Restricting Content Without Restricting Content: Is Springfield’s Anti-Panhandling Ordinance Truly “Content-Neutral?”

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

Springfield, Illinois enacted an ordinance that prohibits panhandling within the city’s downtown historical district—an area that comprises “less than 2% of the City’s area but contain[s] its principal shopping, entertainment, and governmental areas, including the Statehouse and many state-government buildings.”[1] “The ordinance defines panhandling, in pertinent part, as [a]ny solicitation made in person . . . in which a person requests an immediate donation of money or other gratuity.”[2] The ordinance does, however, permit the use of signs with written requests for donations, as well as requests for donations at a later time.[3]

Plaintiffs, the recipients of citations for violating the ordinance, sought a preliminary injunction to prevent enforcement of the ordinance.[4] When considering whether to grant or deny a preliminary injunction, a court must consider, among other factors, whether plaintiffs are “likely to succeed on the merits.”[5] Here, the question of the plaintiffs’ “likely success on the merits” hinged upon the distinction between content-neutral and content-based restrictions on free speech.

While the Seventh Circuit Court of Appeals previously held constitutional another city’s anti-panhandling ordinance, the Court had yet to answer the question of whether such ordinances were content-neutral or content-based.[6] The former is reviewed more leniently and usually permitted, while the latter is subject to strict scrutiny review and often struck down as unconstitutional.[7] Thus, how the restrictive ordinance is legally classified is usually indicative of whether the court will grant or deny plaintiffs’ preliminary injunction motion.

With regard to the Springfield Municipal Ordinance, the Seventh Circuit affirmed the district court’s denial of the plaintiff’s motion for a preliminary injunction, finding the ordinance a content-neutral restriction on the time, place, and manner of a panhandler’s speech.[8] The reasoning behind court’s holding, however, is unconvincing. Instead, the court’s dissenting opinion, which found the restriction content-based and thus subject to strict scrutiny review, is a more sound and persuasive legal argument.

The Seventh Circuit’s Majority Opinion: A Content-Neutral Ordinance

The Seventh Circuit affirmed the denial of the plaintiffs’ preliminary injunction motion on the grounds that the ordinance was content-neutral and that the ordinance was likely to be considered a constitutional governmental restriction of speech.[9] Writing for the majority, Judge Easterbrook explained the two types of content-based regulations previously identified by the Supreme Court: those that “restrict[] speech because of the ideas it conveys” and those “that restrict speech because the government disapproves of its message.”[10] However, the Court reasoned, a panhandler’s immediate request for donations “does not express an idea or message about politics, the arts, or any other topic of which the government may seek to throttle expression in order to protect itself or a favored set of speakers.”[11] Thus, “[i]t is hard to see an anti-panhandling ordinance as entailing either kind of [content-based] discrimination.”[12]

Second, the Seventh Circuit reasoned that the ordinance cannot be content-based because “[t]he ordinance is indifferent to the solicitor’s stated reason for seeking money, or whether the requester states any reason at all.”[13] Third, that the ordinance permits the use of signs, the Court found, was a fortiori evidence that the ordinance regulates not the content of speech, but the manner in which the speech is made.[14] Furthermore, the triggering characteristic of the prohibitive ordinance is not the content of what is said, but the location “where a person says something (in the downtown historical district)”—a trait found in content-neutral, time, place, manner restrictions.[15] Thus, the Court found the ordinance to be content-neutral and upheld the district court’s denial of a preliminary injunction.

The Seventh Circuit’s Dissenting Opinion: A Clearly Content-Based Ordinance

Judge Manion’s dissenting opinion concluded otherwise and would have held that the ordinance is a content-based regulation.[16] First, Judge Manion asserted that, unlike content-neutral restrictions that can be enforced without reference to the content of the speech, the ordinance cannot be enforced without an authority figure listening to and comprehending the content contained within the individual’s spoken words.[17]

Second, Judge Manion asserted that the majority inappropriately dismissed the content contained within a panhandler’s speech by stating that panhandling “does not express an idea or message about politics, the arts, or any other topic of which the government may seek to throttle expression in order to protect itself or a favored set of speakers.”[18] While panhandlers are unlikely to supplement their verbal requests for immediate donations with their own thoughtful, yet provocative, critiques of “the arts,” a panhandler’s speech, Judge Manion argued, “may communicate important political or social messages in their appeals for money, explaining their conditions related to veteran status, homelessness, unemployment, and disability . . . .”[19] Although “[panhandlers] messages cannot always be easily separated from their need from money,” that does not mean that their verbal request for money contains no message or idea about politics and socio-economics.[20]

