Petition for Writ of Certiorari — National Federation of the Blind of Texas, Incorporated, et al., Petitioner v. City of Arlington, Texas

Supreme Court briefJan 13, 2025

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No. 24In the

Supreme Court of the United States

NATIONAL FEDERATION OF THE

BLIND OF TEXAS AND ARMS OF HOPE,

Petitioners,

CITY OF ARLINGTON, TEXAS,

A Municipal Corporation,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Kelly Shackelford

Jeffrey C. Mateer

Hiram S. Sasser III

David J. Hacker

Tiffany Dunkin

First Liberty Institute

2001 West Plano Parkway,

Suite 1600

Plano, TX 75075

K aren Donnelly

Counsel of Record

Errol Copilevitz

Copilevitz, Lam

& Raney, P.C.

310 West 20th Street,

Suite 300

Kansas City, MO 64108

(816) 472-9000

kdonnelly@clrkc.com

Bennett Rawicki

Hilgers Graben PLLC

7859 Walnut Hill Lane,

Suite 335

Dallas, TX 75230

Counsel for Petitioners

333938

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

The City of Arlington, Texas, has banned charitable

donation boxes on consenting private property in 25 of

28 zoning districts in the City, foreclosing placement at

churches, faith-based schools, and commercial locations

where donors can see and conveniently access the boxes.

Donation boxes have been used for thousands of years as

an important and unique means of soliciting and receiving

donations for charitable causes. Arlington has made this

fully protected speech and association a crime in the 25

forbidden zones, which comprise most of the City.

The Charities seek to peacefully speak and associate

with donors through donation boxes on consenting

private property to build awareness for their charitable

and religious causes, appeal for support of those causes,

and collect much-needed charitable contributions. Yet,

Arlington prohibits them from doing so.

The questions presented are:

1. Whether the most exacting scrutiny long applied by

this Court to laws banning or burdening fully protected

charitable solicitations applies to a ban on donation boxes.

2. Whether the court below erred by failing to properly

require narrow tailoring under intermediate scrutiny.

RULE 29.6 STATEMENT

Arms of Hope and National Federation of the Blind

of Texas are nonprofit corporations organized under the

laws of Texas. They have no parent corporations and no

publicly held company owns 10% or more of their stock.

iii

RELATED PROCEEDINGS

Pursuant to Supreme Court Rule 14.1, Petitioners

state that the following proceedings are directly related

to the action that is the subject of this Petition:

United States District Court (N.D. Tex.):

Nat’l Fed’n of the Blind of Tex. v. City of Arlington, No.

3:21-CV-2028-B (Sept. 9, 2022) (granting judgment for

Plaintiffs on zoning restriction, entering permanent

injunction, and finding for Defendant on all remaining

claims).

United States Court of Appeals (5th Cir.):

Nat’l Fed’n of the Blind of Tex. v. City of Arlington, No.

23-10034 (July 17, 2024), petition for reh’g en banc denied,

Aug. 16, 2024 (reversing judgment on zoning ban, vacating

permanent injunction, and finding for Defendant in all

respects).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

RULE 29.6 STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CONSTITUTIONAL PROVISIONS INVOLVED . . . . 5

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 5

A. The Petitioners’ charitable donation-box

programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. The challenged Arlington Ordinance . . . . . . . . . 7

C. Arlington’s mischaracterization of the ban . . . .11

D. The proceedings below . . . . . . . . . . . . . . . . . . . . 12

Table of Contents

Page

REASONS FOR GRANTING THE WRIT . . . . . . . . . 15

T H E S TA N DA R D - OF-R E V I E W

QUESTION MERITS THIS COURT’S

REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. The Holding Below Conflicts With This

Court’s Precedent Requiring The Most

Exacting Scrutiny For Laws Regulating

The Solicitation Of Charitable And

Religious Contributions . . . . . . . . . . . . . . . . 15

B. The Decision Below Deepens A n

Entrenched Circuit Split Regarding

Standard Of Review . . . . . . . . . . . . . . . . . . . 19

The Sixth Circuit versus the

Ninth Circuit and post-Reagan

Fifth Circuit . . . . . . . . . . . . . . . . . . . . . . 20

2. The Sixth Circuit got it right . . . . . . . . 25

II. THE NARROW-TAILORING ISSUE

MERITS THIS COURT’S REVIEW . . . . . . . . 26

A. T he F i f t h C i r c u it Ev i sc e r at e d

The Nar row-Tailor ing Prong Of

Intermediate Scrutiny, Violating

McCullen . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Table of Contents

Page

B. The Fifth Circuit Improperly Extended

Vincent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

III. THE QUESTIONS PRESENTED ARE

IMPORTANT AND RECURRING . . . . . . . . . 33

A. The Issues Are Important . . . . . . . . . . . . . 33

B. The Issues Are Recurring . . . . . . . . . . . . . 35

IV. THIS CASE IS AN IDEAL VEHICLE

T O A DDR E S S T H E QU E S T IONS

PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED JULY 17, 2024 . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF TEXAS, DALLAS DIVISION,

FILED SEPTEMBER 9, 2022 . . . . . . . . . . . . . . . . 29a

A P P E N DI X C — O R D E R D E N Y I N G

REHEARING OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH

CIRCUIT, FILED AUGUST 16, 2024 . . . . . . . . . . 69a

APPENDIX D — ARLINGTON ORDINANCES

16-020 (041216) AND 18-044 (082118) . . . . . . . . . . . 71a

viii

TABLE OF CITED AUTHORITIES

Page

Cases

Ams. for Prosperity Found. v. Bonta,

594 U.S. 595 (2021) . . . . . . . . . . . . . . . . . . . . . 16, 18, 19

Bruni v. City of Pittsburgh,

141 S. Ct. 578 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Cantwell v. Connecticut,

310 U.S. 296 (1940) . . . . . . . . . . . . . . . . . . 16, 17, 18, 24

City of Austin v. Reagan Nat’l Advert. of

Austin, LLC,

596 U.S. 61 (2022) . . . . . . . . . . 13, 22, 23, 24, 25, 34, 37

City of Ladue v. Gilleo,

512 U.S. 43 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 31

Kissel v. Seagull,

552 F. Supp. 3d 277 (D. Conn. 2021) . . . . . . . . . . . . . 21

Linc-Drop, Inc. v. City of Lincoln,

996 F. Supp. 2d 845 (D. Neb. 2014) . . . . . . . . . . . . . . 19

Lovell v. Griffin,

303 U.S. 444 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

McCullen v. Coakley,

573 U.S. 464 (2014) . . . 1, 2, 4, 14, 26, 27, 28, 29, 30, 34

Cited Authorities

Page

Members of City Council v. Taxpayers for Vincent,

466 U.S. 789 (1984) . . . . . . . . . . 3, 14, 15, 29, 30, 31, 37

Meyer v. Grant,

486 U.S. 414 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

N.A.A.C.P. v. City of Richmond,

743 F.2d 1346 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . 17

NAACP v. Button,

371 U.S. 415 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

National Federation of the Blind of Texas v. Abbott,

647 F.3d 202 (5th Cir. 2011) . . . . . . . . . . . . . . . 1, 19, 22

Nat’l Fed’n of the Blind of Texas, Inc. v.

