The Right to Blight – Charitable Donation Bins, Freedom of Speech and the First Amendment

The next time you are sitting at a red light at a busy suburban intersection, instead of checking your smart phone, look out the window. Look beyond the other traffic, beyond the political signs, and beyond the fast food combo meal deal marquees. Chances are you will see a small, dumpster like container. Some have green recycle logos, some are decorated with American flags, some call for shoes, books and/or clothes; and some may be over-flowing with what can appear to be trash, broken furniture and torn plastic bags. You may see several bins lined up together in the corner of a parking lot. You may see a bin that appears abandoned on a vacant, weed-filled lot. However, once you notice the presence of these bins you will soon realize that they are everywhere. Almost every retail or commercial parking lot seemingly houses at least one of these shed sized charitable donation bins.  And each of them are likely subject to local zoning laws as well as strict freedom of speech protections afforded by the First Amendment of the U.S. Constitution.

Charitable Donation and Blight

Who cares about charitable donation bins? Local governments, property owners, charitable organizations and, it turns out, the U.S. Constitution. Why are they a problem? In some instances donation bins can contribute to unsightly blight and unpermitted dumping. Despite clear labels on the bins, some donators leave behind furniture, appliances and bicycles. Some operators of donation bins do not service them regularly and adequately, often resulting in bins overflowing with trash bags and boxes full of various items. Obviously, this can be a problem for local governments, business owners and neighborhoods. From the charitable donation industry perspective, there are nefarious operators that “dump and run” by placing their bins on both public and private property without owner permission. The bins will be left for a few days and by the time the owner or the local government notices and begins to proceed with removal; the bins are gone – taken to another location. Donation bins have also been stolen or hijacked – simply removed from their approved location and destroyed, relocated or never seen again.

Most bona fide donation bin operators welcome some type of regulatory scheme. Having regulations on books gives the operators a better sense of what is permitted and what is prohibited. Regulations also allow bin operators to better explain to potential host property owners the dynamics and purposes of their operations. More importantly, a well-structured and well-enforced regulatory framework can weed out those operators that are less genuine or less responsible for the maintenance and operation of their donation bins. However, the nature and extent of those regulations can lead to judicial and legal scrutiny that many never would have expected to apply to the solicitation of charitable donations by way of these roadside bins.

The Solicitation of Charitable Donations, Freedom of Speech and the First Amendment

As we all know, the First Amendment of the United States Constitution provides that Congress cannot pass a law “abridging the freedom of speech” of citizens of the United States. The Florida Constitution contains an analogous provision. A long line of Supreme Court cases have repeatedly held that the solicitation of charitable donations qualifies as a form of constitutionally protected speech. In Schaumburg v. Citizens for a Better Environment (https://supreme.justia.com/cases/federal/us/444/620/) the Supreme Court explained that:

“[c]haritable appeals for funds, on the street or door to door, involve a variety of speech interests – communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes – that are within the protection of the First Amendment.”

In Schaumburg, a local government had an ordinance prohibiting door-to-door or on-street solicitation of contributions by charitable organizations that did not use at least 75 percent of their receipts for “charitable purposes”. When the Village denied an application for a solicitation permit by Citizens for a Better Environment (“CBE”) because it could not meet the ordinance’s 75 percent requirement, CBE filed suit alleging violations of the First and Fourteenth Amendments and seeking declaratory and injunctive relief. The District Court granted summary judgment and the Court of Appeals affirmed, rejecting the argument of CBE that summary judgment was inappropriate because there was an unresolved factual dispute as to the true character of CBE’s organization due to the fact that CBE challenged the facial validity of the ordinance on First Amendment grounds. The appeals court concluded that even if the 75 percent requirement may be valid, it was unreasonable on its face because it barred solicitation by advocacy-oriented organizations even where the contributions would be used for salaries and costs of gathering and disseminating the charity’s relevant purpose.

What does Schaumburg allow?

With respect to whether a governmental entity may restrict these rights, the Schaumburg Court explained that an entity “may serve its legitimate interests, but it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms.” The Court made clear that a municipality’s interests “can be better served by measures less intrusive than a direct prohibition on solicitation.”

The Supreme Court has additionally held that the government can regulate the collection activities of nonprofits so long as the regulations are reasonable, meaning the regulation “must be done, and the restriction applied, in such a manner as not to intrude upon the rights of free speech and free assembly.” Another relevant Supreme Court case further provides that where a statute imposes a direct restriction on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State’s objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech, the statute is properly subject to facial attack.

