Planet Aid v. City of St. Johns, MI

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0063p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

PLANET AID, a Massachusetts nonprofit corporation, ┐
Plaintiff-Appellee, │
│
│ No. 14-1680
v. │
>
│
CITY OF ST. JOHNS, MI, a Michigan municipal │
corporation, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids
No. 1:14-cv-00149—Janet T. Neff, District Judge.
Argued: March 5, 2015
Decided and Filed: April 6, 2015

Before: GRIFFIN and STRANCH, Circuit Judges; and STEEH, District Judge.*

_________________

COUNSEL

ARGUED: Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for
Appellant. Daniel P. Dalton, DALTON & TOMICH, PLC, Detroit, Michigan, for Appellee. ON
BRIEF: Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellant.
Daniel P. Dalton, DALTON & TOMICH, PLC, Detroit, Michigan, for Appellee.
_________________

OPINION
_________________

GRIFFIN, Circuit Judge. In this First Amendment case, defendant City of St. Johns,
Michigan appeals the district court’s order preliminarily enjoining the enforcement of the City’s

*
The Honorable George Caram Steeh, Senior United States District Judge for the Eastern District of
Michigan, sitting by designation.

1
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 2

Ordinance #618 which bans outdoor, unattended charitable donation bins. We hold that the
ordinance is a content-based regulation of protected speech, and that Planet Aid has
demonstrated a strong likelihood of success on the merits of its constitutional claim.
Accordingly, and for the reasons that follow, we affirm the district court’s preliminary
injunction.

I.

Plaintiff Planet Aid is a nonprofit charitable organization established in Massachusetts.
Its purpose is to “work to strengthen and organize communities, reduce poverty and promote
small enterprise development, support sustainable local food production, improve access to
training and quality education, and increase health awareness and encourage healthy lifestyles.”
To that end, Planet Aid solicits donations of clothing and shoes through its unattended, outdoor
donation bins. Planet Aid distributes the items collected from the bins to organizations in other
countries.

With the consent of the property owners, Planet Aid places its donation bins on the
property of private businesses. It chooses locations that are “easily visible and accessible by
individuals looking to deposit donations in the bins.” According to Planet Aid, its
“representatives generally visit each of its donation bins on a weekly basis in order to collect the
donated goods and avoid bin overflow and goods accumulating outside the bins.” Its bins are
labeled with contact information so members of the public can report to Planet Aid if the bins are
full.

In December 2012, the City did not have an ordinance regulating charitable donation
bins. At that time, Planet Aid placed two of its donation bins on private property within the City:
one at a former Save-a-Lot grocery store at 1001 S. BR US Highway 27, and the other at a
Marathon gas station at 711 West State Street.

On January 14, 2013, the City sent Planet Aid a letter claiming that the “clothing
donation containers have been found to create a nuisance as people leave boxes and other refuse
around the containers.” It directed Planet Aid to remove the bins by January 23. The letter
stated further that if the bins were not removed by January 23, the City would remove them.
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 3

In response to the letter, Planet Aid’s attorney, Dan Dalton, emailed the City’s attorney,
John Salemi. Dalton asked Salemi whether Planet Aid could “retain its boxes in St. Johns’ [sic]
until the matter appears for ordinance review before the planning commission/City Council.”
Salemi replied that he would discuss the request with City officials and get back to Dalton. On
January 18, 2013, Dalton again emailed Salemi inquiring whether City officials had made a
decision and asking whether the bins “are to be removed by the 23rd . . . or if they can stay until
an ordinance is enacted addressing the issue?” Salemi responded that “the city manager is firm
in his belief that these boxes are both a public nuisance and a violation of our zoning ordinances
re [sic] accessory uses. They need to be removed.” In answer to Dalton’s question of whether
there was an appeals process, Salemi replied that Planet Aid would not “have standing to appeal
even if there were” because the bins “aren’t on [Planet Aid’s] property.” The City subsequently
removed the bins and transported them to a City facility where they were later collected by
Planet Aid.

