### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3581
D ON N ORTON and K AREN O TTERSON , Plaintiffs

- Appellants ,

v.
C ITY OF S PRINGFIELD , I LLINOIS , et al. , Defendants

- Appellees

.

____________________
On Petition for Rehearing

____________________
D ECIDED A UGUST 7, 2015

____________________
Before E ASTERBROOK , M ANION , and S YKES , Circuit Judges

. E ASTERBROOK , Circuit Judge

. Our first decision in this a ppeal concluded that Springfield’s anti

- panhandling ord inance does not draw lines based on the content of anyone’s speech. Because the litiga nts agreed that the ordinance’s v alidity depends on this issue, we affirmed the district court’s decision. 768 F.3d 713 (7th Cir. 2014). We deferred consider ation of the petition for re hearing until the Supreme Court decided Reed v. Gilbert , 135 S. Ct. 2218 (2015). Shortly after deciding Reed , the Court remanded Thayer v. Worcester , 7552 No. 13

- 3581

F.3d 60 (1st Cir. 2014), a panhandling

- ordinance decision on which our first opinion had relied, for further consideration in light of Reed

. 135 S. Ct. 2887 ( 2015). At our request, the parties filed supplemental memoranda discussing Reed

. We now grant the petition for rehearing and apply Reed to Springfield’s ordinance. As our first opini on explained, §131.06 of Springfield’s Municipal Code prohibits panhandling in its “downtown historic district”

— less than 2% of the City’s area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state

- government buildings. The ord inance defines panhandling as an oral request for an immediate donation of money. Signs requesting money are allowed; so are oral pleas to send money later. Springfield evidently views signs and requests for deferred dona tions as less impositional than oral requests for money immediately, which some persons (e specially at night or when no one else is nearby) may find threa tening. 768 F.3d at 714 . Plaintiffs contend that the ordinance’s pri ncipal rule

— barring oral requests for money now but not regulating requests for money later

— is a form of content discrimination. The panel disagreed with that submission for several re asons. We observed that the ordinance does not interfere with the marketplace for ideas, that it does not practice viewpoi nt discrimination, and that the distinctions that plaintiffs call content discrimination appear to be efforts to make the ord inance less restrictive, which should be a mark in its favor. We summed up : “ The Court has classified two kinds of re gulations as content

- based. One is regulation that restricts speech because of the ideas it conveys. The other is regul a-No. 13

- 3581 3
tion that restricts speech because the government disa pproves of its message. It is hard to see an anti

- panhandling ordinance as entai ling either kind of discrimination. ” 768 F.3d at 717 (citations omitted). We classified the ordinance as one regulating by subject matter rather than content or viewpoint.
Reed understands content discrimination differently. It wrote that “regulation of sp eech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” 135 S. Ct. at 2227 (emphasis added). Springfield’s ordinance regu lates “because of the topic discussed”. The Town of Gilbert, Ariz ona, justified its sign ordinance in part by contending, as Springfield also does, that the ordinance is neutral with respect to ideas and viewpoints. The majority in Reed found that insufficient: “A law that is content based on its face is subject to stri ct scrut iny regardless of the government’s benign motive, content

neutral justification, or lack of ‘animus toward the ideas co ntained’ in the regulated speech.” 135 S. Ct. at 2228 . It added: “a speech regulation targeted at specific subject matter is cont ent based even if it does not discriminate among vie wpoints within that subject matter.” Id . at 2230

. Three J ustices concurred only in the judgment in Reed

. 135 S. Ct. at 2236

– 39 (Kagan, J., joined by Ginsburg & Breyer, JJ.). Like our original opinion in this case, these Justices thought that the absence of an effort to burden unpopular ideas implies the absence of content discrimination. But the majority held otherwise; that’s why these thre e Justices wrote sepa rately. T he majority opinion in Reed effectively abolish es any distinction between content regulation and subject

- matter regulation. Any law distinguishing one kind4 No. 13

- 3581
of speech from another by reference to its meaning now r equires a compelling justification. Our observation, 768 F.3d at 717, that Springfield has a ttempted to write a narrowly tailored ordinance now pertains to the justification stage of the analysis rather than the class ification stage. But Springfield has not contended that its o rdinance is j ustified, if it indeed represents content discrim ination. As we said at the outset, the parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination. Reed requires a positive answer.
Th e judgment of the district court is reversed, and the case is remanded for the entry of an injunction consistent with Reed and this opinion.No. 13-3581 5

M A N I O N , Circ uit Judge, concu rr i ng

. I jo i n the opin i on of the court i n full, but wri te separately to underscore the signi fi canc e of the Supreme Court ’s recent deci si on i n Reed v. Town of Gilbert, whi ch held that a speech reg ulati on tar get ed at speci fi c subject matter i s content-bas ed

even i f i t does not di scri mi nate among view poin ts wi thi n that sub ject matter

. 135 S. Ct. 2218, 2230 (2015). Reed i njected s ome

muc h

- n e e d e d c l a ri ty i nto First Amendment jurisprudenc e and, i n doin g so, should eli mi nate the confus i on that followed from Ward v. Rock Against Racism , 491 U.S. 781 (1989). Whi le Ward i s

w e l l

- re c ogni zed as the Court ’s semi nal tim e, pl a c e , a n d m a n n e r First Amendment case, i t also descri bed a standard for co n tentneutrality that was i n tensi on wi th t he Court ’s develo pi ng content-based reg ulati on of speech doctrine. Reed resolv ed thi s

unc ert ai nty.
Wa r d stated that “[t]he prin ci pal i nqui ry i n deter mi ni ng content neutrality

... i s whether the gov ernment has adopted a reg u l a ti on of s p e e ch becau se of di sagreement wi th the mess age i t c onvey s.” 491 U.S. at 791. Ov er tim e, courts i nterpr eted thi s statement to mean t ha t i t di d not matter i f a law reg ulated speakers based on what they sai d, so long as the reg ulati on of speech was not i mposed becau se of gov ernment di sagreement wi th the mess age. Under thi s approach, i f a n o r di nance was not view poin t-based, then i t was content-neutral

. For example,

a local gov ernment’s deci si on to eli mi nate reli gious speech or abort i on-relate d speech was consi dered content-neutral becau se i t was not view poin t-based—a s, for i nstance, a reg ulati on prohibi tin g “Chris tian speech ” or “pro-lif e speech ”

was and remain s. Reed eli mi nates thi s di sti ncti on

. 135 S. Ct. at 2227 (conc ludi ng that a speech reg ulati on i s content-based i f i t prohibi ts the topic di scu ssed or the i d e a or m e s s a ge expr essed) ;6 No. 13-3581

ante at 3 (“ Reed effecti vely aboli shes any di sti ncti on between content reg ulati on and su bj ect-matter reg ulati on.”). On thi s poin t, Reed ov err ules Ward

. Reed saw what Ward mi ssed—that topical cens or shi p i s sti ll

cens or shi p. Rej ecti ng the i dea that the gov ernment may

remov e contro ver si al speech from the market place of i deas by drafting a reg ulati on to eli mi nate the topic, Reed now requires any reg ulati on of speech i mpli cati ng religi on or abort i on to be evaluat e d as content-based and sub ject to stric t scruti ny, just li ke the aforementioned view poin t-based restr i cti ons cover i ng

more narro w contours of speech . 135 S. Ct. at 2228, 2230. Few reg ulati ons wi ll su rv i ve t hi s ri gor ous standard.
Becaus e the court has fai thfully a p p l ied Reed to the Ci ty’ s

or di nance, I conc ur.