In 2004, the City of Englewood passed an ordinance which contained: 1) a licensing requirement for donation solicitors; and 2) a curfew provision that prohibited all canvassing and soliciting activities between 6 p.m. and 9 a.m. but granted the City Manager the authority to extend the curfew for good cause. In April 2005, a non-profit public-interest group called Ohio Citizen Action (OCA) wrote to Englewood regarding its intention to canvass and solicit from 4 p.m. to 9 p.m. Englewood permitted OCA to canvass until 8 p.m. but stated that from then on the curfew would be strictly enforced. Later, in July 2005, Englewood passed an amendment to the 2004 ordinance which kept the licensing requirements and curfew provision. However, the amendment rescinded the City Manager’s discretionary power to extend the curfew for good cause. It also included a provision requiring the City Manger to maintain a “do-not-solicit list” to which any property owner could add his or her residence. On July 24, 2005, OCA, by separate counsel, filed a suit under 42 U.S.C. §1983, claiming that the 2004 and 2005 Ordinances violated the First and the Fourteenth Amendments of the United States Constitution. In February, 2010, the district court found unconstitutional and struck both the licensing requirements of the 2004 and 2005 ordinances and the “do-not solicit” provision of the 2005 ordinance. The court upheld the curfew provision in both ordinances and ruled that OCA lacked standing to challenge the curfew extension provision of the 2004 Ordinance due to mootness. Both sides appealed.
Legal Theory
These ordinances imposed unreasonable content-based restrictions on protected speech in violation of the First Amendment. In upholding the curfew, the district court accepted the city’s justification that it has fewer police on the night shift and residents are more prone to call police for nighttime solicitors, and that would stretch the city’s limited resources beyond what is reasonable. If left to stand, we believe this would set a terrible precedent that difficult financial straights are a sufficient justification to restrict protected speech.
Status Update
In May 2010, we filed an amicus brief in support of OCA. On June 9, 2011, the Sixth Circuit heard an oral argument. On February 2, 2012, the Sixth Circuit struck the curfew provision finding that it was not related to Englewood’s governmental interests in protecting residential privacy or preventing crime. The Sixth Circuit also held that OCA had standing to challenge the curfew provision of the 2004 Ordinance. It also denied Englewood’s cross-appeal of the district court’s order enjoining enforcement of certain provisions of the 2004 and 2005 Ordinances. The case is now remanded to the district court for further proceedings consistent with the ruling.
