Norton v. City of Springfield

• Citation: 806 F.3d 411
• Decision Date: 07 August 2015
• Docket Number: No. 13–3581.,13–3581.
• Parties: Don NORTON and Karen Otterson, Plaintiffs–Appellants, v. CITY OF SPRINGFIELD, ILLINOIS, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

806 F.3d 411

Don NORTON and Karen Otterson, Plaintiffs–Appellants,
v.
CITY OF SPRINGFIELD, ILLINOIS, et al., Defendants–Appellees.

No. 13–3581.

United States Court of Appeals, Seventh Circuit.

Aug. 7, 2015.

806 F.3d 411

Mark G. Weinberg, Law Office of Mark G. Weinberg, Adele D. Nicholas, Chicago, IL, Matthew A. Brill, Noel E. Miller, Matthew Murchison, Latham & Watkins LLP, Washington, DC, for Plaintiffs–Appellants.

Steven C. Rahn, Matthew Robert Trapp, Office of the Corporation Counsel, Springfield, IL, for Defendants–Appellees.

Opinion

EASTERBROOK, Circuit Judge.

Our first decision in this appeal concluded that Springfield's anti-panhandling ordinance does not draw lines based on the content of anyone's speech. Because the litigants agreed that the ordinance's validity depends on this issue, we affirmed the district court's decision. 768 F.3d 713 (7th Cir.2014). We deferred consideration of the petition for rehearing until the Supreme Court decided Reed v. Gilbert,––– U.S. ––––, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). Shortly after deciding Reed,the Court remanded Thayer v. Worcester,755 F.3d 60 (1st Cir.2014), a panhandling-ordinance decision on which our first opinion

806 F.3d 412

had relied, for further consideration in light of Reed.––– U.S. ––––, 135 S.Ct. 2887, –––L.Ed.2d –––– (2015). At our request, the parties filed supplemental memoranda discussing Reed. We now grant the petition for rehearing and apply Reedto Springfield's ordinance.

As our first opinion explained, § 131.06 of Springfield's Municipal Code

prohibits panhandling in its “downtown historic district”—less than 2% of the City's area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state-government buildings. The ordinance defines panhandling as an oral request for an immediate donation of money. Signs requesting money are allowed; so are oral pleas to send money later. Springfield evidently views signs and requests for deferred donations as less impositional than oral requests for money immediately, which some persons (especially at night or when no one else is nearby) may find threatening.

768 F.3d at 714. Plaintiffs contend that the ordinance's principal rule—barring oral requests for money now but not regulating requests for money later—is a form of content discrimination.

The panel disagreed with that submission for several reasons. 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.

Reedunderstands content discrimination differently. It wrote that “regulation of speech is content based if a law applies to particular speech because of the topic discussed orthe idea or message expressed.” 135 S.Ct. at 2227(emphasis added)....