City of Arlington, Texas,

109 F.4th 728 (5th Cir. 2024) . . . . . . . . . . . . . . . . . . . 36

Planet Aid v. City of St. Johns,

782 F.3d 318 (6th Cir. 2015) . . . . . . 1, 19, 20, 21, 25, 26

Planet Aid v. Ypsilanti Twp.,

26 F. Supp. 3d 683 (E.D. Mich. 2014) . . . . . . . . . . . . 36

Recycle for Change v. City of Oakland,

856 F.3d 666 (9th Cir. 2017) . . . . . . . . 20, 22, 23, 24, 25

Reed v. Town of Gilbert,

576 U.S. 155 (2015) . . . . . . . . . . . . . . . . . . . . . 24, 25, 26

Cited Authorities

Page

Riley v. Nat’l Fed’n of Blind,

487 U.S. 781 (1988) . . . . . . . 3, 16, 17, 18, 19, 20, 22, 23

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Schaumburg v. Citizens for a Better Env’t,

444 U.S. 620 (1980) . . . . . . . . . . . . . . . 16, 17, 18, 20, 22

Schneider v. State,

308 U.S. 147 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Sec’y of State of Md. v. Joseph H. Munson Co.,

467 U.S. 947 (1984) . . . . . . . . . . . . . . . . . . 16, 17, 20, 26

State v. TVI,

1 Wn.3d 118 (Wash. 2023) . . . . . . . . . . . . . . . . . . . 21, 22

Thomas v. Collins,

323 U.S. 516 (1945) . . . . . . . . . . . . . . . . . . . . . 16, 17, 24

Thornhill v. Alabama,

310 U.S. 88 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

United States v. Playboy Entm’t Grp., Inc.,

529 U.S. 803 (2000) . . . . . . . . . . . . . . . . . . . . . 18, 26, 33

U’SAgain, LLC v. City of L.A.,

No. CV 24-6210-CBM-BFMx, 2024 U.S. Dist.

LEXIS 161797 (C.D. Cal. Sep. 9, 2024) . . . . . . . . 35, 36

Cited Authorities

Page

Ward v. Rock Against Racism,

491 U.S. 781 (1989) . . . . . . . . . . . . . . . . 4, 13, 26, 30, 34

Williams-Yulee v. Fla. Bar,

575 U.S. 433 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Constitutional Provisions

U.S. Const. amend. I . . 1, 3, 5, 8, 12, 13, 16, 18, 22, 25, 33-35

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statutes and Other Authorities

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

47 U.S.C. § 227(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

01-000-150 Miss. Code R. § 2.08(A)(2) . . . . . . . . . . . . . . 35

2 Chronicles 24:8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

City of Marietta, Georgia, Zoning Ordinance,

Div. 710, at p. 6, § 710.07(A) . . . . . . . . . . . . . . . . . . . . 36

Town of West Warwick, Ordinance No. 2019-9

§ 10-188(d)(1)(a)-(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

“A Donation Box Stolen,” The Philadelphia Record

(July 3, 1889) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

xii

Cited Authorities

Page

Cal. A.B. 488 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

“Charity Box Opened,” The Clinton Morning Age

(Mar. 16, 1895) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

“Couldn’t Feel at Home,” The Kentucky New Era

(Mar. 25, 1881) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Brian Kelly, She Came, God Saw, She Conquered,

Catholicism.org (Aug. 5, 2017) . . . . . . . . . . . . . . . . . . 32

Lawrence Daily Journal (Apr. 24, 1890) . . . . . . . . . . . . 32

Luke 21:1-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Laura Mogil, A History of Giving, N.Y. Times,

Sept. 6, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 31

Ashley Williams, In the Spirit of giving? What to

know about the Salvation Army’s annual Red

Kettle campaign, USA Today, Dec. 7, 2022 . . . . . . . 32

INTRODUCTION

The Fifth Circuit has upheld, against First Amendment

challenge, a ban on a longstanding form of fully protected

charitable and religious solicitation—the unattended

donation box. The divided court below applied the wrong

standard of First Amendment review to a law restricting

the solicitation of donations, violating nearly a century of

this Court’s precedent. It also eviscerated the narrowtailoring prong under intermediate scrutiny, contravening

McCullen v. Coakley, 573 U.S. 464, 495 (2014). The

impact of this free speech case reaches much farther

than donation receptacles—it opens the door for cities

and states to ban any medium of charitable solicitation

through zoning laws or other overly broad restrictions

without having to demonstrate narrow tailoring or satisfy

an exacting level of First Amendment scrutiny.

Donation boxes are containers soliciting charitable

contributions of used clothing and household items placed

on consenting private property, often in the parking lots

of grocery stores, churches, and schools. As recognized in

National Federation of the Blind of Texas v. Abbott, 647

F.3d 202, 213 (5th Cir. 2011), a donation box communicates

a charitable message and advocates for a cause, just like a

silent speaker holding a sign on the side of the road. The

Sixth Circuit agreed in Planet Aid v. City of St. Johns,

782 F.3d 318, 326 (6th Cir. 2015), explaining the fact that

charitable solicitation takes the form of a donation box

does not reduce the level of its protection.

However, since 2016, the City of Arlington, Texas, has

banned charitable donation boxes in 25 of its 28 zoning

districts. Zoning maps showed almost all of Arlington was

banned. App. 58a-59a. The City relegated donation boxes

to three primarily industrial areas dotting the periphery

of the City, far from churches, schools, and commercial

areas where they can be seen and accessed conveniently

by donors. Id. Based on the zoning ban, since 2016 the City

has forced Petitioner Arms of Hope to remove 20 donation

boxes and has denied 16 applications by the Charities.

To address specific problems the City had experienced

with unregulated donation boxes—namely, overflow

and litter surrounding the boxes—Arlington imposed a

licensing scheme and maintenance restrictions. But then it

layered on top of that licensing scheme a zoning restriction

that bans this fully protected speech in most of Arlington.

