Placement of Clothes Donation Bins Leads to Michigan Dispute

Planet Aid is a nonprofit charitable organization established to “strengthen and organize communities, reduce poverty and promote small enterprise development, support sustainable local food production, improve access to training and quality education, and increase health awareness and encourage healthy lifestyles.” To that end, Planet Aid solicits donations of clothing and shoes through its unattended, outdoor donation bins and distributes the collected items to organizations in other countries.

With permission, Planet Aid places its bins on the property of private businesses, choosing visible, accessible locations. The bins are marked with contact information so members of the public can report if the bins are full. Planet Aid representatives typically visit the bins on a weekly basis to collect the donated goods, minimizing the chance that items will accumulate outside the bins.

In December, 2012, when the city of St. Johns, Mich., did not regulate charitable donation bins, Planet Aid placed two of its bins on private property within the city: one at a former grocery store, and the other at a gas station. Shortly thereafter, the city sent Planet Aid a letter claiming that the “containers have been found to create a nuisance as people leave boxes and other refuse around the containers.” It directed Planet Aid to promptly remove the bins, and threatened that if Planet Aid did not do so, the city would remove them.

Planet Aid's attorney repeatedly emailed the city attorney, asking whether Planet Aid could keep its boxes in place until the matter appeared for ordinance review before the planning commission and city council. The city attorney finally responded that “the city manager is firm in his belief that these boxes are both a public nuisance and a violation of our zoning ordinances.” When asked about an appeals process, the city attorney told Planet Aid’s attorney that the city had none but, even if it did, Planet Aid could not challenge the order because the bins were not on Planet Aid’s property. The city subsequently removed the bins and transported them to a location where Planet Aid later collected them.

About a year later, the city council addressed the regulation of charitable donation bins by passing an ordinance implementing a planning commission recommendation that the bins be prohibited. The measure included a grandfather clause to accommodate the already-operational Lions Club Recycling Center from any new regulation. At the meeting where the ordinance was adopted, the mayor, who fretted over garbage being dropped off at donation bins, asked the city public works director whether such a problem existed with the Planet Aid bins. He responded that trash drop offs at the two bins had rarely occurred.

According to the ordinance, the ban was intended to protect the health, safety and welfare of the citizens of the city by “preventing blight, protecting property values and neighborhood integrity, avoiding the creation and maintenance of nuisances and ensuring the safe and sanitary maintenance of properties … and to preserve the aesthetics and character of the community.”

Two weeks after the city adopted the ordinance, Planet Aid filed a lawsuit in federal district court, alleging, among other things, that the measure violated Planet Aid’s right under the First Amendment to solicit for charitable giving. The city answered the complaint by denying any liability. Planet Aid also filed a motion for a preliminary injunction, which, after hearing arguments from both sides, U.S. District Judge Janet T. Neff granted.

The judge found that Planet Aid's “operation of donation bins to solicit and collect charitable donations qualifies as protected speech under the First Amendment” and that the ordinance was subject to strict scrutiny. She agreed with Planet Aid that the ordinance implements an “overly broad, prophylactic ban on all bins so the City can avoid dealing with hypothetical nuisances or other issues that may arise with certain bins in the future.” Thus, as she saw it, Planet Aid was entitled to an injunction as it had demonstrated a “substantial likelihood of succeeding on the merits of its free speech claim.”

On appeal, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s decision to grant the injunction. “A charitable donation bin can—and does—‘speak’ … mirror[ing] the passive speaker on the side of the road, holding a sign drawing attention to his cause,” the panel said. Brushing aside the city’s argument that donation bins can readily be surrounded by items that don't fit or that overflow, the appeals court noted that these concerns “apply with equal force to non-expressive outdoor receptacles such as dumpsters, receptacles at recycling centers, and public and private trash cans.” Yet the ordinance permits the “place[ment], use [and] … installation” of these non-expressive receptacles. As the appeals court saw it, the ban runs afoul of the First Amendment by addressing only outdoor receptacles with a message about charitable giving—expression that the U.S. Supreme Court has repeatedly held “worthy of strong constitutional protection.”

Planet Aid Aid v. City of St. Johns, 782 F.3d 318 (6^th Cir. 2015)