Tuesday, November 29, 2016
Several well-established nonprofit organizations in Michigan found their longstanding holiday fundraising drives put on ice by the Michigan Attorney General. Media reports several planned fundraisers—such as fire fighters’ “fill the boot” drive for Muscular Dystrophy Association, or the Old Newsboys annual fundraiser—have already been shut down based on the Michigan Attorney General’s aggressive (and potentially unconstitutional) interpretation of a traffic law, while other organizations are worried about the potential consequences.
In a formal opinion, AG Schuette concluded that a state statute prohibiting the disruption of traffic prohibited solicitation of donations in or near roadways. In car-dependent Michigan, this is potentially a big deal that could make it harder for many nonprofits to reach their audiences using methods they have used for decades.
The law at issue prohibits interfering with traffic without "authority." To reach its broad conclusion that this prohibits roadside fundraisers, the AG’s opinion first assumes that any solicitation in or near a roadway—even at a red light or, say, on a deserted street—will impede the flow of traffic and therefore is prohibited. (The opinion does tack on an acknowledgement that “particular facts and circumstances” may vary from the assumption, but that’s unlikely to comfort charities trying to stay on the good side of the law. And, indeed, as noted above, law enforcement has already starting invoking the AG’s opinion to shut down charities’ planned fundraisers.) Second, the opinion further notes that pedestrians may be allowed in roadways at times and indeed, one can even sell goods in the street, but no authority permits charitable solicitation—the singular focus of the AG’s opinion. Does charitable solicitation pose a greater threat to traffic flow than the sale of goods?
The Michigan Attorney General’s opinion does raise real concern about risks to fundraising individuals from distracted drivers. But a blanket rule that attempts to preempt local jurisdiction’s authority to construct rules appropriate to local traffic patterns and risks, without any evidence that traffic flow is actually being harmed by charitable solicitation, is arguably much too clumsy.
Indeed, the AG’s opinion quickly dismisses a very difficult constitutional issue with such a broad ban lacking any apparent attempt at tailoring, or any evidence to support it. Charitable solicitation is protected free speech, and governments must tailor their bans based on real risks and evidence. (This is assuming the law, as interpreted, is content-neutral and invokes only intermediate scrutiny; to the contrary, however, by imposing a restriction on charitable solicitation that differs from business solicitation, the AG’s interpretation arguably places the law into content-based strict scrutiny under Reed v. Town of Gilbert, a level of scrutiny that the AG’s interpretation stands little chance of surviving.). Yet a state-wide ban that assumes charitable solicitation is presumptively damaging to flow of traffic is far broader than necessary, and fails to leave channels available for charities to reach their audience. Indeed, the Attorney General seems to have overlooked that federal courts of appeals have not looked favorably on similar restrictions. Cutting v. City of Portland, Maine, 802 F.3d 79 (1st Cir. 2015) (finding that city-wide ban on sitting or standing in medians was unconstitutional as applied to charitable solicitors); Reynolds v. Middleton, 779 F.3d 222, 225–26 (4th Cir. 2015).
Though it may bad news for “fill the boot” fundraisers and the Old Newsboys, perhaps the Attorney General’s opinion will generate revenue for one local nonprofit: the ACLU, which collected $35,000 in attorney’s fees in its successful challenge to Michigan’s state-wide prohibition on one form of charitable solicitation (“begging”). Indeed, Michigan got off relatively cheap in that settlement; the City of Portland paid $175,000 in attorney’s fees to the ACLU following its unsuccessful defense of a ban on pedestrians in medians, and two cities in Massachusetts face a legal bill of nearly $1.8 million following their unsuccessful efforts to restrict the where charitable solicitation can occur. So perhaps the Attorney General's effort to play Grinch will turn into a payday for some of Michigan's nonprofits, after all.
[Disclosure: I regularly volunteer for the ACLU of Ohio.]