App. 26a. The Charities welcome reasonable permitting

requirements and maintenance regulations. But they

oppose the zoning ban that forecloses the majority of

Arlington to this medium of fully protected speech,

which destroys the viability of donation box programs and

effectively silences this unique and important medium of

protected speech. App. 58a-59a.

As Judge Graves explained below in dissent, “To

justify the zoning provision, the city was required to

‘demonstrate that alternative measures that burden

substantially less speech ... fail to achieve [its] interests.’”

App. 24a (quoting McCullen, 573 U.S. at 495). The City

failed to make this showing.

Indeed, the Ordinance’s non-zoning provisions

already address the specific concerns raised by the City.

App. 24a-27a. Rather than giving its maintenance and

permitting restrictions a chance to succeed, Arlington

took a sledgehammer to this important medium of speech

and association because it was easier.

The gover nment cannot sacr i f ice speech for

efficiency. Riley v. Nat’l Fed’n of Blind, 487 U.S. 781,

795 (1988). The zoning ban is gratuitous, overly broad,

and unconstitutionally stifles fully protected speech and

association. See App. 27a-28a (dissent concluding the

zoning ban is not narrowly tailored and “violates the First

Amendment.”).

Like the dissent below, the district court correctly held

the zoning restriction burdened substantially more speech

than necessary to achieve the City’s stated interests in

maintenance and accountability. App. 59a-60a. In a grave

departure from this Court’s precedent, the divided panel

below reversed, splitting from the Sixth Circuit and a

state supreme court.

Acknowledging its split from the Sixth Circuit, the

court below held that the challenged law is content neutral

and applied intermediate scrutiny. Without evidence from

the government that a ban in any one zone was necessary,

it extended Members of City Council v. Taxpayers for

Vincent, 466 U.S. 789 (1984), to uphold the ban simply

because the government said so. See App. 16a-18a. The

court also rejected City of Ladue v. Gilleo, 512 U.S. 43

(1994), which limited Vincent to non-important and nonunique forms of communication, all while agreeing that

charitable donation boxes are fully protected speech. App.

7a, 17a-18a.

The Fifth Circuit erred in two critical ways: (1) it

applied the wrong standard of scrutiny to a law restricting

charitable solicitation, in conf lict with this Court’s

precedent and other circuit courts; and (2) it eviscerated

the narrow-tailoring prong of intermediate scrutiny,

contravening McCullen and Ward v. Rock Against

Racism, 491 U.S. 781 (1989).

The Fifth Circuit’s decision means the government

can impose a sweeping ban on fully protected speech just

by claiming in litigation that it does not like the medium.

The holding below lowers the Constitutional guardrails

that have historically protected charitable speech from

prior restraint, with far-reaching consequences. This

erroneous holding requires immediate reversal to protect

the speech and association rights of all charitable and

religious organizations.

OPINIONS BELOW

The panel opinions of the United States Court of

Appeals for the Fifth Circuit (App. 1a-28a) are reported

at 109 F.4th 728. The opinion of the United States District

Court for the Northern District of Texas (App. 29a-68a)

is reported at 2022 WL 4125094.

JURISDICTION

On August 16, 2024, the court of appeals denied

Petitioners’ timely petition for rehearing en banc. On

October 31, 2024 and December 13, 2024, Justice Alito

extended the time for filing a petition for a writ of

certiorari, making the petition due January 13, 2025. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment provides:

Congress shall make no law ... abridging the freedom of

speech, or of the press; or the right of the people peaceably

to assemble, and to petition the Government for a redress

of grievances.

The Fourteenth Amendment provides:

[N]or shall any State deprive any person of life, liberty,

or property, without due process of law.

STATEMENT OF THE CASE

A. The Petitioners’ charitable donation-box programs

Donation boxes are a vital, low-cost means for charities

and faith-based organizations to associate with donors,

build awareness for their causes, and solicit and receive

contributions. App. 3a. They have been used for centuries

in the Jewish and Christian religions, embodying the

virtue of charity celebrated by those faiths. See L. Mogil,

A History of Giving, N.Y. Times, Sept. 6, 2007.

Petitioners National Federation of the Blind of

Texas and Arms of Hope (collectively, “the Charities”)

use donation boxes to solicit and collect donations of

used clothing and household goods. The Charities use

those donations to clothe the needy, serve the blind, and

otherwise support their venerable missions. ROA.1196

¶¶ 4-8, 1200-01 ¶¶ 7-9.

Arms of Hope is a faith-based charity that provides

housing, necessities, counseling, education, and other

services to children and single-mother families in their

time of greatest need and in a Christian environment. App.

30a. Women and children often come to Arms of Hope

with only the clothes on their backs, often escaping violent

situations. Arms of Hope uses some of the donations

received through its donation boxes to clothe its residents.

Arms of Hope sells in bulk that which it does not need to

create a steady, reliable revenue stream for its ministry.

App. 31a. Through its donation boxes, Arms of Hope feeds

and clothes the poor, makes the gift of life possible for

expectant mothers, and spreads the love of Jesus Christ

through its Christian message.

Petitioner National Federation of the Blind of Texas

(“NFBTX”) provides critical resources to families with

blind or low-vision members and to the sight-impaired

community at large. Dedicated to the complete integration

of the blind into society, NFBTX provides an audio

newspaper program to blind and low-vision Texans;

educates the public about the sight-impaired community;

acts as a resource to the blind and their families; and

works to remove legal, economic, and societal barriers

that inhibit access to employment, education, recreation,

and other aspects of community life. See App. 30a. Like

Arms of Hope, NFBTX uses donation boxes to spread its

charitable message, build awareness of the challenges of

low-vision community-members, and raise funds for its

charitable programs. App. 31a.

Donation boxes provide donors with a convenient and

accessible way to contribute to worthwhile causes. See

Arlington Staff Report (Aug. 21, 2018), ROA.1192. For

those who cannot afford to donate money, donation boxes

offer an alternative way to practice the virtue of charity.

They also allow donors who wish to remain private to

associate with and support causes with anonymity.

Donation boxes also benefit the environment by

diverting to charity what would otherwise go to landfills.

Id. In 2018, 11.3 million tons of textiles went to municipal

landfills—which was 7.7% of all municipal solid waste sent

to landfills nationwide. See Environmental Protection

Agency, Facts and Figures about Materials, Waste and

Recycling, Textiles: Material-Specific Data (Dec. 3, 2022)

(“main source of textiles in municipal solid waste ... is

discarded clothing”).