Almost a year later, the City Council addressed the issue of regulating charitable donation
bins at its December 9, 2013, meeting. According to the minutes, the planning commission had
recommended a “total prohibition” of charitable donation bins. The proposed ordinance
(Ordinance #618) implemented this recommendation, but included a grandfather clause because,
according to Salemi, the City wished to exempt the already-operational Lions Club Recycling
Center from any new regulation. At the meeting, Mayor Beaman “said other communities had
people dropping off their trash” at donation bins and asked the Director of Public Works, Steve
Rademacher, whether there was a problem with the St. Johns Planet Aid bins. Rademacher
responded that trash drop offs at the two bins had “very seldom” occurred.

Nevertheless, the St. Johns City Council voted to adopt Ordinance #618 at its January 27,
2014, meeting. The ordinance added a new article, Article 5.518, to the St. Johns Zoning
Ordinance.

Section 5.518(1)(a) of the ordinance defines a “[d]onation box” as “[a]n outdoor,
unattended receptacle designed with a door, slot, or other opening that is intended to accept
donated goods or items.” Section 5.518(1)(b) describes the purpose of the ordinance as follows:
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 4

It is the intent of this section to prohibit donation boxes to protect the health,
safety and welfare of the citizens of the city by preventing blight, protecting
property values and neighborhood integrity, avoiding the creation and
maintenance of nuisances and ensuring the safe and sanitary maintenance of
properties. Unattended donation boxes in the city may become an attractive
nuisance for minors and/or criminal activity. It is also the intent of this section to
preserve the aesthetics and character of the community by prohibiting the
placement of donation boxes.

The following sections contain a substantive prohibition: “No person, business or other entity
shall place, use or allow the installation of a donation box within the City of St. Johns.”
(5.518(1)(c)) and a grandfather clause: “A donation box that exists on the effective date of this
ordinance shall not be subject to the prohibition contained herein.” (5.518(1)(d)).

On February 14, 2014, Planet Aid filed a five-count complaint in the district court,
alleging, among other things, that Ordinance #618 violated Planet Aid’s First Amendment rights
because it infringed on Planet Aid’s protected speech of charitable solicitation and giving.1 The
complaint sought both declaratory and injunctive relief. The City answered the complaint,
denying liability.

Planet Aid also filed a motion for a temporary restraining order or a preliminary
injunction. The district court’s order granting plaintiff’s motion is the subject of this appeal.

In the district court and on appeal, Planet Aid argued that its speech regarding charitable
giving is protected by the First Amendment and that the ordinance is a content-based restriction
subject to strict scrutiny. In opposing the motion and in this appeal, the City conceded a level of
First Amendment protection regarding Planet Aid’s speech, but argued that Planet Aid’s bins are
analogous to outdoor advertising signs, and that Ordinance #618 is therefore a content-neutral
time, place, and manner restriction that passes constitutional muster.

After holding oral argument, the district court granted plaintiff’s motion for a preliminary
injunction. The district court concluded that “Planet Aid’s operation of donation bins to solicit

1
The other four counts of the complaint alleged violations of Planet Aid’s rights under the Equal Protection
and Due Process clauses of the Fourteenth Amendment, the Dormant Commerce Clause, and the Michigan
Constitution. Only Planet Aid’s claim as to its First Amendment rights is at issue in this appeal.
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 5

and collect charitable donations qualifies as protected speech under the First Amendment” and
that Ordinance #618 was subject to strict scrutiny. The court held that

Plaintiff, in arguing that the ordinance fails strict scrutiny because it implements
an overly broad, prophylactic ban on all bins so the City can avoid dealing with
hypothetical nuisances or other issues that may arise with certain bins in the
future, has borne its burden of proving a substantial likelihood of succeeding on
the merits of its free speech claim.

The City appeals.

II.

In reviewing a district court’s decision on a motion for a preliminary injunction, we
“evaluate the same four factors that the district court does: (1) whether the movant has a strong
likelihood of success on the merits; (2) whether the movant would suffer irreparable injury
without the injunction; (3) whether issuance of the injunction would cause substantial harm to
others; and (4) whether the public interest would be served by issuance of the injunction.”
Kentucky v. U.S. ex rel. Hagel, 759 F.3d 588, 600 (6th Cir. 2014) (internal quotation marks
omitted).

