Commentary

12.20.16

Will Ohio Follow Michigan’s Anti-Charity Lead?

By

Gavel and stethoscope

Several well-established nonprofit organizations in Michigan found their longstanding holiday fundraising drives put on ice this year by Bill Schuette, Michigan’s Attorney General. Media reports that 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 Schuette’s aggressive (and potentially unconstitutional) interpretation of a traffic law. Other organizations are worried about the potential consequences, while some cities in Ohio use the same approach to silence charitable speech in violation of the First Amendment.

Michigan’s War Against Charitable Solicitation

In a formal opinion, Schuette concluded that a state statute prohibiting the disruption of traffic prohibited solicitation of donations in or near roadways. In car-dependent Michigan, this could make it harder for many nonprofits to reach donors using decades-old methods.

Law enforcement has already starting invoking the Attorney General’s opinion to shut down charities’ planned fundraisers.

The law at issue prohibits interfering with traffic without “authority.” To reach its broad conclusions, the opinion first assumes that any solicitation in or near a roadway—even at a red light or on a deserted street—will impede the flow of traffic and is therefore prohibited. While the opinion does tack on an acknowledgement that “particular facts and circumstances” may vary, that is unlikely to comfort charities trying to stay on the good side of the law. Indeed, law enforcement has already starting invoking the AG’s opinion to shut down charities’ planned fundraisers.

Second, the opinion notes that pedestrians may be allowed in roadways at times and one can even sell goods in the street. No authority, however, 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 raises real concerns about risks to fundraising individuals from distracted drivers, but a blanket rule that preempts local jurisdictions’ authority to regulate local traffic patterns and risks, without any evidence that traffic flow is actually being harmed by charitable solicitation, is much too clumsy to withstand even mild scrutiny.

Ohio Cities Also Restrict Charity Drives

In recent months, several Ohio cities have repealed laws that unconstitutionally restricted charitable solicitation on sidewalks. But some cities continue to enforce needlessly broad restrictions on roadside solicitation (typically, although not exclusively, enforced against homeless individuals rather than charities). Cleveland, for example, has written more than four thousand tickets for charitable solicitation near roadways since 2007. Columbus imposes massive burdens on charities seeking to solicit, requiring that they obtain a permit as well as an expensive insurance policy, and only permits it for a single day each year. Notably, Columbus only allows certain nonprofit corporations to obtain a permit; and individuals have no opportunity to obtain a permit, which bizarrely gives more speech rights to corporations than real, human persons.

To be sure, roadway safety is a real issue that cities can address, but these comprehensive limits on charitable solicitation near any roadway are considerably broader than necessary to preserve safety. What about traffic that is stopped at a light? What about traffic on a lightly-traveled side street? And why are other forms of speech permitted, but charitable solicitation banned? Further, both Cleveland and Columbus exempt specific causes that the city favors—local firefighters and their charity drives—undercutting the pretense that the restrictions are necessary for pedestrian safety or traffic flow.

First Amendment Protects Roadside Charity Drives

The Supreme Court has repeatedly held that charitable requests—communicating about needs and causes, and asking for support—are free speech and can be regulated under the First Amendment only in limited ways. Restrictions like those posed by Cleveland, Columbus and Michigan that single out charitable solicitation for special restrictions are presumptively unconstitutional.

Cutting v. Portland and Reynolds v. Middleton clearly limit municipalities from restricting charitable solicitation on public roadways.

Although governments may adopt well-tailored, evidence-backed rules that restrict conduct that poses an actual risk to traffic or pedestrian safety, they cannot simply prohibit charitable speech directed to motorists throughout a city or state.

This holiday season, our governments should stop wasting their energies on arresting people for charitable solicitation. Protect us from real threats to public safety, not charitable speech.

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