February 25, 2013
Is Anti-Solicitation Ordinance Content-Based?
The Fourth Circuit ruled last week in Clatterbuck v. City of Charlottesville that a lower court erred in dismissing a free speech challenge to Charlottesville's anti-solicitation ordinance. The court remanded the case for further proceedings.
The ruling means that the case will go back to the district court to determine whether the City had an intent to censor speech in adopting the ordinance. If so, the ordinance will be subject to strict scrutiny analysis (and almost certainly be struck); if not, it'll get the test for time-place-manner regulations in a public forum (and likely be upheld, at least by the district court, since it already upheld it under this test).
The case tests Charlottesville's ordinance that bans panhandling--solictation for immediate donation of anything of value--in a particular area on the Downtown Mall. The lower court granted the City's motion to dismiss the case, ruling that the ordinance was a content-neutral time-place-manner regulation on speech. The lower court came to this conclusion based in part on testimony at a city council meeting in favor of the ordinance, which it said showed that the City adopted the ordinance for content-neutral reasons (safety, and the like). The testimony was not part of the record on the City's motion to dismiss.
The Fourth Circuit reversed. It said that under its pragmatic approach to content neutrality, it looks both to the face of the ordinance and to the "censorial intent" behind it. A challenger must show both in order to trigger strict scrutiny analysis of the ordinance.
Here, the court ruled that the ordinance is content-based on its face, because it distinguishes between solicitation of immediate donations and solicitation of donations in the future. But it couldn't determine from the record on a motion to dismiss whether there was also "censorial intent." And it ruled that the district court's evidence of censorial intent--the testimony at the city council meeting--shouldn't have been considered on a motion to dismiss (which wasn't converted to a motion for summary judgment).
The court said that there wasn't enough evidence in the record at this early stage for it to determine censorial intent, and it remanded the case for further proceedings.
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