Lastly, Judge Manion argued that the city’s ordinance is “content-based because it advantages commercial speech over charitable speech.”[21] While the ordinance bans an individual from making a verbal request for a monetary donation, the ordinance permits that same individual to make a verbal request to trade something for money.[22] “Thus, the City’s ordinance leaves commercial speech comparatively unregulated, but prohibits a type of local speech that has traditionally enjoyed greater constitutional protections—that is, speech soliciting charitable activity.”[23] Thus, Judge Manion would have held the ordinance to be content-based and granted the plaintiffs’ preliminary injunction on the grounds that the ordinance would not likely satisfy strict scrutiny review and that the plaintiffs would therefore have a higher likelihood of succeeding on the merits.[24]

The Springfield Ordinancfae Is a Content-Based Restriction

The majority opinion’s rationale—that the ordinance content-neutral—is far less convincing than that of Judge Manion’s dissent, which would have held the ordinance to be content-based. While the majority opinion is correct that the ordinance involves a restriction on specific type of speech in a narrow and specific location, this does not automatically render the ordinance a content-neutral, time-place-manner restriction.[25] And while the ordinance’s restriction on the location of the speech is of expressed significance in its application, the crux of the law falls upon the content of the speech. For without knowing the content of what is said, the ordinance cannot be enforced.

The majority opinion attempts to solve this issue by stating that, because “[t]he ordinance is indifferent to the solicitor’s stated reason for seeking money, or whether the requesters states any reason at all,” the ordinance is neutral to all verbal requests for immediate donations.[26] This reasoning misses the point. That the ordinance applies to all verbal requests for immediate donations is not the issue, but rather that the ordinance requires an officer to monitor the speech of others to enforce the ordinance based on the content of what is said.[27] If the ordinance truly were a content-neutral speech restriction, then enforcement of the ordinance would rest on not what the panhandler says, but where, when, and how the panhandlers says it. Because the what is more important than the where, when, and how, the law restrict the content of speech, not the manner in which it is spoken.

Thus, Springfield’s ordinance is content-based. The Seventh Circuit should have considered the preliminary injunction motion under a content-based lens. In doing so, the court would have subjected the ordinance to strict scrutiny review, thus creating a higher likelihood of the plaintiffs’ success on the merits and a preliminary injunction against the law.


[1] Otterson v. City of Springfield, 768 F.3d 713, 714 (7th Cir. 2014).

[2] Id. at 718 (Manion, J., dissenting) (quoting §131.06(a)(1)) (emphasis added) (internal quotations omitted).

[3] Id. at 714.

[4] Id. at 714, 723.

[5] Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of the preliminary relief, that the balance of equities tip in his favor, and that an injunction is in the public interest.”) (emphasis added).

[6] Otterson, 768 F.3d at 714 (referencing Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000) as precedent “which held that an anti-panhandling ordinance in Indianapolis, Indiana, is constitutional but did did not reach (because the parties did not present) the question whether that ordinance is content-based) (emphasis added).

[7] Id. at 717 (“The disagreement within the Court . . . about how to distinguish a content-based from a content-neutral law . . . shows that it is difficult to be confident about how the line between subject-matter (usually allowed) and content-based (usually forbidden) distinctions is drawn”).

[8] Id. at 714, 717.

[9] Id. at 717-718 (“Evaluated by the standard for time, place, and manner restrictions[,] Springfield’s ordinance is within the power of state and local government”).

[10] Id. at 717; see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 643 (1994); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 27-28 (2010).

[11] Id.

[12] Id.

[13] Id.

[14] See id.

[15] Id. (emphasis in original) (internal quotations omitted).

[16] Id. at 718 (Manion, J., dissenting).

[17] Id. at 721 (“A police officer seeking to enforce the City’s ordinance must listen to what the speaker is saying in order to determine whether the speaker has violated the ordinance”).

[18] See id. at 722, 717.

[19] Id. at 722 (Manion, J., dissenting) (citing Gresham v. Peterson, 225 F.3d 899, 904 (7th Cir. 2000).

[20] Id. (Manion, J., dissenting) (citing Gresham v. Peterson, 225 F.3d 899, 904 (7th Cir. 2000).

[21] Id.

[22] See id. (“The City’s ordinance facially prohibits someone from vocally communicating the message, “I want money,” while allowing an identically situated speaker to communicate the message “I want money, and I will give you something of value in return.”)

[23] Id.

[24] Id. at 723

[25] See id. at 717 (“We do not profess certainty about our conclusion that the ordinance is content-neutral”).

[26] Id. at 717.

[27] Id. at 721 (“[T]he officer must determine on which side of at least three different verbal distinctions the speech falls when evaluating whether the ordinance has been violated:” (1) “request for money or other gratuity (potentially a violation) or merely a request for the listener’s time, signature, or labor (not a violation),” (2) “request for an immediate transfer of money (potentially a violation) or merely a request for the transfer of money at a future date (not a violation),” and (3) “request for a charitable donation (potentially a violation) or merely a request for a commercial transaction (not a violation)”).

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