Recently, a federal appellate court determined that an Illinois municipality’s anti-panhandling ordinance was unconstitutional. Specifically, the ordinance in question prohibited panhandling in the municipality’s “downtown historic district.” The area in question only constituted two percent of the municipality, but contained the principal shopping, entertainment, and governmental areas. In prohibiting panhandling, the ordinance defined the act as an oral request for an immediate donation. However, signs requesting money are allowed, along with oral pleas for donations at a later time.

At issue in this case was whether the ordinance was valid as a content-neutral regulation of speech. In answering in the negative, the federal appellate court relied on a recent United States Supreme Court case dealing with the First Amendment, Reed v. Town of Gilbert. Previously, courts have interpreted unconstitutional content-based regulations in two areas: (1) a regulation that restricts speech because of the idea it conveys, and (2) a regulation that restricts speech because the government disapproves of its message. Under this old standard, the appellate court found that the municipality’s ordinance was valid, as it only regulated the subject matter rather than content or viewpoint.

However with Reed, the Supreme Court held that the “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” It further went on to state that “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints with that subject matter.” The federal appellate court further stated that the effect of Reed was an eradication of any distinction between content regulation and subject matter regulation.

In holding the municipality’s panhandling statute to be unconstitutional, the appellate court determined that the ordinance was an invalid subject matter regulation pursuant to the principles in Reed. Specifically, the appellate court held that “[a]ny law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.” Because the parties stipulated that the issue rested with the content neutrality of the ordinance, the appellate court did not even address whether a “compelling justification” existed.

As a result, municipalities should express caution whenever passing an ordinance that regulates the subject matter of speech.

David W. McArdle

Authors: David McArdle, Jacob Caudill