Do Restrictions on Clothing Donation Bins Violate the First Amendment?

The U.S. Supreme Court could decide whether city laws that target unattended charity drop-off bins violate the First Amendment.    Recycle for Change has sought review from the Supreme Court of a 9th U.S. Circuit Court of Appeals decision that upheld the city of Oakland’s ordinance that imposed stringent requirements on such bins.

Recycle for Change solicits clothes through its bins and then distributes the proceeds to various charities worldwide.  The city of Oakland passed an ordinance several years ago that sought to limit the number of such bins.  For example, the city’s ordinance said no unattended charity bin could be located within 1,000 feet of another.   This treatment is reminiscent of how cities treat strip clubs, not charities.

However, the Ninth Circuit ruled in May 2017 that the ordinance was both content-neutral and constitutional.   This decision conflicts with decisions from the Fifth and Sixth Circuits.

For example, the Sixth Circuit ruled in Planet Aid v. City of St. Johns (6th Cir. 2015) that a Michigan town ordinance restricting such unattended bins violated the First Amendment, because charitable donation bins can speak.  The Sixth Circuit concluded that “speech regarding charitable giving and solicitation is entitled to strong constitutional protection, and the fact that such speech may take the form of a donation bin does not reduce the level of its protection.”

However, the Ninth Circuit reasoned that its ordinance did not target speech but the non-expressive parts of the unattended donation bins.  “Instead, the Ordinance regulates the unattended collection of personal items for distribution, reuse, and recycling, without regard to the charitable or business purpose for doing so,” the Ninth Circuit wrote. “That conduct is neither expressive nor communicative.”

Recycle for Change has filed a petition to the Supreme Court.   It points out that the there is clear split in the circuits over the constitutionality of ordinances that regulate and limit unattended charity bins.

In its petition, Recycle for Change argues that the city of Oakland’s law targets it on the basis of content, because it does not target dumpsters or recycling bins, only unattended donation bins.  This shows that the ordinance targets speech involving charitable solicitation.

Perhaps the U.S. Supreme Court will clear up the circuit split and provide the answer.

David L. Hudson, Jr. is the author of several First Amendment books, including First Amendment: Freedom of Speech (2012).

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