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Full Opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-‐‑3581
DON NORTON and KAREN OTTERSON,
Plaintiffs-‐‑Appellants,
v.
CITY OF SPRINGFIELD, ILLINOIS, et al.,
Defendants-‐‑Appellees.
____________________
On Petition for Rehearing
____________________
DECIDED AUGUST 7, 2015
____________________
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Our first decision in this ap-‐‑
peal concluded that Springfield’s anti-‐‑panhandling ordi-‐‑
nance does not draw lines based on the content of anyone’s
speech. Because the litigants agreed that the ordinance’s va-‐‑
lidity depends on this issue, we affirmed the district court’s
decision. 768 F.3d 713 (7th Cir. 2014). We deferred considera-‐‑
tion of the petition for rehearing until the Supreme Court
decided Reed v. Gilbert, 135 S. Ct. 2218 (2015). Shortly after
deciding Reed, the Court remanded Thayer v. Worcester, 755
2 No. 13-‐‑3581
F.3d 60 (1st Cir. 2014), a panhandling-‐‑ordinance decision on
which our first opinion had relied, for further consideration
in light of Reed. 135 S. Ct. 2887 (2015). At our request, the
parties filed supplemental memoranda discussing Reed. We
now grant the petition for rehearing and apply Reed to
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 ordi-‐‑
nance 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 (es-‐‑
pecially at night or when no one else is nearby) may find threat-‐‑
ening.
768 F.3d at 714. Plaintiffs contend that the ordinance’s prin-‐‑
cipal 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 rea-‐‑
sons. 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 ordi-‐‑
nance less restrictive, which should be a mark in its favor.
We summed up: “The Court has classified two kinds of reg-‐‑
ulations as content-‐‑based. One is regulation that restricts
speech because of the ideas it conveys. The other is regula-‐‑
No. 13-‐‑3581 3
tion that restricts speech because the government disap-‐‑
proves 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.
Reed understands content discrimination differently. It
wrote that “regulation of speech is content based if a law
applies to particular speech because of the topic discussed or
the idea or message expressed.” 135 S. Ct. at 2227 (emphasis
added). Springfield’s ordinance regulates “because of the
topic discussed”. The Town of Gilbert, Arizona, justified its
sign ordinance in part by contending, as Springfield also
does, that the ordinance is neutral with respect to ideas and
viewpoints. The majority in Reed found that insufficient: “A
law that is content based on its face is subject to strict scruti-‐‑
ny regardless of the government’s benign motive, content-‐‑
neutral justification, or lack of ‘animus toward the ideas con-‐‑
tained’ in the regulated speech.” 135 S. Ct. at 2228. It added:
“a speech regulation targeted at specific subject matter is
content based even if it does not discriminate among view-‐‑
points within that subject matter.” Id. at 2230.
Three Justices concurred only in the judgment in Reed.
135 S. Ct. at 2236–39 (Kagan, J., joined by Ginsburg & Breyer,
JJ.). Like our original opinion in this case, these Justices
thought that the absence of an effort to burden unpopular
ideas implies the absence of content discrimination. But the
majority held otherwise; that’s why these three Justices
wrote separately. The majority opinion in Reed effectively
abolishes any distinction between content regulation and
subject-‐‑matter regulation. Any law distinguishing one kind
4 No. 13-‐‑3581
of speech from another by reference to its meaning now re-‐‑
quires a compelling justification.
Our observation, 768 F.3d at 717, that Springfield has at-‐‑
tempted to write a narrowly tailored ordinance now pertains
to the justification stage of the analysis rather than the classi-‐‑
fication stage. But Springfield has not contended that its or-‐‑
dinance is justified, if it indeed represents content discrimi-‐‑
nation. As we said at the outset, the parties have agreed that
the ordinance stands or falls on the answer to the question
whether it is a form of content discrimination. Reed requires
a positive answer.
The judgment of the district court is reversed, and the
case is remanded for the entry of an injunction consistent
with Reed and this opinion.
No. 13-3581 5
MANION, Circuit Judge, concurring.
I join the opinion of the court in full, but write separately to
underscore the significance of the Supreme Court’s recent
decision in Reed v. Town of Gilbert, which held that a speech
regulation targeted at specific subject matter is content-based
even if it does not discriminate among viewpoints within that
subject matter. 135 S. Ct. 2218, 2230 (2015). Reed injected some
much-needed clarity into First Amendment jurisprudence and,
in doing so, should eliminate the confusion that followed from
Ward v. Rock Against Racism, 491 U.S. 781 (1989). While Ward is
well-recognized as the Court’s seminal time, place, and manner
First Amendment case, it also described a standard for content-
neutrality that was in tension with the Court’s developing
content-based regulation of speech doctrine. Reed resolved this
uncertainty.
Ward stated that “[t]he principal inquiry in determining
content neutrality ... is whether the government has adopted a
regulation of speech because of disagreement with the message
it conveys.” 491 U.S. at 791. Over time, courts interpreted this
statement to mean that it did not matter if a law regulated
speakers based on what they said, so long as the regulation of
speech was not imposed because of government disagreement
with the message. Under this approach, if an ordinance was
not viewpoint-based, then it was content-neutral. For example,
a local government’s decision to eliminate religious speech or
abortion-related speech was considered content-neutral
because it was not viewpoint-based—as, for instance, a
regulation prohibiting “Christian speech” or “pro-life speech”
was and remains. Reed eliminates this distinction. 135 S. Ct. at
2227 (concluding that a speech regulation is content-based if it
prohibits the topic discussed or the idea or message expressed);
6 No. 13-3581
ante at 3 (“Reed effectively abolishes any distinction between
content regulation and subject-matter regulation.”). On this
point, Reed overrules Ward.
Reed saw what Ward missed—that topical censorship is still
censorship. Rejecting the idea that the government may
remove controversial speech from the marketplace of ideas by
drafting a regulation to eliminate the topic, Reed now requires
any regulation of speech implicating religion or abortion to be
evaluated as content-based and subject to strict scrutiny, just
like the aforementioned viewpoint-based restrictions covering
more narrow contours of speech. 135 S. Ct. at 2228, 2230. Few
regulations will survive this rigorous standard.
Because the court has faithfully applied Reed to the City’s
ordinance, I concur.