In a unanimous opinion for a 7th Circuit Panel, Judge Easterbrook found that the city of Springfield’s anti-panhandling ordinance was unconstitutional, in light of Reed v. Town of Gilbert. Before Reed, the panel had upheld the statute, but the Supreme Court’s decision changed the analysis.
Here is the court’s analysis, where it explains what it thought was the doctrine before Reed:
The panel disagreed with that submission for several ressons. We observed that the ordinance does not interfere with the marketplace for ideas, that it does not practice viewpoint discrimination, and that the distinctions that plaintiffs call content discrimination appear to be efforts to make the ordinance less restrictive, which should be a mark in its favor. We summed up: “The Court has classified two kinds of regulations as content-based. One is regulation that restricts speech because of the ideas it conveys. The other is regulation that restricts speech because the government disapproves of its message. It is hard to see an anti-‐‑panhandling ordinance as entailing either kind of discrimination.” 768 F.3d at 717 (citations omitted). We classified the ordinance as one regulating by subject matter rather than content or viewpoint.
But Reed altered that analysis:
Reed understands content discrimination differently. It wrote that “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” 135 S. Ct. at 2227 (emphasis added). Springfield’s ordinance regulates “because of the topic discussed”. The Town of Gilbert, Arizona, justified its sign ordinance in part by contending, as Springfield also does, that the ordinance is neutral with respect to ideas and viewpoints. The majority in Reed found that insufficient: “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” 135 S. Ct. at 2228. It added: “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among view-‐‑ points within that subject matter.” Id. at 2230.
Easterbrook accepts this analysis begrudgingly, and notes that Kagan, Ginsburg, and Breyer concurred in judgment to stress the implications of the majority’s decision.
Three Justices concurred only in the judgment in Reed. 135 S. Ct. at 2236–39 (Kagan, J., joined by Ginsburg & Breyer, JJ.). Like our original opinion in this case, these Justices thought that the absence of an effort to burden unpopular ideas implies the absence of content discrimination. But the majority held otherwise; that’s why these three Justices wrote separately. 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.
Judge Manion, concurring, cheerfully welcomed Reed, which he thought clarified the tension between Ward v. Rock againstRacism and it’s content-based regulation doctrine.
I join the opinion of the court in full, but write separately to underscore the significance of the Supreme Court’s recent decision in Reed v. Town of Gilbert, which held that a speech regulation targeted at specific subject matter is content-based even if it does not discriminate among viewpoints within that subject matter. 135 S. Ct. 2218, 2230 (2015). Reed injected some much-needed clarity into First Amendment jurisprudence and, in doing so, should eliminate the confusion that followed from Ward v. Rock Against Racism, 491 U.S. 781 (1989). While Ward is well-recognized as the Court’s seminal time, place, and manner First Amendment case, it also described a standard for content- neutrality that was in tension with the Court’s developing content-based regulation of speech doctrine. Reed resolved this uncertainty.
Reed saw what Ward missed—that topical 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. 135 S. Ct. at 2228, 2230. Few regulations will survive this rigorous standard.
Reed could be the sleeper of last term, and have really far-reaching effects.
Update: Judge Manion wrote a 20-page dissent to the original panel decision.
Today the court holds that a panhandler who asks a passerby for money in the downtown historic district of the City of Springfield commits a crime and may face criminal prosecution for this simple request. This conclusion is alien to our First Amendment jurisprudence. Accordingly, I do not join the opinion of the court because the City of Springfield’s panhandling ordinance is a content-based regulation of speech, subject to strict scrutiny. By concluding that the ordinance is content-neutral, the court misapplies the Supreme Court’s content-based regulation jurisprudence. Consequently, I respectfully dissent.
He was vindicated.