Local governments may now have more to fear following the Supreme Court’s decision in Reed v. Town of Gilbert (prior post here). While the Reed decision may cause many local governments to question the constitutionality of their sign ordinances, the Seventh Circuit, in Norton v. City of Springfield, (7th Cir. 2015), has extended Reed to local ordinances beyond just signs.
Norton involved a challenge to Springfield’s panhandling ordinance, which prohibited panhandling in the downtown historic district (less than 2% of the City’s area but containing principal shopping, entertainment and government areas). The ordinance defines “panhandling” as “an oral request for an immediate donation of money.” Although the ordinance prohibits panhandling, it allows oral pleas for deferred donations and signs requesting money.
Individuals cited under the ordinance argued that barring oral requests for money now but not regulating requests for money later was a form of content discrimination. Initially, the Seventh Circuit rejected this claim, reasoning that the ordinance regulated according to subject matter instead of content or viewpoint.
Following the Supreme Court’s decision in Reed, the Seventh Circuit granted a petition for rehearing and ruled the Springfield ordinance unconstitutional. Norton notes that under Reed “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Just as the Supreme Court rejected the Town of Gilbert’s justification that the sign ordinance there was neutral with respect to ideas and viewpoints, the Seventh Circuit rejected the same argument advanced by the City of Springfield. Because Springfield’s panhandling ordinance regulates by topic (oral requests for donations of money), the Seventh Circuit concluded that the ordinance was content based under the Supreme Court’s new test adopted in Reed.
Further, and perhaps troubling for many local governments, the Seventh Circuit states of Reed:
The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-matter regulation. Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.
Following Reed and now Norton, local governments across the country find themselves scrambling to review and revise sign ordinances and other ordinances regulating speech. Because local governments have long regulated by topics such as those at issue in Norton (oral requests for money) and Reed (temporary directional signs), it seems likely that these types of challenges may be more often encountered and problematic. Certainly, having local government planners and legal counsel work on these issues to get out ahead of potential problems is the obvious first step. Sometimes local governments may benefit by having “outsiders” – code consultants and lawyers – have a look at local laws to provide a perspective that those too close may not have.