John M. Baker and Katherine M. Swenson

On November 6th, the Eighth Circuit upheld an injunction against Arkansas's revised statutory prohibition of panhandling, but split on the question of whether the district court should have enjoined the enforcement of the prohibition on a statewide basis. The merits ruling is the latest in a series of decisions invalidating typical panhandling ordinances in the wake of a 2015 decision of the U.S. Supreme Court (Reed v. Town of Gilbert, 135 S. Ct. 2218) that embraced a broader view of content discrimination. But the dissent of Judge David Stras on the question of whether the state should have been barred from enforcing the law against "everyone else" may increase the chances of Supreme Court review.

Since the 1980s, the Supreme Court has treated asking for charitable donations as protected First Amendment activity. Sec'y of State of Maryland v. Joseph Munson Co., 467 U.S. 947 (1984); Vill. of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980). But until 2015, lower courts were split on the question of whether panhandling ordinances are content-based laws that are subject to strict scrutiny. Although the Second, Fourth, Sixth, and Ninth Circuits had invalidated such laws (Speet v. Schuette, 726 F.3d 867 (6th Cir. 2013); Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013); ACLU v. Las Vegas, 466 F.3d 784 (9th Cir. 2006); Loper v. N.Y. City Police Dep't, 999 F.2d 699 (2d Cir. 1993)), other courts of appeals—including the First Circuit, in a decision written by retired Justice Souter, and the Eighth Circuit—had upheld such laws (Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014) (Souter, J.); see also Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000); Smith v. City of Fort Lauderdale, 177 F.3d 954 (11th Cir. 1999); ISKCON of Potomac v. Kennedy, 61 F.3d 949 (D.C. Cir. 1995); ACORN v. St. Louis Cty., Mo., 930 F.2d 591 (8th Cir. 1991)).

Reed v. Town of Gilbert was not a panhandling case, but it attempted to reconcile two different views of content neutrality: a literal view (under which a law is content-based if one must read the expression to apply the law) and a pragmatic view (under which some laws not motivated by the suppression of speech could be deemed content-neutral). In an opinion by Justice Clarence Thomas, the Supreme Court embraced the literal view, thus calling into question many types of laws that had been challenged and upheld under the pragmatic view of content neutrality.

Immediately after Reed, the Supreme Court granted certiorari in unsuccessful challenges to panhandling ordinances in the Seventh and First Circuits and remanded them for consideration in light of Reed. On remand, courts invalidated the ordinances under Reed. Similar district court rulings in Colorado, Florida, Louisiana, and Missouri followed. Then, in Arkansas, Senior Judge Billy Roy Wilson enjoined enforcement of Arkansas's recently revised panhandling statute (which prohibited certain acts "for the purpose of asking for anything as a charity or a gift"). Rodgers v. Bryant, 301 F. Supp. 3d 928, 930 (E.D. Ark. 2017). Arkansas appealed to defend its statute, culminating in a September 2018 oral argument at St. Louis University School of Law before Chief Judge Levander Smith, Senior Judge Michael Melloy, and one of the court's newest members, Judge David Stras (formerly of the Minnesota Supreme Court).

After oral argument, another Arkansas federal judge (Senior Judge Robert T. Dawson)  enjoined enforcement of a Hot Springs ordinance that generally prohibited interacting "physically with an occupant of a motor vehicle that is in operation on a public roadway or street for any purpose," with exceptions for life-threatening emergencies, roadside assistance, and emergency personnel in their official duties. Rodgers v. Stachey, 382 F. Supp. 3d 869, 875 n.4, 884-85 (W.D. Ark. 2019). The City of Hot Springs did not appeal that decision.

On Nov. 6, 2019, the Eighth Circuit decided the constitutionality of the Arkansas statute. All three judges agreed that the statute was content-based because "[i]t applies only to those asking for charity or gifts, not those who are, for example, soliciting votes, seeking signatures for a petition, or selling something." Rodgers v. Bryant, No. 17-3219, ___ F.3d ___, ___, slip op. at 7 (8th Cir. Nov. 6, 2019). Although the statute also included limiting language that tended to focus on aggressive behavior, the court held that "these limitations do not transform the law into a content-neutral restriction." Id. Nor did such limitations enable the law to survive strict scrutiny, because it was deemed underinclusive for singling out charitable (but not political or commercial) solicitation. Id., slip op. at 8-9.

The panel diverged over whether the district court abused its discretion by temporarily enjoining statewide enforcement of what the district court had termed a "plainly unconstitutional" statute. Judge Stras, a former law clerk for the Supreme Court's best-known opponent of nationwide injunctions (Justice Thomas) (see, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424 (2018) (Thomas, J., concurring); Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1225 (2015) (Thomas, J., concurring)), drew on the English Court of Chancery's authority to do no more than issue a tailored injunction "to the particular harms that the moving party faced." Rodgers v. Bryant, slip op. at 15 (Stras, J., concurring in part and dissenting in part). Judge Stras concluded: "If the Court of Chancery could not grant a universal injunction in 1789, then neither can the district court today." Id., slip op. at 21 (Stras, J., concurring in part and dissenting in part). The majority, in response, contrasted that narrow view with the approach taken by the Supreme Court in upholding nationwide preliminary injunctions of laws that pose a danger of seriously chilling protected speech. Id., slip op. at 11–12.

In the 13 months between oral argument and the Eighth Circuit's decision, at least two trial courts upheld local laws that affected (among other things) panhandling but did not differentiate based on the subject matter of the speech. In McCraw v. City of Oklahoma City, the district court upheld a ban on standing, sitting, or staying in any portion of a highway open for use by vehicular traffic or on medians if the speed limit is 40 or higher (with a few exceptions). No. CIV-16-352 (W.D. Okla. Dec. 19, 2018). In Evans v. Sandy City, a divided Tenth Circuit affirmed a ruling that declined to enjoin enforcement of an ordinance that forbids any person "to sit or stand, in or on any unpaved median, or any median of less than 36 inches for any period of time." 928 F.3d 1171, 1175, 1183 (10th Cir. 2019). In both cases, the courts rejected the arguments that the laws were content-based, and held they were permissible time, place and manner restrictions. And a federal judge in New Mexico, considering the constitutionality of an ordinance similar to the Hot Springs Ordinance, declined to follow Judge Dawson's conclusion that the Hot Springs ordinance was content-based, explaining that it "simply cannot agree that the physical nature of an exchange is the content of that speech as well as the manner and method of speech." Martin v. City of Albuquerque, 396 F. Supp. 3d 1008, 1025 (D.N.M. 2019) (appeal pending).

John M. Baker and Katherine M. Swenson are attorneys at Greene Espel PLLP in Minneapolis.