We review “the District Court’s legal rulings de novo (including its First Amendment
conclusion), and its ultimate conclusion [regarding whether to issue a preliminary injunction] for
abuse of discretion.” Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme
Court, 769 F.3d 447, 454 (6th Cir. 2014) (internal quotation marks omitted). Findings of fact are
reviewed for clear error. N.A.A.C.P. v. City of Mansfield, Ohio, 866 F.2d 162, 166 (6th Cir.
1989); see also City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir.
2014) (en banc) (also noting that we review “for abuse of discretion, however, the district court’s
ultimate determination as to whether the four preliminary injunction factors weigh in favor of
granting or denying preliminary injunctive relief.”). In other words, “when we look at likelihood
of success on the merits, we independently apply the Constitution, but we still defer to the
district court’s overall balancing of the four preliminary-injunction factors.” Platt, 769 F.3d at
454.
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 6

III.

In this case, as the parties agree, the determination of whether Planet Aid is likely to
succeed on the merits of its First Amendment claim controls the question of the validity of the
preliminary injunction. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998).
We therefore turn to the merits of Planet Aid’s First Amendment claim.

The Supreme Court previously addressed charitable giving and the related act of
charitable solicitation in Village of Schaumburg v. Citizens for a Better Environment, 444 U.S.
620 (1980). There, the Court invalidated an ordinance that prohibited charities from soliciting
contributions unless the charities used at least seventy-five percent of their receipts “directly for
the charitable purpose of the organization.” Id. at 624. The Supreme Court held that “charitable
solicitations” were “clear[ly]” protected by the First Amendment, id. at 633, noting that its
“‘cases long have protected speech even though it is in the form of . . . a solicitation.’” Id.
(quoting Bates v. State Bar of Ariz., 433 U.S. 350, 363 (1977) (omission in original)). It
emphasized the “reality that solicitation is characteristically intertwined with informative and
perhaps persuasive speech seeking support for particular causes or for particular views on
economic, political, or social issues, and . . . the reality that without solicitation the flow of such
information and advocacy would likely cease.” Id. at 632. The Schaumburg Court applied strict
scrutiny, holding that the ordinance could not be sustained unless it served a “sufficiently strong,
subordinating” government interest. Id. at 636. Although the Court found that the village’s
stated reason for passing the ordinance—fraud prevention—was substantial, it observed that the
ordinance “only peripherally” served that interest because an organization could use more than
twenty-five percent of its receipts for purposes other than its charitable mission and yet remain a
charitable organization. Id. at 636–37. Later, the Supreme Court reaffirmed that speech
regarding charitable giving and solicitation is a protected First Amendment activity in both
Secretary of State of Maryland v. Munson, 467 U.S. 947 (1984), and Riley v. National
Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988). Again, the Court applied
strict scrutiny to regulations similar to the one at issue in Schaumburg. See also Speet v.
Schuette, 726 F.3d 867, 874 (6th Cir. 2013) (holding that “the First Amendment [not only]
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 7

protects charitable solicitation performed by organizations” but also protects “the solicitation of
alms when performed by an individual not affiliated with a group”).

The Supreme Court has “created a rough hierarchy in the constitutional protection of
speech” with “[c]ore political speech” occupying “the highest, most protected position . . .
commercial speech and nonobscene, sexually explicit speech” occupying a “sort of second-class”
status, and “obscenity and fighting words” receiving “the least protection of all.” R.A.V. v. City
of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., dissenting); see also Snyder v. Phelps, 131 S.
Ct. 1207, 1215 (2011) (acknowledging the “hierarchy of First Amendment values”); Paul B.
Stephan III, The First Amendment and Content Discrimination, 68 Va. L. Rev. 203, 206 (1982)
(“The approach reflected in the Court’s free speech opinions, and in almost every scholarly
discussion of the first amendment, posits some hierarchy of values entitled to constitutional
protection. Such a hierarchy implies a . . . ranking of particular categories of expression,
according to the degree the expression implicates the underlying values.”). Schaumburg and its
progeny hold that speech related to charitable solicitation and giving is worthy of strong
constitutional protection. Compare Snyder, 131 S. Ct. at 1215 (“[S]peech on public issues
occupies the highest rung of the hierarchy of First Amendment values.” (internal quotation marks
omitted)), with Schaumburg, 444 U.S. at 632 (noting that charitable appeals “involve a variety of
speech interests [including] communication of information, the dissemination and propagation of
views and ideas, and the advocacy of causes,” as well as “informative and perhaps persuasive
speech seeking support for . . . particular views on economic, political, or social issues”), and
Riley, 487 U.S. at 796 (holding that even assuming, arguendo, that charitable solicitations were
“in the abstract . . . merely ‘commercial,’ we do not believe that the speech retains its
commercial character when it is inextricably intertwined with . . . fully protected speech” on
issues of public importance such as those described in Schaumburg, and therefore declining to
“separate the component parts of charitable solicitations from the fully protected whole”).

