After Further Review: 7th Circuit Strikes Down Anti-Panhandling Law; Concurrence Muses on First Amendment’s Effect on Laws Restricting Speech on Religion, Abortion

12 August 2015 Wisconsin Appellate Law Blog

What do panhandlers and pro-life demonstrators have in common? According to Circuit Judge Daniel Manion of the Seventh Circuit, the First Amendment now makes it tougher to silence the voice of either in the public square.

Last Friday, in Norton v. City of Springfield, No. 13-3581, Judge Frank Easterbrook, writing for the Seventh Circuit, found that an ordinance that prohibits panhandling in Springfield’s “downtown historic district” runs afoul of the First Amendment because it embodies content discrimination subject to strict scrutiny under the Supreme Court’s June 2015 decision in Reed v. Town of Gilbert, No. 13-502. (Springfield had not tried to justify the ordinance under that standard.) Specifically, the law restricts speech because of its content, barring oral requests for the immediate payment of money, while allowing signs asking for money and oral proposals for commercial transactions.

This was actually a replay review by the Seventh Circuit panel. Back in September 2014, before Reed, Judges Easterbrook and Diane Sykes upheld the ordinance because, even though its restriction depended on the subject matter of the speech, it was not “content-based” and did not “restrict[] speech because of the ideas it conveys” or “because the government disapproves of its message,” so it was not subject to strict scrutiny. Still, the majority admitted some uncertainty, and Judge Manion dissented, calling the ordinance “alien to our First Amendment jurisprudence” and asserting that the majority had applied the wrong test. When the plaintiffs sought rehearing, the panel held the petition for the Supreme Court’s decision in Reed.

Reed vindicated Judge Manion. Judge Easterbrook’s new panel opinion said that Reed classifies a regulation as content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.” Judge Manion joined the panel’s new opinion, but wrote separately to highlight what he saw as Reed’s importance:

[T]opical censorship is still censorship. Rejecting the idea that the government may remove controversial speech from the marketplace of ideas by drafting a regulation to eliminate the topic, Reed now requires any regulation of speech implicating religion or abortion to be evaluated as content-based and subject to strict scrutiny, just like the aforementioned viewpoint-based restrictions covering more narrow contours of speech. . . . Few regulations will survive this rigorous standard.

That is, Reed’s clear-cut rule suggests that many ordinances will be struck down. The Seventh Circuit is among the first federal appellate courts to analyze Reed, and it remains to be seen what efforts courts will undertake to rescue laws from First Amendment peril. Justice Kagan, whose Reed concurrence parted from the majority’s reasoning, expressed concern that the First Amendment could now bar innocuous rules, such as those permitting dispensations from prohibitions on lighted signs in residential neighborhoods for “name and address” signs in front of houses. But, as Judge Manion is surely correct in pointing out, Reed promises to spark renewed debate on more traditional hot-button issues as well.

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