In the proceedings below, the Charities provided

undisputed evidence that other methods of soliciting used

clothing and household goods are significantly more costly

and less effective than donation boxes. ROA.1039-40, 1045,

1050, 1094.

The Charities do not oppose the enactment of

maintenance and permitting regulations requiring that

donation boxes be kept clean and tidy and providing

a means of identifying operators for appropriate

enforcement. App. 39a. However, this Ordinance does far

more than regulate maintenance and permitting.

B. The challenged Arlington Ordinance

Arlington enacted its “Donation Boxes” Chapter of

the City Code (“Donation Box Law”) in 2016 and partially

amended it in 2018. App. 84a-85a.

When it imposed the Donation Box Law in 2016, the

City admitted it was targeting charitable solicitation.

App. 75a (§ 3.03(1)). During a Municipal Policy Committee

Meeting, the Committee conceded that most donation bins

in Arlington were operated as charitable solicitations.

ROA .1482 - 8 3. A rling ton recog nized that “Firstamendment protection [is] guaranteed if solicited

charitably,” and an “outright ban” on donation bins would

be unconstitutional. Id. Yet it banned them anyway,

because that was easier than enforcing its maintenance

regulations. See ROA.1483-84.

Arlington asserted an interest in aesthetics. The plain

text of the Donation Box Law states the City’s intent is “to

provide efficient legal remedies for unpermitted or poorly

maintained donation boxes that threaten the orderly

development of the City.” App. 24a-25a, 86a (§ 1.02).

Arlington singled out one area—the Community

Commercial zoning district—as its particular focus. The

City’s “code compliance director” discussed “out-of-control

proliferation of boxes—especially the ‘prolific number’

in the city’s high-traffic Community Commercial zones”:

“[e]ven when donation boxes are well-maintained,” he said,

“they can be unsightly, particularly in large numbers.”

App. 25a. (emphasis added).

As the dissent below explained, however, the zoning

restriction “outright bans the boxes not just from the

Community Commercial zones that are the focus of the

city’s concerns, but also from the 577 city acres that

are zoned Office Commercial and from all residential

zones, where at least some churches are located. Those

are areas where, if the boxes were properly maintained,

their presence would seem to be both appropriate and

particularly useful to the Charities.” App. 26a. By its

ordinance, the City is in effect preventing churches

from pursuing their mission of helping those in need in

furtherance of their religious beliefs.

The enacted law does much more than regulate

maintenance and increase accountability—it effectively

bans donation boxes from most of the City. Indeed,

Arlington cannot identify a single church in the 25

prohibited zones that would be allowed to place a donation

box on its property under the enacted law.

There is no evidence in the record that all bins

everywhere in the City are unsightly. App. 16a, 27a. On

the contrary, a visual survey the City conducted before

enforcing its maintenance restrictions showed that

many donation boxes exhibited no maintenance issues

whatsoever, including all boxes collecting donations

for Arms of Hope. App. 25a, 59a (study “predat[ed]

the Ordinance’s substantial registration, GPS, contact

information, disclosure, and maintenance requirements”).

For its visual survey, Arlington visited only five

of 28 zones. ROA.700-21. The City conducted no postenforcement study to determine whether its maintenance

requirements were sufficient to address its stated

interest in regulating donation boxes, nor is there any

other evidence in the record showing the zoning ban was

necessary.

Thus, the City banned boxes in 25 zones without

evidence of a single maintenance issue in 22 of those zones

and without ever determining whether the non-zoning

provisions of the Donation Box Law were sufficient in any

zone, including Community Commercial areas. See id.

The non-zoning provisions of the Donation Box Law

already address the City’s specific concerns. App. 25a.

Those provisions “address[] construction problems by

requiring boxes to be made of metal, limited to 120 cubic

feet, and painted a single, non-fluorescent color.” Id.;

App. 90a-91a (§ 3.03(E)-(G)). They address accountability

problems by requiring permitting and contact information

to be displayed on the box. App. 25a, 91a ((§ 3.03(K)).

They also compel a written disclosure to donors that all

donations must fit within the box. App. 34a, 91a (§ 3.03(J)).

They address maintenance through strong upkeep and

“cleaning requirements and by imposing joint and several

liability on permit holders and property owners for failure

to meet those requirements.” App. 25a-26a, 89a-90a

(§ 3.03(C)), 93a-94a (§ 3.06(A), (C), (I)). They address

placement through setback requirements, even though

some are too far, and by prohibiting boxes in easements,

driveways, floodplains, fire lanes, and unpaved areas.

App. 26a, 91a-94a. Finally, they “address[] clustering and

proliferation through the permitting requirement and

by generally restricting boxes to no more than one per

lot.” App. 26a, 90a (§ 3.03(D)). The “visual and structural

integrity of the donation box must be maintained

continuously.” App. 93a (§ 3.06(C)).

A nd the law has teeth. Violators face permit

revocation, impoundment of the box and its donated

contents, steep civil penalties, and criminal charges. App.

94a-95a (§ 3.07(A), (D)), App. 99a (§ 4.01(A)). For each

violation, the charity and property owner face a $500 fine,

and each day the violation continues is a separate offense.

Id. After only one violation, speakers must wait one year

before applying for a new permit. App. 96a (§ 3.07(E)).

Relying on the zoning ban, the City has forced Arms

of Hope to remove 20 donation boxes and has denied 16

permit applications from the Petitioners. ROA.1522-637,

1667, 1812. The Donation Box Law is so restrictive that

between 2018 and 2022, the City received only nine permit

applications. ROA.1664. The City denied most of those

initially and ultimately granted just five permits during

that four-year period. ROA.1355-56; ROA.1664-65. It is

widely understood that donation boxes are essentially

banned in Arlington.

C. Arlington’s mischaracterization of the ban

Arlington plainly bans donation boxes in most of the

City. App. 59a-60a. Arlington obfuscates the effect of its

ban by using percentages of only nonresidential acreage

to describe where the protected speech is permitted. App.

14a-15a. In fact, Arlington forecloses the protected speech

by churches and faith-based schools in all residential

zones. The Fifth Circuit apparently adopted the City’s

mischaracterization without independently reviewing the

record. App. 14a-15a.

The Charities showed undisputed evidence of their

desire to place donation boxes on church properties, and

the record shows Arlington’s residential zones include

churches. See App. 26a. Arlington has shown no evidence

that supports a ban on all well-maintained charitable

donation boxes at churches, schools, or commercial areas

in any single zone in Arlington.

D. The proceedings below

On August 26, 2021, the Charities brought suit to

challenge the zoning ban.

