Credit: Brad. K, Flickr. Image used subject to creative commons license.

Earlier this year, we reported on a Ninth Circuit decision upholding the City of Oakland’s permitting scheme for donation and collection boxes as a content-neutral, and permissible, exercise of government authority.  Now, however, the plaintiff in that case has asked the Supreme Court to review a narrow question from the Ninth Circuit’s decision: “Is a regulation content based for purposes of the First Amendment where it applies only to unattended receptacles that solicit donations or collections?”

Though we’ve covered this case twice before, as a refresher, Petitioner nonprofit Recycle for Change places donation and collection boxes around Oakland to solicit donated materials for the dual purpose of conserving environmental resources and raising funds for charity.   In 2016, the city enacted an ordinance regulating unattended donation and collection boxes and requiring that property owners or donation box operators obtain a permit, produce a site plan, and carry at least $1 million in liability insurance.  The license fee established under the permitting scheme is $246 per year, and the initial application fee for the permit is $535.  The city’s regulations require maintenance of the boxes, place restrictions on the size and location of the boxes, and prohibit the placement of boxes within 1,000 feet of one another.

Recycle for Change sued Oakland on First Amendment and Equal Protection Clause grounds.   The district court denied the plaintiff’s motion for preliminary injunction.  On appeal, the Ninth Circuit assumed that donation and collection boxes were First Amendment-protected speech.  The court then concluded that the ordinance in question was content neutral because the ordinance applied to “any unattended structure that accepts personal items ‘for distribution, resale, or recycling.’”  Ultimately, it concluded that the city’s ordinance withstood intermediate scrutiny and that Recycle for Change had not met its burden for a preliminary injunction.

Arguing that the Ninth Circuit opinion conflicts Supreme Court precedent and creates a circuit split, Recycle for Change has filed a petition for certiorari.  The organization points to opinions from both the Fifth and Sixth Circuits as creating conflict.  The Fifth Circuit opinion invalidated a Texas system requiring for-profit entities to make certain disclosures when collecting clothing and household items using “public donation receptacles.”  The Sixth Circuit decision likewise held unconstitutional a Michigan city’s complete ban on donation bins, reasoning that the ordinance was not content-neutral because it prohibited “only those unattended, outdoor receptacles with an expressive message on a particular topic—charitable solicitation and giving.”  Though the Ninth Circuit attempted to distinguish that latter opinion, Recycling for Change considered its efforts lacking.

Beyond its contention regarding a possible circuit split, Recycle for Change also argued that the opinion conflicts with Supreme Court precedent. In the organization’s view, the Oakland ordinance metes out different treatment on the basis of content, thus making it a content-based restriction of speech.  That is, Recycle for Change contends that the only way the city can determine whether a bin falls within the ordinance is by looking to see whether it solicits donations or instead, say, accepts trash.  On that view, the organization argues, the Ninth Circuit departed from Supreme Court precedent in instead analyzing the ordinance under a lower level of scrutiny than that reserved for content-based restrictions.

We will continue to monitor the case as it develops.  A denial of certiorari, of course, would not signal an endorsement of the Ninth Circuit’s approach, but a grant would likely indicate that the Court intends to further develop its standards for assessing content neutrality in the wake of its 2015 decision in Reed v. Town of Gilbert.