Can a municipality regulate unattended donation collection boxes without interfering with constitutionally protected speech or expressive conduct? Yes, says a federal appeals court.

In 2015, the city of Oakland, Calif., enacted an ordinance creating a comprehensive licensing scheme governing the operation of unattended donation collection boxes (UDCBs) within city limits.

The ordinance defines UCDBs as "unstaffed dropoff boxes, containers, receptacles, or similar facility that accept textiles, shoes, books and/or other salvageable personal property items to be used by the operator for distribution, resale, or recycling." The ordinance makes it "unlawful to place, operate, maintain or allow a UDCB on any real property . . . [without] an annually renewable UDCB permit from the City."

To obtain a permit, a property owner or operator must pay a $535 application fee, propose a site plan, and obtain at least $1 million liability insurance. The annual license renewal fee is about $250. The ordinance restricts box location and size, requires specific periodic maintenance, and forbids placing a UDCB within one thousand feet of another such box.

Recycle for Change (RFC), a nonprofit corporation, challenged the ordinance as inconsistent with the First Amendment. It filed suit in federal district court seeking a preliminary injunction against enforcement of the ordinance, which the court denied. On appeal, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the denial, holding that, even if UDCBs constituted protected speech or expressive conduct, RFC was unlikely to succeed on the merits of its First Amendment claim.

The panel found that the ordinance does not, by its terms, discriminate on the basis of content. Furthermore, it found no evidence that the city enacted the ordinance intending to burden RFC's message of charitable solicitation or out of any disagreement with that message. Notably, the panel held that the narrowly tailored ordinance plainly served important governmental interests unrelated to the suppression of protected speech, and left RFC with alternative means by which it could express its message.

When a regulation is challenged under the First Amendment, a court’s first obligation is to determine whether the regulation implicates protected expression. Here, the appeals court assumed that charitable solicitations are protected speech and that the ordinance affects RFC's ability to communicate its charitable solicitations message on private property.

Next, a court must ask whether the regulation is content-based or content neutral. A content-based law targets speech because of the topic discussed or the idea or message expressed. In effect, does the regulation of speech overtly draw distinctions based on what the speaker communicates? The appeals court found the ordinance to be content neutral because it does not, on its face, discriminate on the basis of the message.

RFC unsuccessfully argued that the ordinance is content based because an enforcing officer would have to examine a container's message and determine whether the container solicits charitable donations to determine whether a receptacle is subject to the ordinance's requirements. “The Ordinance's application is not limited to UDCBs soliciting charitable donations,” the opinion stated. “It applies to any unattended structure that accepts personal items ‘for distribution, resale, or recycling.’ * * * To enforce the Ordinance, an officer need only determine whether (1) an unattended structure accepts personal items and (2) the items will be distributed, resold, or recycled.”

Moreover, the ordinance does not discriminate based on any message -- whether by targeting speech written on the boxes or by targeting the substantive content of the boxes' inherent expressive component. “Instead,” the opinion continued, “the Ordinance regulates the unattended collection of personal items for distribution, reuse, and recycling, without regard to the charitable or business purpose for doing so . . . conduct [that] is neither expressive nor communicative.”

However, even where a court concludes that an ordinance is content neutral, it still must ask whether there is evidence that the government intended to burden the message. Here, the record did not support the contention that the city passed the ordinance to burden the message expressed by RFC's containers. “The Ordinance,” the appeals court found, “can be justified by [the city council’s] concern that UDCBs attract illegal dumping, scavenging, and graffiti, and had been placed in a manner that tended to harm the safety of drivers and pedestrians, and . . . to promote the health, safety, and/or welfare of the public by providing minimum blight-related performance standards for the operation" of UDCBs.”

Finally, the court looked at whether that the challenged regulation (a) plainly serves important governmental interests unrelated to the suppression of protected speech, (b) is narrowly tailored, and (c) leaves alternative avenues of communication for RFC to express its message. The ordinance passed these tests.

“The Ordinance combats blight, illegal dumping, and graffiti by requiring a thousand feet of distance between UDCBs operations,” the appeals court found. According to documents produced by the city, "clustering of UDCBs can create the appearance of an informal dumping area and attract unintended items such as couches, appliances, and electronics * * * such distances requirements are common to prevent secondary effects produced by other kinds of operations that generate waste or are the focus of undesirable, nuisance-related activities." In addition, the thousand-feet-distance requirement was determined not to be substantially broader than necessary to achieve the goal of combating blight, dumping, and graffiti, and without that requirement, those negative secondary effects, together with traffic-related dangers, would be worse.

As the appeals court saw it, RFC has reasonable alternative methods to express its charitable solicitation message in Oakland. “RFC may continue to operate UDCBs pursuant to the Ordinance's requirements, and it also may solicit charitable donations in ways other than operating an unattended collection box.”

Recycle for Change v. City of Oakland, No. 16-15295, 9th Cir., May 9, 2017

Barry Shanoff is a Bethesda, Md., attorney and general counsel of the Solid Waste Association of North America.