The Charities argued that the Donation Box Law

is classic subject-matter regulation, and thus contentbased, because it singles out and prohibits only outdoor

receptacles that communicate a particular topic—the

solicitation of donations. App. 43a. The Charities showed

that Arlington treats trash bins and commercial signs

more favorably than this fully protected speech, allowing

trash bins and commercial signs in all zones but banning

donation boxes from most of them. App. 10a. Thus, strict

scrutiny was required. The Charities further argued that

the zoning restriction is so insufficiently tailored that it

fails any standard of First Amendment scrutiny. They

explained the Donation Box Law lacks any nexus to the

City’s maintenance interests because it prophylactically

prohibits fully protected speech via clean and wellmaintained donation boxes in 25 zones, even though ample

less-restrictive alternatives are available. App. 55a-56a.

Arlington argued that the law is content neutral

because it treats all donation boxes equally and does not

regulate based on speaker or viewpoint. App. 38a, 50a.

Thus, Arlington argued intermediate scrutiny applied.

Arlington further argued its Donation Box Law passes

intermediate scrutiny because it “‘curtails no more speech

than is necessary to accomplish its purpose’ and leaves

open ample alternative channels of speech.” App. 56a.

But Arlington provided no evidence that existing lessrestrictive alternatives were insufficient to achieve its

interests and, thus, why the 25-zone ban was necessary.

On September 9, 2022, the district court held the

Donation Box Law was content-neutral, finding it

discriminates based on location and not “the solicitation’s

topic, subject matter, or viewpoint.” App. 45a (relying on

City of Austin v. Reagan Nat’l Advert. of Austin, LLC,

596 U.S. 61, 72-73 (2022)). Accordingly, the district court

applied intermediate scrutiny. It nonetheless enjoined the

zoning restriction, holding it “burden[s] substantially more

speech than is necessary to achieve the City’s legitimate

goals” and thus was not narrowly tailored. App. 59a-60a

(citing Ward, 491 U.S. at 798-99).

The district court explained that “[t]he Zoning Maps

submitted by Plaintiffs show that the three zones in which

donation bins are currently allowed are peripheral areas,

concentrated on manufacturing and industry, where they

are unlikely to be seen by potential donors.” Id. “While

the City need not show that its chosen regulation is the

most narrowly tailored way of achieving its goals,” the

district court made clear that “a ban on donation bins in

all other zoning districts—unless justified by evidence

that the Ordinance’s other regulations ... have proven

ineffective to control bin-associated ills in those areas—

is not narrowly tailored.” App. 60a. The court facially

invalidated the zoning restriction and found for the City

on all other claims. App. 67a-68a.

On July 17, 2024, a divided panel of the Fifth Circuit

reversed summary judgment for the Charities on the

zoning ban and affirmed summary judgment for the City

on all remaining First Amendment claims. App. 24a.

Acknowledging an existing split between the Sixth and

Ninth Circuits on the question of the content-neutrality

of donation-box regulations, App. 8a, the court below

followed the Ninth Circuit and determined Arlington’s

Donation Box Law was content-neutral. The Fifth Circuit

reasoned that the Donation Box Law applies to all donation

boxes, “encompassing both charitable and non-charitable

solicitations for donations.” App. 11a.

Without any evidence that the less-restrictive

provisions of the Donation Box Law were insufficient

to control blight in the 25 banned zones, App. 16a, the

majority below declined to conduct the narrow-tailoring

analysis required under McCullen, 573 U.S. at 495.

The majority instead accepted the City’s unsupported

argument, raised for the first time on appeal, that all boxes

constitute “visual blight.” App. 16a. With no evidence

that all boxes everywhere constitute visual blight, the

Fifth Circuit embraced a “because-the-government-saidso” rationale and extended Vincent, 466 U.S. at 810, to

authorize a complete ban on an entire medium of fully

protected speech. App. 7a, 16a-19a, 27a. The split panel

below vacated the judgment for the Charities on the zoning

restriction, upholding the Donation Box Law in full.

In dissent, Judge Graves held the zoning ban restricts

substantially more speech than necessary and, thus, fails

intermediate scrutiny because it is not narrowly tailored.

App. 24a. He explained that the panel majority misapplied

intermediate scrutiny. App. 25a-28a. “To justify the

zoning provision, the city was required to ‘demonstrate

that alternative measures that burden substantially less

speech ... fail to achieve [the government’s] interests.’”

App. 24a (quoting McCullen, 573 U.S. at 495). Here, the

“record shows that those other provisions are narrowly

tailored to achieve all of the city’s interests. And they

are substantially less speech restrictive than the zoning

provision.” Id.

Judge Graves noted the text of the Donation Box

Law itself contradicts the Fifth Circuit’s conclusion that

all donation boxes constitute “visual blight,” as does

the declaration by the City’s code compliance director,

which stated that donation boxes can be unsightly in

large numbers in one particular area. App. 24a-25a.

Observing that the majority’s holding rested entirely on

Vincent, Judge Graves explained that the City must show

evidence that “boxes anywhere, in any condition, was the

problem the City sought out to address” before imposing

a near-total ban on this fully protected speech. App.

27a. “But it does not.” Id. The record “shows that boxes

created specific problems; that the city created specific

provisions to address those specific problems; and that it

also created a zoning provision attacking the boxes much

more indiscriminately.” Id.

On August 16, 2024, the Fifth Circuit denied en banc

review.

REASONS FOR GRANTING THE WRIT

THE STA NDARD - OF-REVIEW QUESTION

MERITS THIS COURT’S REVIEW.

The Holding Below Conflicts With This Court’s

Precedent Requiring The Most Exacting

Scrutiny For Laws Regulating The Solicitation

Of Charitable And Religious Contributions.

As this Court has long recognized, charitable appeals

for support “involve a variety of speech interests—

communication of information, the dissemination and

propagation of views and ideas, and the advocacy of

causes—that are within the protection of the First

Amendment.” Schaumburg v. Citizens for a Better Env’t,

444 U.S. 620, 632 (1980). Therefore, the “[r]egulation of a

solicitation must be undertaken with due regard for the

reality that solicitation is characteristically intertwined

with informative and perhaps persuasive speech ... and

for the reality that without solicitation the flow of such

information and advocacy would likely cease.” Riley,

487 U.S. at 796 (internal quotations omitted) (quoting

Schaumburg, 444 U.S. at 632; Sec’y of State of Md. v.

