In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-3581

DON NORTON and KAREN OTTERSON,

Plaintiffs-Appellants,

v.

CITY OF SPRINGFIELD, ILLINOIS, et al.,

Defendants-Appellees.

____________________

On Petition for Rehearing

____________________

DECIDED AUGUST 7, 2015

____________________

Before EASTERBROOK, MANION, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge. Our first decision in this appeal concluded that Springfield’s anti-panhandling ordinance does not draw lines based on the content of anyone’s 

speech. Because the litigants agreed that the ordinance’s validity depends on this issue, we affirmed the district court’s 

decision. 768 F.3d 713 (7th Cir. 2014). We deferred consideration of the petition for rehearing until the Supreme Court 

decided Reed v. Gilbert, 135 S. Ct. 2218 (2015). Shortly after 

deciding Reed, the Court remanded Thayer v. Worcester, 755 
2 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 opinion 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 ordinance 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 donations as less impositional than 

oral requests for money immediately, which some persons (especially at night or when no one else is nearby) may find threatening.

768 F.3d at 714. Plaintiffs contend that the ordinance’s principal 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 reasons. We observed that the ordinance does not interfere with 

the marketplace for ideas, that it does not practice viewpoint 

discrimination, and that the distinctions that plaintiffs call 

content discrimination appear to be efforts to make the ordinance less restrictive, which should be a mark in its favor. 

We summed up: “The Court has classified two kinds of regulations as content-based. One is regulation that restricts 

speech because of the ideas it conveys. The other is regula-
No. 13-3581 3

tion that restricts speech because the government disapproves of its message. It is hard to see an anti-panhandling 

ordinance as entailing 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 speech 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 regulates “because of the 

topic discussed”. The Town of Gilbert, Arizona, 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 strict scrutiny regardless of the government’s benign motive, contentneutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” 135 S. Ct. at 2228. It added: 

“a speech regulation targeted at specific subject matter is 

content based even if it does not discriminate among viewpoints within that subject matter.” Id. at 2230.

Three Justices 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 three Justices 

wrote separately. The majority opinion in Reed effectively 

abolishes any distinction between content regulation and 

subject-matter regulation. Any law distinguishing one kind 
4 No. 13-3581

of speech from another by reference to its meaning now requires a compelling justification.

Our observation, 768 F.3d at 717, that Springfield has attempted to write a narrowly tailored ordinance now pertains 

to the justification stage of the analysis rather than the classification stage. But Springfield has not contended that its ordinance is justified, if it indeed represents content discrimination. 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.

The 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

MANION, Circuit Judge, concurring.

I join the opinion of the court in full, but write separately to

underscore the significance of the Supreme Court’s recent

decision in Reed v. Town of Gilbert, which held that a speech

regulation targeted at specific subject matter is content-based

even if it does not discriminate among viewpoints within that

subject matter. 135 S. Ct. 2218, 2230 (2015). Reed injected some

much-neededclarityinto First Amendment jurisprudence and,

in doing so, should eliminate the confusion that followed from

Ward v. Rock Against Racism, 491 U.S. 781 (1989). While Ward is

well-recognized as the Court’s seminal time, place, andmanner

First Amendment case, it also described a standard for contentneutrality that was in tension with the Court’s developing

content-based regulation of speechdoctrine. Reed resolved this

uncertainty. 

Ward stated that “[t]he principal inquiry in determining

content neutrality ... is whether the government has adopted a

regulationof speech because of disagreement with the message

it conveys.” 491 U.S. at 791. Over time, courts interpreted this

statement to mean that it did not matter if a law regulated

speakers based on what they said, so long as the regulation of

speech was not imposed because of government disagreement

with the message. Under this approach, if an ordinance was

not viewpoint-based, then it was content-neutral. For example,

a local government’s decision to eliminate religious speech or

abortion-related speech was considered content-neutral

because it was not viewpoint-based—as, for instance, a

regulation prohibiting “Christian speech” or “pro-life speech”

was and remains. Reed eliminates this distinction. 135 S. Ct. at

2227 (concluding that a speech regulation is content-based if it

prohibits the topic discussed orthe idea ormessage expressed);
6 No. 13-3581

ante at 3 (“Reed effectively abolishes any distinction between

content regulation and subject-matter regulation.”). On this

point, Reed overrules Ward. 

Reed saw what Ward missed—that topical censorship is still

censorship. Rejecting the idea that the government may

remove controversial speech from the marketplace of ideas by

drafting a regulation to eliminate the topic, Reed now requires

any regulation of speech implicating religion or abortion to be

evaluated as content-based and subject to strict scrutiny, just

like the aforementioned viewpoint-based restrictions covering

more narrow contours of speech. 135 S. Ct. at 2228, 2230. Few

regulations will survive this rigorous standard. 

Because the court has faithfully applied Reed to the City’s

ordinance, I concur.