The Constitutional Chill on Freedom of Speech

The source of the “chill” is the direct punishment of citizens, such as the Plaintiff, through fines for engaging in charitable solicitation. The Supreme Court has also noted that a statute that attempts to restrict speech must be narrowly tailored to achieve an important government interest without unnecessarily infringing on First Amendment rights.

How Charitable Donation Bins Became Protected

Two recent federal cases are particularly instructive. In the first, the Fifth Circuit addressed the appropriate standard of scrutiny when addressing public receptacles used to solicit charitable donations. In National Federation of the Blind of Texas, Inc. v. Abott, (https://caselaw.findlaw.com/us-5th-circuit/1574563.html) the State of Texas adopted an act requiring “for-profit entities” to make certain financial disclosures when collecting donated goods through “public donation receptacles”, when making telephone or door-to-door solicitations, and when making mail solicitations.

Freedom of Speech and Charitable Solicitation

Texas asserted that soliciting charitable donations was commercial speech and thus only required intermediate scrutiny, arguing the receptacles were no “more than a proposal of a commercial transaction: donate goods here.” The Court strongly disagreed, finding the speech interests in Schaumburg were clearly implicated. The Court explained: “A generous [citizen] who chooses to donate goods is thus faced with a marketplace of charitable options; the public receptacles are not mere collection points for unwanted items, but are rather silent solicitors and advocates for particular charitable causes. Contrary to Texas’s position, the public receptacles represent far more than an “upturned palm” or a mere “proposal of a commercial transaction [that says] donate goods here.” Rather, the donation bins’ solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues.” Consequently, the Fifth Circuit rejected the assertion that speech surrounding public donation receptacles was merely commercial speech.

The Planet Aid Case

In the second instructive case, the Sixth Circuit echoed the rule of law that charitable donation bins are charitable solicitations entitled to strong First Amendment protection as “speech advocating for charitable cause.” In Planet Aid v. City of St. Johns, (http://www.opn.ca6.uscourts.gov/opinions.pdf/15a0063p-06.pdf) the City of St. Johns appealed the District Court’s order preliminarily enjoining the enforcement of the city’s ordinance that bans outdoor, unattended charitable donation bins.

St. Johns’ Prohibition of Charitable Donation Bins “Misses the Mark”

Within the ordinance language itself, the city explicitly stated that the prohibition was to “protect the health, safety and welfare of the citizens of the city by preventing blight, protecting property values and neighborhood integrity, avoiding the creation and maintenance of nuisances and ensuring the safe and sanitary maintenance of properties.” The city’s ordinance further stated that “unattended donation boxes in the city may become an attractive nuisance for minors and/or criminal activity.” Finally, the ordinance stated that its intent was to “preserve the aesthetics and character of the community by prohibiting the placement of donation boxes.” The City of St. Johns argued that because attended or non-outdoor donation bins are allowed, its ordinance was not “complete” or “total” for purposes of characterizing the ordinance as content-based. The Court held that St. Johns’ argument “misses the mark” because the ordinance preemptively and prophylactically prevents all charities from operating outdoor, unattended donation bins within St. Johns in the interest of aesthetics and preventing blight. Such an ordinance “implies, without any evidence, that charities would be negligent in failing to conduct timely pickups of donated goods, in maintaining the appearance of the bins, etc.” The Court further stated that the St. Johns ordinance “assumes that lesser, content-neutral restrictions such as requiring weekly or bi-weekly pickups or inspections of all outdoor receptacles would be ineffective.”

Charitable Donation Bins, the First Amendment, and the City of Jacksonville

Closer to home, there is a perfect example of how a city’s attempt to eliminate the blight that sometimes comes with donation bins can run afoul of Constitutionally protected rights. In the summer of 2015, the City of Jacksonville enacted an ordinance completely banning donation bins. Jacksonville placed the prohibitive language in its zoning code. The effect of the ordinance was a complete ban on the placement of donation collection bins within Duval County, including off-site storage, while also implementing a removal and destruction plan with the ability to recover associated costs. In fact, the Jacksonville ordinance language was so strong that it prohibited the placement of “donation collection bins . . . in or on any lot, parcel or tract of land or body of water in any zoning district.”

A Case for Freedom of Speech: Go Green Charity Recyclers, Inc., v. the City of Jacksonville

Go Green Charity Recyclers, Inc., was directly impacted by Jacksonville’s ordinance and after unsuccessfully attempting to resolve the matter with city staff and leaders, filed suit in federal court. (https://nonprofitquarterly.org/2015/11/17/outlawed-nonprofit-owner-of-clothing-bins-sues-city-of-jacksonville/) Go Green initially sought a temporary restraining order to enjoin Jacksonville from enforcing its ordinance, but after the City agreed to temporarily stay enforcement of the ordinance pending a judge’s ruling, the motion became one for preliminary injunction.

