It can’t have happened often (if at all) that a retired Justice would decide a new case based on his reading of an opinion in which he dissented.

Yet that is precisely what happened in Thayer v. Worcester, 755 F.3d 60 (1st Cir. 2014) (Souter, J.), a First Circuit decision from earlier this year in which the now retired Justice Souter, writing for that court, upheld Worcester’s panhandling law using Justice Kennedy’s analysis from International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992)Lee was the latest decision (in a series of three) from the Supreme Court dealing with anti-panhandling laws and one in which Justice Souter had dissented.

 

The Seventh Circuit highlighted this historic twist recently in Norton v. Springfield, No. 13-3581 (7th Cir. Sept. 25, 2014), where that court considered whether the City of Springfield’s panhandling ordinance, which prohibited panhandling in the city’s “downstown historic district” and defined “panhandling” as an “oral request for an immediate donation of money,” violated the First Amendment. The plaintiffs’ argument was that the ordinance amounted to a content-based restriction on their free speech because the ordinance outlawed only immediate oral requests for money, not other requests that evidently seemed less threatening to Springfield’s lawmakers—e.g., signs or requests to send money in the future.

The Seventh Circuit’s majority opinion, written by Judge Easterbrook (and joined by Judge Sykes), noted that the courts of appeals are split on this issue and appeared to use the fact that Justice Souter, who dissented in Lee, recently voted in Thayer to uphold an ordinance from Worcester because he thought that was how Justice Kennedy would have come down on the issue. Justice Kennedy was the necessary fifth vote in United States v. Kokinda, 497 U.S. 720 (1990)Lee‘s anti-panhandling predecessor at the Court, and, based on Justice Kennedy’s separate writings in both Kokinda and Lee, Justice Souter concluded that Justice Kennedy’s view is still, as the Seventh Circuit put it, “likely to carry the day.”

The result here, as in Thayer, was that the anti-panhandling ordinance was not an invalid content-based restriction on free speech. Justice Kennedy thought that “an airport [at issue in Lee] should be treated the same as a city street [at issue here] and that restricting panhandling is permissible in both settings” because the law in Lee had been narrowly tailored to prohibit only potentially threatening confrontations. Slip Op. 5. “In other words,” Judge Easterbrook wrote, “what saved the regulation in Justice Kennedy’s eyes is exactly what condemns it in plaintiffs’: the limit to solicitation for immediate receipt, which Justice Kennedy saw as the soul of reasonabless and plaintiffs as pernicious content discrimination.” Id.at 6.

Judge Manion disagreed in an 11-page dissent.