Joseph H. Munson Co., 467 U.S. 947, 959-60 (1984)); see

also Meyer v. Grant, 486 U.S. 414, 422, n.5 (1988); Thomas

v. Collins, 323 U.S. 516, 539-41 (1945).

This Court also has “long understood as implicit in

the right to engage in activities protected by the First

Amendment a corresponding right to associate with

others.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984).

Protected association furthers “a wide variety of political,

social, economic, educational, religious, and cultural ends,”

and “is especially important in preserving political and

cultural diversity and in shielding dissident expression

from suppression by the majority.” Ams. for Prosperity

Found. v. Bonta, 594 U.S. 595, 606 (2021).

This case involves a ban on the intertwined First

Amendment activities of speech and association. The

standard of review for laws restricting the solicitation

of donations, whether brought as speech claims or

association claims, has always been the most exacting

First Amendment scrutiny. See id. at 618; Riley, 487 U.S.

at 800-01; Munson, 467 U.S. at 969; Schaumburg, 444

U.S. at 636-38; Cantwell v. Connecticut, 310 U.S. 296,

305 (1940).

In Cantwell v. Connecticut, this Court made clear that

a regulation of solicitation that was neutral as to religion

but unreasonably obstructed the collection of donations

would be constitutionally objectionable. 310 U.S. at 305

(such a regulation would “constitute a prohibited previous

restraint on the free exercise of religion or interpose an

inadmissible obstacle to its exercise”).

Likewise, in Thomas v. Collins, this Court held that

the requirement to register and obtain a license in advance

of communicating a charitable or religious appeal for

support and collecting donations must be done “in such a

manner as not to intrude upon the rights of free speech

and free assembly.” 323 U.S. at 540-41. That is because

the simple fact that “one must inform the government of

his desire to speak and must fill out appropriate forms and

comply with applicable regulations discourages citizens

from speaking.” N.A.A.C.P. v. City of Richmond, 743 F.2d

1346, 1355 (9th Cir. 1984).

Seminal here is the trilogy of Schaumburg, Munson

and Riley, in which the Supreme Court thrice applied

the most exacting scrutiny to laws regulating charitable

solicitations, which the Court explained could include

messages about religious, charitable, social, or political

causes. Riley, 487 U.S. at 800-01; Munson, 467 U.S. at

969; Schaumburg, 444 U.S. at 636-38. In all three cases,

the Court required a sufficiently substantial interest

and narrowly tailored means to uphold a restriction on

solicitation. Id.

The Schaumburg trilogy is black-letter law rooted in

tradition, history, and precedent dating back to Thomas,

323 U.S. at 540-41, Thornhill v. Alabama, 310 U.S. 88, 97

(1940), Cantwell, 310 U.S. at 305, Schneider v. State, 308

U.S. 147, 164 (1939), and Lovell v. Griffin, 303 U.S. 444,

450 (1938). Its progeny is far-reaching, nearing a century

of First Amendment jurisprudence strictly protecting the

solicitation of donations, which is inherently intertwined

with the advocacy of causes. See Bonta, 594 U.S. at 618

(“First Amendment protects right to solicit charitable

contributions”) (citing Schaumburg, 444 U.S. at 633);

Meyer, 486 U.S. at 422 n.5 (“Our recognition that the

solicitation of signatures for a petition involves protected

speech follows from our recognition in Schaumburg ... that

the solicitation of charitable contributions often involves

speech protected by the First Amendment and that any

attempt to regulate solicitation would necessarily infringe

that speech”).

In Williams-Yulee v. Fla. Bar, this Court again

affirmed that it has “applied exacting scrutiny to laws

restricting the solicitation of contributions to charity,

upholding the speech limitations only if they are narrowly

tailored to serve a compelling interest.” 575 U.S. 433, 442

(2015) (citing Riley, 487 U.S. at 798); compare United

States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813

(2000) (to satisfy strict scrutiny, the government must

show the regulation is “narrowly tailored to promote a

compelling Government interest”).

Most recently, in Amer icans for Prosper ity

Foundation v. Bonta, this Court applied exacting scrutiny

to a licensing law restricting the solicitation of charitable

donations and the corresponding rights of speech

and association. 594 U.S. at 618 (facially invalidating

requirement that charity identify major donors as

condition precedent to registration). While the majority

in that case split 3-3 on whether the standard should be

called “exacting” or “strict” scrutiny, what is clear is that

a 6-3-majority agreed that a restriction on the speech

and association rights inherent in the solicitation and

collection of donations required a standard stricter than

intermediate scrutiny. Compare id. at 608-11 (Roberts,

C. J., joined by Kavanaugh and Barrett, JJ., applying

exacting scrutiny) with id. at 619-23 (concurrences by

Thomas, J., and Alito, J., joined by Gorsuch, J., requiring

strict scrutiny).

The split panel’s decision below to apply intermediate

scrutiny, and to uphold a near-complete ban on donation

boxes on consenting private property based on a

“government-said-so” rationale, is irreconcilable with this

Court’s prior precedent. That precedent requires stricter

scrutiny for regulations of the solicitation and collection of

donations, which inherently implicate the rights of speech

and association of the organizations and donors who wish

to support the causes of their choice. “Broad prophylactic

rules in the area of free expression are suspect. Precision

of regulation must be the touchstone”. Riley, 487 U.S. at

801 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)).

B. The Decision Below Deepens An Entrenched

Circuit Split Regarding Standard Of Review.

Initially, the Fifth and Sixth Circuits followed the

long line of Supreme Court precedent discussed above

and applied strict scrutiny to donation-box ordinances. See

Abbott, 647 F.3d at 213-14; Planet Aid, 782 F.3d at 330; see

also Linc-Drop, Inc. v. City of Lincoln, 996 F. Supp. 2d

845, 855 (D. Neb. 2014) (holding donation boxes placed

by for-profit professionals on behalf of charities are fully

protected charitable solicitations; applying strict scrutiny).

However, the court below flipped the Fifth Circuit to the

other side of the split. Now two circuits—the Ninth Circuit

and the Fifth Circuit below—have applied intermediate

scrutiny after finding donation-box laws were contentneutral. See App. 13a-19a; Recycle for Change v. City of

Oakland, 856 F.3d 666, 668-70 (9th Cir. 2017).

The Sixth Circuit versus the Ninth Circuit

and post-Reagan Fifth Circuit

In Planet Aid, the Sixth Circuit relied on Schaumburg,

Munson, Riley, and the Fifth Circuit’s earlier decision in

Abbott to strike down a nearly identical ban on donation

boxes in St. Johns, Michigan. 782 F.3d at 324-25. The

Planet Aid Court explained that “[a] charitable donation

bin can—and does—‘speak’” in a multitude of ways.