Although the Supreme Court has not addressed the status of unattended donation bins, the
Fifth Circuit has. In National Federation of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202 (5th
Cir. 2011), the Court of Appeals for the Fifth Circuit relied on Schaumburg when invalidating a
Texas law requiring groups operating “public donations receptacles” to make disclosures on the
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 8

donation receptacles indicating, essentially, whether donated items would be sold for profit.
Texas argued that Schaumburg and its progeny were distinguishable because, unlike the active,
in-person solicitation at issue in Schaumburg, donation bins “represent nothing more than an
upturned palm” and were thus not expressive and protected the way that active, person-to-person
solicitations are. Id. at 212. Our sister circuit disagreed, reasoning that

Schaumburg’s mention of “on the street or door to door” solicitations is reflective
of the statute at issue in that case, not a meaningful ground on which to
distinguish donations to public receptacles. Black’s law dictionary defines
solicitation as “[t]he act or an instance of requesting or seeking to obtain
something.” Black’s Law Dictionary 1520 (9th ed. 2009). Solicitation is not
limited to in-person communication. More importantly the speech interests
identified in Schaumburg—“communication of information, the dissemination
and propagation of views and ideas, and the advocacy of causes”—are surely
implicated by the public receptacles. The mere inclusion of the name of a charity
on a donation box communicates information about the beneficiary of the
benevolence and explicitly advocates for the donation of clothing and household
goods to that particular charity. At a minimum, the donation boxes implicitly
advocate for that charity’s views, ideas, goals, causes, and values. It is clear that
Texans have choices when choosing to dispose of unwanted clothing or
household goods.

Id. at 212–13. The court held that “public receptacles are not mere collection points for
unwanted items, but are rather silent solicitors and advocates for particular charitable causes.”
Id. at 213. We agree.

The Fifth Circuit’s rationale in Abbott is well-reasoned and consistent with the free
speech principles set forth in Schaumburg and its progeny. A charitable donation bin can—and
does—“speak,” and not only in the ways described by the Fifth Circuit in Abbott. A passer-by
who sees a donation bin may be motivated by it to research the charity to decide if he wants to
donate—in so doing, the passer-by will gain new information about the social problem the
charity seeks to remedy. Indeed, the donation bin may ultimately motivate citizens to donate
clothing or shoes even if they had not previously considered doing so. The speech may not be
unidirectional, either—a citizen faced with a choice among several bins from different charities
may be inspired to learn more about each charity’s mission in deciding which charity is
consistent with his values, thus influencing his donation decision. In this way, donation bins in
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 9

many respects mirror the passive speaker on the side of the road, holding a sign drawing
attention to his cause.

For these reasons, we hold that speech regarding charitable giving and solicitation is
entitled to strong constitutional protection, and the fact that such speech may take the form of a
donation bin does not reduce the level of its protection. These conclusions, however, are the
beginning of our inquiry, not the end of it. That is because the fact that a government regulation
may incidentally impact some protected speech does not automatically trigger strict scrutiny.
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Government regulations of protected
speech are subject to strict scrutiny only if they target the protected speech, that is, if they are
content-based. With this in mind, we turn to the next step of our analysis.

IV.

A.

