's debt and its collection. Debt collectors are prohibited from making specific kinds of statements or from discussing a consumer's debt with a third party. Are those prohibitions now subject to strict scrutiny?
Content regulation = subject-matter regulation
Since the Court's ruling, several lower courts have invalidated laws that would pass a less stringent constitutional test. The U.S. Court of Appeals, Seventh Circuit, recently reversed itself in an Illinois-based case, finding that Springfield's panhandling ordinance was unconstitutional under the standard set in Reed.
In Norton v. City of Springfield, Illinois, 2015 WL 4714073 (7th Cir. 2015), the seventh circuit had initially upheld Springfield's panhandling ordinance. See Norton v. City of Springfield, Illinois, 768 F.3d 713 (7th Cir. 2014). The appellants filed a petition for rehearing that was stayed until the Supreme Court issued its ruling in Reed. After Reed, the seventh circuit granted the petition, applying Reed to Springfield's panhandling ordinance.
The ordinance "barr[ed] oral requests for money now, but [did] not regulat[e] requests for money later." Norton, 2015 WL 414073 at *1. The seventh circuit had originally found that because the "ordinance [did] not interfere with the marketplace for ideas" it was not a content-based restriction and was not subject to the strict scrutiny test. Id. On the petition for rehearing, the court found that Reed required a different result.
"The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-matter regulation," the court wrote in Norton. "Any law distinguishing one kind from another by reference to its meaning now requires a compelling justification." Id. at *3-4.
Changing the nature of strict scrutiny?
However, the seventh circuit's opinion in Norton provides some guidance for courts that may reflect an attempt to distinguish the Supreme Court's holding in Reed. "Our observation…that Springfield has attempted to write a narrowly tailored ordinance now pertains to the justification stage of the analysis rather than the classification stage." Id. at *4.
This distinction may be one avenue courts can take to soften the impact of Reed. It would also change the nature of the strict scrutiny analysis: i.e., narrowly tailored laws might survive strict scrutiny after Reed. This would be a change from the status quo. As the New York Times notes, strict scrutiny has "usually [been] fatal" to a challenged law.
Since Reed, courts in the ninth and tenth federal circuits have attempted to differentiate the ruling from the cases before them. Courts in the ninth circuit have considered three cases, while a court in the tenth has reviewed one.
For example, in Contest Promotions, LLC v. City & County of San Francisco, 2015 U.S. (N.D. Cal. July 28, 2015), the court found that because the ordinance concerned commercial speech, the standard expressed in Reed did not apply. Id. at *11. The Contest court applied the intermediate scrutiny test. Id.
It remains to be seen whether and how other courts will limit the Supreme Court's holding in Reed. It is sure to lead to more litigation to further define its reach.