Ninth Circuit Addresses Unattended Collection Bins and Upholds Oakland’s Ordinance as Content Neutral
In the recently decided Recycle for Change v. City of Oakland case, the Ninth Circuit addressed the issue of regulating unattended collection bins (“collection bins”) and found the challenged Ordinance passed constitutional muster. The Ninth Circuit’s opinion provides a framework for First Amendment analysis regarding this new mode of solicitation in the wake of the Supreme Court’s rigid test for determining content-neutrality articulated in Reed v. Town of Gilbert. The Ninth Circuit grappled with application of the Reed content-neutrality test in regards to regulation of collection bins and attempted to synthesize decisions issued by sister circuits in this arena, including the Sixth Circuit’s contrary decision in Planet Aid v. City of St. Johns. While the Ninth Circuit’s opinion focuses on Oakland’s regulation of collection bins, it also signals a generally more practical approach by the Ninth Circuit to applying the Supreme Court’s rigid content-neutrality test called out in Reed. Equally important, the Ninth Circuit assumed without any analysis, that the First Amendment was at play because Oakland had not disputed such at the lower court level. A review of the panel argument reveals that this is an issue that municipalities should rigorously pursue when moving forward with any collection bin regulations.
In Recycle for Change, a non-profit challenged Oakland’s Ordinance which requires any property owner with a collection bin on its property to obtain an annual permit and imposes a 1000 feet separation requirement between collection bins. The Ordinance justifies these requirements based on health and safety issues from litter, illegal dumping, and graffiti. Recycle for Change challenged the Ordinance as a violation of its First and Fourteenth Amendment rights under the United States Constitution and sought a preliminary injunction to prohibit the Ordinance’s enforcement, which the district court denied. Recycle for Change appealed only its First Amendment claims and argued that the Ordinance was content-based because it required the enforcing officer to read the information on the collection bin to determine if it was a charitable bin.
The Ninth Circuit assumed (without deciding) that regulation of these collection bins posed First Amendment concerns. The Court found that Oakland’s Ordinance applies to all donation bins, regardless of whether they are dedicated for profit or charitable purposes. With that in mind, the Court viewed the issue as whether “the activity of collecting, distributing, or recycling personal items . . . constitute[s] ‘communicative content’ against which any hint of discrimination should trigger strict scrutiny?” The Court found that it did not.
Municipalities should make special note of the Court’s discussion regarding the “enforcing officer” test for determining whether a regulation is content-based. The Ninth Circuit explained that the Ordinance at issue is not rendered content-based merely because it may require enforcing officers to determine if the collection bin was intended to collect, distribute, or recycle personal items. Instead, the Court cited to the Supreme Court’s Hill v. Colorado case and its own Berger v. Seattle decision to support a common sense approach to applying the “officer must read it” test. This discussion by the Ninth Circuit should be particularly helpful to municipalities looking at the legality of their solicitation or panhandling regulations.