Determining whether Ordinance #618 is content-based is critical because the content
status of a regulation dictates the level of scrutiny applied to it. Broadly speaking, content-based
regulations on protected speech “can stand only if [they] satisf[y] strict scrutiny.” United States
v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 811 (2000). By contrast, government action that
merely regulates the time, place, and manner of protected speech, that is, “regulations that are
unrelated to the content of speech[,] are subject to an intermediate level of scrutiny.” Turner
Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994).

Determining whether a particular regulation is content-based or content-neutral “is not
always a simple task.” Id. Generally, however, if a law “treats speech differently based on the
viewpoint or subject matter of the speech, on the words the speech contains, or on the facts it
conveys, the [law] is based on the content (and the communicative impact) of speech.” Eugene
Volokh, THE FIRST AMENDMENT AND RELATED STATUTES 360 (5th ed. 2014). By contrast, if a
law “focuses on the noncommunicative aspects of the speech, and treats speech the same
regardless of what the speech says, [the law is] content-neutral.” Id.

“The First Amendment’s hostility to content-based regulation extends not only to
restrictions on particular viewpoints, but also to prohibition of public discussion of an entire
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 10

topic.” Consol. Edison Co. of N.Y. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 537 (1980); see
also Carey v. Brown, 447 U.S. 455, 462 n.6 (1980) (“It is . . . no answer to assert that the . . .
[speech regulation at issue] does not discriminate on the basis of the speaker’s viewpoint, but
only on the basis of the subject matter of his message.”). Indeed, “a law may be content-based
even if it’s viewpoint-neutral. A ban on profanity, for instance, is viewpoint-neutral, but content-
based. Speech restrictions [thus] fall into three categories: (1) content-neutral (and therefore
viewpoint-neutral), (2) content-based but viewpoint-neutral, and (3) viewpoint-based (and
therefore content-based).” Volokh, THE FIRST AMENDMENT at 361.

The Supreme Court has analyzed the content status of speech regulations in a number of
ways. First, the Court has held that whether a regulation is content-based or content-neutral may
turn on whether “the government has adopted a regulation of speech because of disagreement
with the message it contains.” Hill v. Colorado, 530 U.S. 703, 719 (2000) (quoting Ward,
491 U.S. at 791). That is, if the regulation engages in viewpoint discrimination, it is content-
based. Turner, 512 U.S. at 643 (“As a general rule, laws that by their terms distinguish favored
speech from disfavored speech on the basis of the ideas or views expressed are content based.”).

Second, the Court has held that the content-neutral/content-based distinction may turn on
whether the regulation hampers the “communicative impact of [the speaker’s] expressive
conduct.” Texas v. Johnson, 491 U.S. 397, 411 (1989). That is, a regulation is content-neutral
only if it is “unrelated to expression.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 567
(2001).

Third, a court should examine whether the legislature’s predominant intent regarded the
content of the speech, rather than its secondary effects. Renton v. Playtime Theaters, Inc.,
475 U.S. 41, 48 (1986).

Fourth, and most obviously, the Supreme Court has held that when a regulation is “based
on the content of speech” and not “applicable to all speech irrespective of content,” the
regulation is content-based. Consol. Edison Co., 447 U.S. at 536. That is, when a regulation
“regulates speech on the basis of its subject matter,” it is not content-neutral. Id.
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 11

Employing one or more of these standards, the Supreme Court has ruled that the
following are content-based: federal and state regulations prohibiting or restricting the burning
of flags as a form of protest, United States v. Eichman, 496 U.S. 310, 315 (1990), Johnson,
491 U.S. at 412; a city regulation prohibiting the display of signs within 500 feet of a foreign
embassy that “tend[] to bring that foreign government into ‘public odium’ or ‘public disrepute,”
Boos v. Barry, 485 U.S. 312, 315, 321 (1988); a federal criminal statute proscribing the posting
for commercial purposes content that was “harmful to minors,” including sexually explicit
content, Ashcroft v. ACLU, 542 U.S. 656, 661 (2004); a federal statute requiring that cable
operators scramble only sexually explicit channels but not others, thus “focus[ing] only on the
content of the speech and the direct impact that speech has on its listeners,” Playboy Entm’t
Grp., Inc., 529 U.S. at 811 (quoting Boos, 485 U.S. at 321 (opinion of O’Connor, J.)); a state
provision prohibiting candidates for judgeships from announcing their views on political issues,
Republican Party of Minn. v. White, 536 U.S. 765, 774 (2002); a state statute prohibiting
criminals from receiving financial compensation from writings about their crimes because the
statute “single[d] out income derived from expressive activity for a burden the State place[d] on
no other income, and it [was] directed at works with a specified content,” Simon & Schuster, Inc.
v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991); a regulation charging
those organizing a parade for policing expenses, but which could be adjusted by the government
based on need and therefore amounted to a “premium in the case of a controversial political
message delivered before a hostile audience,” Forsyth Cnty. v. Nationalist Movement, 505 U.S.
123, 136 (1992); and a law banning all residential picketing except labor picketing, because “the
permissibility of residential picketing under the . . . statute [was] . . . dependent solely on the
nature of the message being conveyed,” Carey, 447 U.S. at 461. Even though several of these
examples involve viewpoint-neutral regulations, they are all content-based. See Volokh, THE
FIRST AMENDMENT at 360.

