The U.S. Supreme Court’s recent Reed v. Town of Gilbert decision involved a dispute over yard signs, but its consequences reach far beyond for local governments. Prior to Gilbert, many believed that the 1st Amendment permitted separate regulatory schemes for different types of messages, so long as each category was regulated reasonably without hostility to particular types of speech. The court in Gilbert rejected that understanding, holding that any regulatory scheme that categorizes speech based on content is subject to “strict scrutiny,” and is therefore presumptively unconstitutional. In other words, if a sign ordinance requires reading the sign to determine which regulations apply, it violates the 1st Amendment unless the regulations are narrowly tailored to a compelling government interest. The court struck down the ordinance at issue in Gilbert because it established three categories of noncommercial signs (political, ideological, and directional) and treated each category differently without sufficient justification.
Lower courts are beginning to apply Gilbert’s understanding of the 1st Amendment in other contexts, overturning existing case law on speech regulation. At least two federal courts in other jurisdictions have recently held that any ordinance that establishes special regulations for people soliciting donations is subject to strict scrutiny. If extended to Michigan, this reasoning could be used to challenge “aggressive panhandling” ordinances that regulate specific methods of panhandling (such as standing near ATMs) that are most likely to cause offense or create safety hazards. A federal district court in Colorado recently ruled that ordinances that prohibit panhandling near ATMs do not withstand strict scrutiny, because not all requests for money near ATMs are threatening in nature. Any community with an aggressive panhandling ordinance, or any ordinance that takes the message of speech into account, may wish to consider the impact of the Gilbert decision.