Id. at 325. “A passer-by who sees a donation bin may

be motivated ... to research the charity” and “gain new

information about the social problem the charity seeks to

remedy.” Id. The donation box may motivate citizens to

donate, or inspire them “to learn more about each charity’s

mission in deciding which charity is consistent with his

values....” Id.

The Sixth Circuit held the St. Johns ordinance was

content-based because it regulated by topic or subjectmatter. Id. at 328. Indeed, it did “not ban or regulate all

unattended, outdoor receptacles.” Id. To the contrary,

the ordinance banned “only those unattended, outdoor

receptacles with an expressive message on a particular

topic—charitable solicitation and giving.” Id. St. Johns

thus treated trash and recycling bins more favorably

than boxes soliciting donations for charitable, religious,

environmental, or other causes. The Sixth Circuit applied

strict scrutiny, and without deciding whether the city’s

interest was compelling, it found the prohibition was

insufficiently tailored. Id. at 330-31.

The Sixth Circuit’s reasoning squarely applies here.

If Arlington had imposed a permitting scheme for all

outdoor receptacles—including those collecting trash

and recycling—and restricted all receptacles’ size,

construction, maintenance, upkeep, placement, and

clustering, then the law would have been content-neutral.

Notably, such a regulation could not have included a zoning

ban, because trash cans could not realistically be banned in

all (or even any) zones. Thus, a content-neutral regulation

would protect against such overbroad prohibitions and

ensure that all receptacles are regulated reasonably. If the

enacted ban is not a reasonable regulation of trash cans, it

certainly is not a reasonable regulation of the solicitation

and collection of charitable and religious donations.

If Arlington wants to regulate receptacles by subject

matter, it certainly can, but only if it satisfies strict

scrutiny. Approximately 45 states regulate the solicitation

of donations, requiring registration and permitting and

imposing numerous other restrictions at the state level.

But those regulations are subject to strict scrutiny for

the same reason Arlington’s Donation Box Law is—they

regulate by subject matter and thus are content-based.

See Kissel v. Seagull, 552 F. Supp. 3d 277, 289-90 (D.

Conn. 2021).

For example, in State v. TVI, the Supreme Court of

Washington unanimously affirmed that strict scrutiny

applies to the state’s restriction of charitable solicitations.

1 Wn.3d 118, 129 (Wash. 2023). Following the Schaumburg

trilogy and Abbott, the TVI Court affirmed that “[c]haritable

solicitations are fully protected by the First Amendment,

so the State must satisfy ‘exacting’ or ‘strict’ scrutiny to

justify content-based restrictions.” Id. (citing Riley 487

U.S. at 798).

Notwithstanding, the Fifth Circuit below acknowledged

it split from the Sixth Circuit, see App. 8a, and concluded

Arlington’s Donation Box Law is content-neutral, relying

on this Court’s recent decision in Reagan, 596 U.S. at 69,

and the Ninth Circuit’s decision in Recycle for Change,

856 F.3d at 668-70. The Fifth Circuit reasoned that “[a]

regulation that ‘requires an examination of speech only

in service of drawing neutral, location-based lines’ and ‘is

agnostic as to content’ is content-neutral.” App. 8a. The

court further reasoned that “restrictions on solicitation

are not content based and do not inherently present the

potential for becoming a means of suppressing a particular

point of view, so long as they do not discriminate based on

topic, subject matter, or viewpoint”. Id. (quoting Reagan,

596 U.S. at 72) (emphasis added).

While acknowledging the dicta in Reagan about

regulating solicitation, however, the court below ignored

the blatant subject-matter distinction in the plain text

of Arlington’s Donation Box Law. See App. 9a, 33a

(“donation box” defined as a receptacle “intended for

use as a collection point for accepting donated textiles,

clothing, shoes, books, toys, dishes, household items”) and

App. 94a (§ 3.06(I)) (a “donation box shall only be used

for the solicitation and collection of [donated] clothing

and household items.”) (emphasis added). The law does

not regulate only based on location. It is not agnostic as

to content. The distinction by subject matter is clear—

Arlington’s Donation Box Law applies only if a box solicits

donations.

The court below overlooked other content distinctions,

as well. For example, it overlooked the compelled-speech

disclosure requirement in the Donation Box Law at

§ 3.03(J), see App. 91a, erroneously concluding “[t]he

signage on the donation boxes is of no consequence.” App.

9a; but see App. 13a (acknowledging compelled disclosures

“necessarily alter[] the content of the speech”). Further,

prohibitions on speech necessarily alter the content of the

message. Riley, 487 U.S. at 795-801 (holding there is no

constitutionally significant difference between compelled

speech and compelled silence). Whether the content is

mandated through disclosures or prohibited by broad,

prophylactic restraints like Arlington’s, the difference is

constitutionally insignificant. Id. at 796-97. This Court

applies the same strict scrutiny. Id.

The court below focused on the Donation Box Law’s

placement restrictions, ignored its content distinctions,

and concluded that Arlington treats all donation boxes

equally. App. 9a-11a. The court held that the Donation Box

Law “‘discriminates on the basis of non-expressive, noncommunicative conduct’—solicitation manner and place—

but does ‘not discriminate based on topic, subject matter,

or viewpoint’”. App. 9a (quoting Recycle for Change, 856

F.3d at 672; Reagan, 596 U.S. at 72). Yet zoning a medium

of fully protected speech out of almost an entire city based

on the subject matter of the message—the solicitation of

donations—is hardly a neutral time, place, or manner

restriction.

The Ninth Circuit similarly ignored the subjectmatter distinction in Oakland’s donation-box law in

Recycle for Change, 856 F.3d at 671. Despite recognizing

“the message expressed by UDCBs [soliciting and]

accepting charitable donations constitutes ‘content’” and,

therefore, the regulation thereof is content regulation,

the Ninth Circuit erroneously determined “the activity of

collecting ... personal items—or the solicitation of items to

further such activity” is not “communicative content” at

all. Id. at 671-72. The Ninth Circuit’s decision in Recycle

for Change contravened Cantwell, Thomas, and more than

80 years of this Court’s precedent.

Under Reed v. Town of Gilbert, 576 U.S. 155 (2015)

and Reagan, a regulation is facially content-based if it

“‘target[s] speech based on its communicative content’—

that is, if it ‘applies to particular speech because of the

topic discussed or the idea or message expressed.’”

Reagan, 596 U.S. at 69 (quoting Reed, 576 U.S. at 163).