By contrast, the Supreme Court has concluded that regulations such as the following are
content-neutral: a ban on all sleeping in public parks, Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 295 (1984); a city’s “attempt to regulate the volume of amplified music at [a]
bandshell,” Ward, 491 U.S. at 784, 792; a ban on the “proliferation of an unlimited number of
signs in private, residential, commercial, industrial, and public areas . . . [because signs] would
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 12

create ugliness, [as well as] visual blight and clutter,” City of Ladue v. Gilleo, 512 U.S. 43, 47
(1994);2 a ban on all sound amplification devices, Kovacs v. Cooper, 336 U.S. 77, 87 (1949); a
ban on all public nudity, “regardless of whether that nudity is accompanied by expressive
activity,” City of Erie v. Pap’s A.M., 529 U.S. 277, 290 (2000); and a ban on the distribution of
leaflets, handbills, and “oral protest” within 100 feet of a health care facility because the ban
“place[d] no restrictions on . . . any subject matter that may be discussed by the speaker” but
instead “establishe[d] a minor place restriction on an extremely broad category of
communications with unwilling listeners,” Hill, 530 U.S. at 708, 723.

B.

Under these standards, Ordinance #618 clearly regulates protected speech on the basis of
its content. The ordinance does not ban or regulate all unattended, outdoor receptacles. It bans
only those unattended, outdoor receptacles with an expressive message on a particular topic—
charitable solicitation and giving. Thus, the ordinance is not “unrelated to expression.”
Lorillard Tobacco Co., 533 U.S. at 567. The ordinance’s “purpose clause” lists a plethora of
problems associated with donation bins, including concerns over “preserv[ing] aesthetics,”
“preventing blight,” and “avoiding the creation and maintenance of nuisances.” The City
elaborates in its appellant brief, arguing that donation bins “can readily be surrounded by items
that don’t fit or that overflowed [sic] because the bin was [sic] full,” and that “children can be
injured by climbing into or on such bins; and they have become a place for criminals loitering in
some communities.” However, these concerns apply with equal force to non-expressive outdoor
receptacles such as dumpsters, receptacles at recycling centers, and public and private trash cans.
Yet the ordinance permits the “place[ment], use [and] . . . installation” of these non-expressive
receptacles. It bans only those outdoor receptacles that are “intended to accept donated goods or
items.” That is, Ordinance #618 bans only outdoor receptacles that carry a message about
charitable giving—expression that the Supreme Court held in Schaumburg and its progeny is
worthy of strong constitutional protection.

2
In Ladue, the Court assumed, without squarely deciding, that the ordinance was content-neutral, but struck
it down anyway because it failed intermediate scrutiny by not leaving open sufficient “alternative channels for
communication.” Ladue, 512 U.S. at 56 (citation omitted).
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 13

The City asserts that Ordinance #618 is content-neutral. Underpinning its argument is its
assumption that because the ordinance is viewpoint-neutral, it is also content-neutral. For
example, the City argued in its briefing that Ordinance #618 is content-neutral because it “makes
no distinction based on the nature of the organization, person, or entity that sought to place a
donation box within the City.” At oral argument, the City elaborated that the ordinance is
content-neutral because it applies “to donation bins regardless of whose they are.” However, as
we explained above, a speech regulation can be viewpoint-neutral but content-based. For
example, the regulation at issue in White prevented judicial candidates from expressing a point of
view—any point of view—on “disputed legal or political issues.” 536 U.S. at 768. It was thus
viewpoint-neutral, but the Supreme Court still held that it was content-based and invalidated it.
Id. at 774, 788. Thus, it does not follow that the ordinance is content-neutral simply because it is
viewpoint-neutral.

