Posted by: Patricia Salkin | May 8, 2017

9th Circuit Court of Appeals Denies Injunctive Relief in First Amendment Challenge to Ordinance Regulating Unattended Donation Collection Boxes

Recycle for Change (“RFC”), a California non-profit corporation, challenged the City of Oakland’s ordinance regulating unattended donation collection boxes (“UDCBs”) as being inconsistent with the First Amendment. RFC recycles and reuses donated materials to conserve environmental resources and to raise funds to be donated to various charities. RFC operates UDCBs in Oakland as a method of collecting donated materials from the public and places UDCBs on private property with the property possessor’s permission. In October 2015, Oakland enacted Ordinance No. 13335 C.M.S, which created a comprehensive licensing scheme governing the operation of UDCBs within city limits. RFC sought a preliminary injunction from the district court, which the court denied.

After assuming that charitable solicitations were protected speech, the court analyzed whether the Ordinance was content based or content neutral. RFC argued that the Ordinance was content based because an enforcing officer would have to examine a container’s message and determine whether the container solicited charitable donations to determine whether a receptacle was subject to the Ordinance’s requirements. The court rejected this contention because the Ordinance’s application was not limited to UDCBs soliciting charitable donations, but was applicable to any unattended structure that accepts personal items “for distribution, resale, or recycling.” Additionally, the court found the fact that an officer must inspect a UDCB’s message to determine whether it is subject to the Ordinance did not render the Ordinance per se content based. In this case, the Ordinance at issue did not discriminate by targeting speech written on the boxes or by targeting the substantive content of the boxes’ inherent expressive component. While collecting donations to further charitable causes is “content” because it is “intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues,” the Ordinance was intended to regulate the unattended collection of personal items for distribution, reuse, and recycling, without regard to the charitable or business purpose for doing so. As such, the conduct was found to be neither expressive nor communicative.

Having concluded that the Ordinance was content neutral, the court next analyzed whether it survived the intermediate scrutiny standard. The Ordinance was intended to combat blight, illegal dumping, and graffiti by requiring a thousand feet of distance between UDCBs operations. The court therefore found the Ordinance was narrowly tailored. Furthermore, additional avenues were open as RFC could continue to operate UDCBs pursuant to the Ordinance’s requirements, and could solicit charitable donations in ways other than operating an unattended collection box. Accordingly, the court affirmed, finding RFC failed to show that it was likely to succeed on the merits of its First Amendment claim.

Recycle for Change v City of Oakland, 2017 WL 1843747 (9th Cir. CA 5/9/2017)

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