In December 2011, the City of Plano, Illinois adopted an ordinance that banned clothing donation bins from the city. While donation bins were banned, other unattended containers such as dumpsters and recycling bins were not banned. Dalton & Tomich wrote a letter to the city on behalf of USAgain, a company that maintains clothing donation bins around the country.
The letter’s argument was based primarily on the First Amendment’s guarantee of free speech. Specifically, Dalton & Tomich argued that a complete ban of donation bins was a content-based restriction of speech. The speech at issue was the donation bins themselves. The Supreme Court has ruled that solicitations for charitable donations are protected speech. And the Fifth and Sixth Circuits have both found that an appeal for charitable donations made by an unattended receptacle is also free speech.
Dalton and Tomich argued that the ordinance was content-based since the ordinance required an enforcement officer to evaluate the content on an unattended receptacle to determine whether or not the receptacle was banned by the ordinance. Content-based ordinances are subject to strict scrutiny. Under strict scrutiny, an ordinance must be the least restrictive means of furthering a compelling government interest. Dalton and Tomich argued that there were certainly less restrictive means available to the city to address its concerns than a total ban of donation bins.
After Dalton and Tomich sent its letter, the city agreed that its ordinance needed to be changed. Plano has since approved a constitutionally acceptable ordinance regulating instead of banning clothing donation bins. In this instance, Dalton and Tomich was able to provide a non-litigation solution to an unconstitutional ordinance. In many cases, this type of solution maintains a working relationship with the municipality while offering significant savings for the client.