The Federal Court’s Ruling in Go Green

In its Order, the U.S. District Court for the Middle District not only found that Go Green met the four prerequisites to secure a preliminary injunction, but specifically established “a substantial likelihood of success on its First Amendment claim based on the persuasive precedent of the Sixth Circuit’s recent decision in Planet Aid v. City of St. Johns”. The end result of the Go Green case was that the City Council of the City of Jacksonville repealed its donation bin ordinance in its entirety. In the months that followed, the City’s donation bin subcommittee struggled with crafting a regulatory scheme to address donation bins and some of the problems associated with them. Nevertheless, after the administration altered the mission of the parent committee, the issue now seems lost in the shuffle.

Charitable Donation Bin Regulations Elsewhere in Florida

Other Florida cities have likewise attempted to address the regulation of donation bins. In 2014, the Town of Davie issued a Request for Proposals for “Textile Recycling Franchise” that solicited proposals for the purpose of “[a]warding an exclusive franchise for a textile recycling program based Town-wide”. The proposal and the awarded franchise agreement define the bin size, types of recyclable materials, amount of franchise fee and seem to apply to public and private property alike. Regulations in Homestead, Florida, provide for one permit per non-profit organization, limit one donation “drop box” per parcel, and require a label to be affixed to the drop box listing the name of the permittee, the permit number and its effective date, along with the address and phone number of the permittee. Miami-Dade County restricts placement of donation collection bins to property owned and operated by a non-profit and requires that all bins be located at least seventy-five feet from any property line.  On the other hand, like Jacksonville had prior to the Go Green litigation, the City of Miami has a complete ban on the placement of donation bins in any zoning district of the city.

How to Regulate Charitable Donation Bins

So the ultimate question becomes, what type of regulatory scheme can be constitutionally crafted to effectively control the operation of charitable donation bins in Florida? Fortunately, there is a direct line of case law beginning with Schaumburg and ending with Planet Aid that clearly explains the origins of the application of strict scrutiny to the regulation of charitable donation bins. As seen in the cases, any such regulation must be narrowly tailored to serve appropriate interests while avoiding the “chill” on free speech. However, actually crafting and implementing a regulatory scheme that passes constitutional muster but still has enough teeth to effectuate a community’s interests in eliminating the blight that is so often associated with donation bins can be a very difficult task

While an outright ban is certainly unconstitutional, regulations preventing the placement of donation bins in residential zoning districts, or providing for setbacks from rightsof-way, traffic sight lines and property boundaries, are likely to survive scrutiny. Likewise, requiring that the donation bin operator provide evidence of property owner permission for the placement of a bin on his or her property is certainly permissible. However, is a requirement that the donation bin operator be a registered non-profit entity a regulation serving the interests of a community striving to eliminate blight? What is the connection between the corporate nature of the donation bin operator and its ability to properly operate and maintain a charitable donation bin? Is the fact that a donation bin operator makes a profit from its collection efforts mean that it cannot satisfy the interests of a local government? Similarly, is the requirement limiting the placement of one donation bin per parcel an infringement on free speech or a lawful effort to eliminate the proliferation of dumping?

Like any local government regulation, many variables come into play when crafting effective language. In the case of charitable donation bins this can involve the size of the bin, the method of accessing the bin (chute system or one-way door), frequency of emptying the bin, the actual identity and contact information of the bin operator, whether the bin is on wheels or is anchored to the ground, whether the bin is made of metal or wood, whether the bin is permanent or is serviced by a live person during certain hours, or how many bins any one operator may place within a city. That is just the language of the ordinance – which is always susceptible to challenge.

Moreover, very few cities have the financial resources and manpower to actually implement and enforce an ordinance as complicated and as multi-faceted as what a charitable donation bin regulation is apt to be. Many Florida code enforcement and compliance departments are understaffed and can barely keep up with commercial and residential code violations as it is. Adding an ordinance that requires the same staff to identify, inspect, report, prosecute and potentially take corrective action against is most likely more than they can handle.

If you are a local government, a business owner or a charitable operation, keep your eyes and ears open.

If you simply google, “charitable donation bins first amendment freedom of speech” you will see a myriad of articles, case reports, law firm success stories, local government codes, and op-eds on the topic.  Each of them has a number of different factual elements, including the language of the particular local code that may have been considered by a federal court.  Not unlike local codes regulating signage, this area of the law continues to change as both charitable organizations and local governments seek to implement regulations that can benefit each of them while serving the greater community.  Some local governments have been successful in creating a reasonable regulatory scheme in the eyes of the law.  And some charitable organizations have been successful in striking down those regulations that go beyond the protections afforded by the First Amendment.