In a related argument, the City quotes the Supreme Court’s pronouncement in Ward that
“[t]he government’s purpose is the controlling consideration” in determining content-status of a
regulation and asserts that the government’s purpose in this case is “set forth in the ordinance
itself.” Specifically, the City argues that because the ordinance’s “purpose clause” lists a number
of non-speech-based justifications for the ordinance (prevention of blight, aesthetics, etc.), the
ordinance is necessarily content-neutral. However, the “purpose clause” of the ordinance does
not alter the fact that the ordinance is facially content-based. The ordinance applies only to
outdoor, unattended receptacles that are “intended to accept donated goods or items.” In other
words, by its terms, the ordinance applies only to one subclass of unattended, outdoor
receptacles: those with a message about charitable solicitation and giving. Thus, it is clear from
the face of the ordinance that the City’s purpose in enacting it was to regulate speech on the basis
of its content.

The City also contends that plaintiff’s charitable donation bins are “analogous to
billboards and advertising signs” because both donation bins and signs are “physical object[s]
that [are] placed outside on property within [a] city.” It relies on cases in which our court has
held that regulations of billboards and signs are content-neutral. See Bench Billboard Co. v. City
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 14

of Covington, 465 F. App’x 395, 403–05 (6th Cir. 2012), and Prime Media, Inc. v. City of
Brentwood, 398 F.3d 814, 818–24 (6th Cir. 2004). This argument is not persuasive.

The regulations at issue in Bench Billboard Co. and Prime Media were not content-
neutral simply because they regulated physical, outdoor structures. Rather, the regulations were
deemed content-neutral because they did not proscribe the speech content that could be placed on
the billboards or signs. See Prime Media, 398 F.3d at 816, 819 (noting that the case involved a
challenge to an ordinance “that restricts the size and height of billboards” and holding that the
ordinance was content-neutral because it “regulate[d] only the non-expressive components of
billboards”); Bench Billboard Co., 465 F. App’x at 403 (addressing an ordinance that regulated
the height, width, and depth of newsracks on public property and governing where they could be
located).

A government may regulate the physical characteristics of outdoor structures, provided
the regulations are content-neutral. However, that is not what occurred here. The ordinance at
issue does not merely regulate outdoor structures’ height, size, cleanliness, or where they may be
located. On the contrary, it bans altogether an entire subclass of physical, outdoor objects—
those with an expressive message protected by the First Amendment. That is why Ordinance
#618 is content-based.

By way of analogy, assume that a municipality passed an ordinance banning all
billboards within the city from addressing the subject of abortion, regardless of the viewpoint.
Although neutral regarding viewpoint, such a regulation would clearly be content-based. At oral
argument, defendant’s counsel agreed. We see no principled distinction between this
hypothetical and Ordinance #618. In both instances, the government attempts to regulate an
entire topic of protected speech as conveyed on a particular type of outdoor structure. And,
“[b]road, prophylactic rules in the area of free expression are suspect. Precision of regulation
must be the touchstone.” Schaumburg, 444 U.S. at 637.

Finally, defendant City of St. Johns questions the level of scrutiny applied in
Schaumburg, Munson, Riley, and Abbott. The City argues that Schaumburg did not “announce
that strict scrutiny is to be applied” to regulations that impact speech on charitable solicitation.
At oral argument, the City expounded on this point. Focusing on Abbott’s use of the word
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 15

