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Mich. City's Ban on Outdoor Donation Bins Unconstitutional

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By Mark Wilson, Esq. on April 14, 2015 3:57 PM

The city of St. Johns, Michigan passed an ordinance banning unattended outdoor charitable donation bins. Planet Aid is a nonprofit organization that promotes sustainable food production and healthy lifestyles. Part of its business involves the use of such outdoor bins to get donations of clothes and shoes.

Of course you know where this is going, right? In January 2013, St. Johns directed Planet Aid to remove its donation bins, claiming the bins attracted "boxes and other refuse." Planet Aid refused and the city removed them. A year later, the city council passed an ordinance banning such bins, leading to this lawsuit.

A Charitable Donation Bin Is Speech

Planet Aid's lawsuit claimed that the city infringed on its First Amendment rights. The district court, finding that operating donation bins to collect goods for charity was protected speech, applied strict scrutiny and invalidated the ordinance.

The Sixth Circuit affirmed, noting that soliciting charitable contributions has a long history of First Amendment protection. While the U.S. Supreme Court hasn't addressed the issue of unattended charitable donation bins, the Fifth Circuit did when it found a Texas law requiring groups operating such bins to disclose whether the items would be sold for profit violated the First Amendment. In that case, the Fifth Circuit said that, "[a]t a minimum, the donation boxes implicitly advocate for that charity's views, ideas, goals, causes, and values."

The Sixth Circuit agreed, and went further, holding that "donation bins in many respects mirror the passive speaker on the side of the road, holding a sign drawing attention to his cause."

Won't Someone Please Think of the Dumpsters

The court also said the ordinance was content-based, which is the most egregious type of imposition on the First Amendment. "The ordinance does not ban or regulate all unattended, outdoor receptacles," it said. "It bans only those unattended, outdoor receptacles with an expressive message on a particular topic -- charitable solicitation and giving."

And while keeping the city clean of the "plethora of problems associated with donation bins" the city asserted is a laudable goal, the court noted that all those same problems "apply with equal force to non-expressive outdoor receptacles such as dumpsters, receptacles at recycling centers, and public and private trash cans." Consequently, the ordinance applies only to charitable donation bins, not for-profit receptacles.

The city maintained that the ordinance applied to all donation bins, making the ordinance content-neutral. The court disagreed: "[a] speech regulation can be viewpoint-neutral but content-based," it said; even though a speech regulation applies to all sides of a given subject, the fact that the regulation excises that subject, but not others, from public discourse makes it content-based.

Nor did the court find persuasive the city's argument that the donation bin restriction is just like a restriction of the size of a billboard. By singling out charitable donation bins, the court said, the city was doing more than just regulating their size or location: The existence of the bins themselves, as charitable donation bins, is their expressive content.

Additionally finding that the ordinance wasn't sufficiently narrowly tailored, the Sixth Circuit affirmed the district court's order -- which, by the way, was just a grant of a temporary injunction prohibiting the city from enforcing the ordinance.

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