Posted by: Patricia Salkin | April 20, 2015

Sixth Circuit Holds Charitable Donation Bins are Charitable Solicitations Entitled to First Amendment Protection

Plaintiff Planet Aid is a nonprofit charitable organization established in Massachusetts with the purpose to “work to strengthen and organize communities, reduce poverty and promote small enterprise development, support sustainable local food production, improve access to training and quality education, and increase health awareness and encourage healthy lifestyles.” To meet this goal, Planet Aid solicits donations of clothing and shoes through its unattended, outdoor donation bins, and then distributes the items collected from the bins to organizations in other countries. The City declared two of Planet Aid’s bins a public nuisance and removed them. The St. Johns City Council then voted to adopt Ordinance # 618, which stated: “No person, business or other entity shall place, use or allow the installation of a donation box within the City of St. Johns” and a grandfather clause: “A donation box that exists on the effective date of this ordinance shall not be subject to the prohibition contained herein.” (5.518(1)(d)). On February 14, 2014, Planet Aid filed a complaint in the district court, alleging that Ordinance # 618 violated Planet Aid’s First Amendment rights because it infringed on Planet Aid’s protected speech of charitable solicitation and giving. Defendant City of St. Johns now appeals the district court’s order preliminarily enjoining the enforcement of the City’s Ordinance # 618.

The court first discussed that although the Supreme Court had not addressed the status of unattended donation bins, the Fifth Circuit had in National Federation of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202 (5th Cir.2011). In that case, the Fifth Circuit held the speech of charitable donation bins may not be unidirectional, either-a citizen faced with a choice among several bins from different charities may be inspired to learn more about each charity’s mission in deciding which charity is consistent with his values, thus influencing his donation decision. In this way, donation bins in many respects mirror the passive speaker on the side of the road, holding a sign drawing attention to his cause. Accordingly, this speech regarding charitable giving and solicitation is entitled to strong constitutional protection, and government regulations of protected speech are subject to strict scrutiny only if they target the protected speech by being content-based.

Here, the ordinance did not ban or regulate all unattended, outdoor receptacles, only those unattended, outdoor receptacles with an expressive message on a particular topic: charitable solicitation and giving. Thus, Ordinance # 618 is content-based and strict scrutiny was applied. The ordinance preemptively and prophylactically prevented all charities from operating outdoor, unattended donation bins within the City in the interest of aesthetics and preventing blight. Accordingly, it was not narrowly tailored to promote a compelling Government interest. The holding of the district court was therefore affirmed.

Planet Aid v City of St. Johns, 2015 WL 1616242 (6th Cir. 4/6/2015)

The opinion can be accessed at:

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