“stricter” rather than “strict,” see 647 F.3d at 212, the City argued that Schaumburg and its
progeny applied a level of scrutiny “stricter than [that applicable] to commercial [speech] but not
strict in the highest sense.” We disagree. Schaumburg plainly applied strict scrutiny. Compare
Schaumburg, 444 U.S. at 637 (“The Village may serve its legitimate interests, but it must do so
by narrowly drawn regulations designed to serve those interests without unnecessarily
interfering with First Amendment freedoms.” (emphasis added)) with Playboy Entm’t Grp., Inc.,
529 U.S. at 813 (in order to satisfy strict scrutiny, the government must show that the regulation
at issue is “narrowly tailored to promote a compelling Government interest” (emphasis added)).
So did Munson and Riley. Munson, 467 U.S. at 961; Riley, 487 U.S. at 791, 795. See also Riley,
487 U.S. at 810–11 (Rehnquist, C.J., dissenting) (“The Court concludes . . . that strict scrutiny
should be applied and that the statute does not survive that scrutiny.”). Moreover, the application
of strict scrutiny in those cases was warranted because they, like this case, involved content-
based restrictions of protected speech. See, e.g., Riley, 487 U.S. at 795.

C.

Because Ordinance #618 is a content-based restriction on speech, “it can stand only if it
satisfies strict scrutiny.” Playboy Entm’t Grp., Inc., 529 U.S. at 813. Thus, in order for the
ordinance to pass constitutional muster, the City bears the burden to establish that it is “narrowly
tailored to promote a compelling Government interest. If a less restrictive alternative would
serve the Government’s purpose, the [City] must use that alternative.” Id. (citation omitted).
Assuming, without deciding, that the City’s stated interests in preventing blight and aesthetics
are compelling, we hold that Ordinance #618 is not narrowly tailored to promote those interests.

The parties dispute whether the ordinance should be categorized as a “complete” or
“total” ban on donation bins. The City has argued both sides of this point. In the district court,
the City asserted, “the City’s ban on donation boxes is complete.” In its appeal, in its opening
brief, the City asserts, “the City’s ban was not complete.” In its reply brief, the City attempts to
clarify this contradiction as follows:

To be sure, the ban was on occasion imprecisely labeled “total” [by the City].
But, as is clear from even a cursory review of the ordinance language, what is
meant by “total” was that the ban was not limited to for-profit donation bins . . .
[an approach] that would have distinguished between what was covered and what
No. 14-1680 Planet Aid v. City of St. Johns, MI Page 16

was not on the basis of content, i.e., whether the entity was profit-making or non-
profit.

This argument lacks merit. Even assuming that a for-profit/nonprofit distinction is a content-
based one in the first place—and it is not clear that it is—there is no indication in the record that
ensuring a ban on both for-profit and non-profit bins was the City’s purpose in enacting the
ordinance.

The City also argues that the ban is not complete—and thus satisfies strict scrutiny—
because “only outdoor, unattended receptacles . . . are banned. Receptacles that are attended or
not outdoors are allowed.” This argument also misses the mark. The ordinance preemptively
and prophylactically prevents all charities from operating outdoor, unattended donation bins
within the City in the interest of aesthetics and preventing blight. This implies, without any
evidence, that charities would be negligent in failing to conduct timely pickups of donated goods,
in maintaining the appearance of the bins, etc. Further, it assumes that lesser, content-neutral
restrictions such as requiring weekly or bi-weekly pickups or inspections of all outdoor
receptacles would be ineffective.

“To prohibit this much speech is a significant restriction of communication between
speakers and willing adult listeners, communication which enjoys First Amendment protection.”
Playboy Entm’t Grp., Inc., 529 U.S. at 812. Thus, “it is of no moment” whether the ordinance is
labeled “complete” or “total” because “[t]he distinction between laws burdening and laws
banning speech is but a matter of degree. The Government’s content-based burdens must satisfy
the same rigorous scrutiny as its content-based bans.” Id.

For these reasons, we conclude that the district court did not err when it ruled that Planet
Aid was likely to succeed on the merits of its First Amendment claim. And, because “[w]hen a
party seeks a preliminary injunction on the basis of the potential violation of the First
Amendment, the likelihood of success on the merits often will be the determinative factor,” we
affirm the district court’s decision to grant the preliminary injunction. Connection Distrib. Co. v.
Reno, 154 F.3d 281, 288 (6th Cir. 1998).
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V.

For these reasons, we affirm the order of the district court.