“Some facial distinctions based on a message are obvious,

defining regulated speech by particular subject matter,

and others are more subtle, defining regulated speech

by its function or purpose. Both are distinctions drawn

based on the message a speaker conveys, and, therefore,

are subject to strict scrutiny.” Reed, 576 U.S. at 163-64

(emphases added).

The subject-matter content distinction in Arlington’s

Donation Box Law is not subtle. See Bruni v. City

of Pittsburgh, 141 S. Ct. 578, 578 (2021) (Thomas, J.,

concurring) (this is subject matter regulation and “strict

scrutiny is the proper standard of review”) (quoting Reed,

576 U.S. at 169)).

The Sixth Circuit got it right.

This case is the same as Planet Aid and Reed. Nothing

in Reagan changes that. Unlike the off-premises signage

regulation at issue in Reagan, the Donation Box Law is

subject-matter regulation. See Reagan, 596 U.S. at 72.

Arlington’s zoning ban applies because of the topic or

subject matter of the message—it applies only because a

receptacle solicits donations. As in Planet Aid, Arlington’s

law prohibits outright “an entire subclass of [bins] ...

with an expressive message protected by the First

Amendment.” 782 F.3d at 329-30. Yet, it allows trash bins

in every zone, even though they have the same risks of

overflow and blight. See id.

This Court warned in Reagan that a “regulation of

speech cannot escape classification as facially content

based simply by swapping an obvious subject matter

distinction”—i.e., charitable solicitation—for a “‘function

or purpose’ proxy”—i.e., the solicitation and collection of

donated clothing and household items—that achieves the

same result. 596 U.S. at 74. That is exactly what Arlington

and Oakland have done.

The donation-box laws enacted by Arlington and

St. Johns are nearly identical, down to the definition

of “donation box.” Both define the regulated speech by

subject matter—the solicitation of donations—and involve

near-complete prohibitions on fully protected charitable

and religious solicitations, squarely regulating the topic of

charitable giving. As the Sixth Circuit confirmed in Planet

Aid, “‘it is of no moment’ whether the [ban] is labeled

‘complete’ or ‘total’ because ‘[t]he distinction between

laws burdening and laws banning speech is but a matter

of degree.’” 782 F.3d at 331 (quoting Playboy, 529 U.S. at

812); see also Munson, 467 U.S. at 969 (both are, in effect,

a “before-the-fact prohibition on solicitation”).

Both laws prohibit bins because they communicate a

solicitation for donations, regardless whether the purpose

is charitable, religious, political, social, or environmental.

This is “a paradigmatic example of content-based

discrimination, singl[ing] out specific subject matter

for differential treatment, even if it does not target

viewpoints within that subject matter.” Reed, 576 U.S. at

156 (emphasis added). Strict scrutiny is due.

II. THE NARROW-TAILORING ISSUE MERITS

THIS COURT’S REVIEW.

The court below erroneously applied intermediate

scrutiny. Even under that standard, however, the

zoning ban fails because it is not narrowly tailored.

Under intermediate scrutiny, a law “must not ‘burden

substantially more speech than is necessary to further

the government’s legitimate interests.’” McCullen, 573

U.S. at 486 (quoting Ward, 491 U.S. at 799).

The Fifth Circuit Eviscerated The NarrowTailoring Prong Of Intermediate Scrutiny,

Violating McCullen.

The divided panel below acknowledged it was required

to follow McCullen’s narrow-tailoring requirements.

App. 15a. To establish narrow tailoring under McCullen,

“the city was required to ‘demonstrate that alternative

measures that burden substantially less speech ... fail

to achieve [its] interests.” App. 24a (quoting 573 U.S. at

495). In other words, Arlington had to produce evidence

of why a complete ban in each of 25 zones was actually

necessary. App. 60a. But the City failed to do so, and the

majority below erred by not requiring that evidentiary

showing in concluding the zoning ban was appropriately

tailored. App. 15a-19a.

The purpose clause of the 2018 Ordinance identifies

the City’s interest in “provid[ing] efficient legal remedies

for unpermitted or poorly maintained donation boxes.”

App. 24a-25a; App. 86a (§1.02) (emphases added). The 2016

Ordinance states the same, explaining the proliferation

of donation boxes “for charitable purposes” had resulted

in problems with maintenance and identifying persons

responsible for the bins. App. 71a, 73a (Whereas clauses;

§ 1.02). The Staff Report accompanying the 2018

amendments explained that “the City wants to ensure”

bins “are maintained in a manner that minimizes the risk

of blight.” ROA.1192 (emphasis added).

As Judge Graves and the district court found, the

non-zoning provisions in Arlington’s Donation Box Law

already address all of the City’s stated concerns without

the need for the zoning ban. App. 25a-26a. The “district

court did not just invent ‘some less-speech-restrictive

alternative’ and speculate that it ‘could ... adequately

serve[] the city’s interests.” Id. (quotation omitted). “It

examined ordinance provisions that the city itself had

adopted and found them to be both narrowly tailored to the

city’s concerns and substantially less speech restrictive

than the zoning provision.” App. 25a-26a.

T hose other prov isions a l ready rest r ict the

“construction, labeling, maintenance, upkeep, signage,

color, placement, clustering, and unchecked accumulation

of boxes,” and they “precisely target[]” the City’s stated

interest in improving maintenance. Id. Arlington failed to

provide any evidence that those less-restrictive measures

are insufficient to achieve its goals in the banned areas.

App. 25a. To be sure, under intermediate scrutiny,

Arlington need not pick the least-restrictive means of

achieving its interests. But it must show that its law does

not restrict more speech than necessary.

The “zoning provision’s effect is ... drastic.” App. 26a.

“It outright bans the boxes not just from the Community

Commercial zones that are the focus of the city’s concerns,

but also from the 577 city acres that are zoned Office

Commercial and from all residential zones, where at least

some churches are located.” Id. All this despite that its

study—which predates its maintenance requirements—

found only some boxes had maintenance problems, most

located in Community Commercial areas. App. 59a.

The majority below counters that “allowing only one

donation box per lot does little to address Arlington’s

proliferation concern,” App. 18a, but this conclusory

statement is unsupported by any record evidence. Without

an evidentiary showing that other less burdensome,

narrowly tailored alternatives are insufficient to achieve

the legislature’s interests, the majority’s unsupported

conclusion that the zoning provision is narrowly tailored

contravenes McCullen. 573 U.S. at 493 (“For a problem

shown to arise only once a week in one city ... creating 35foot buffer zones at every clinic across the Commonwealth

is hardly a narrowly tailored solution.”).

The court below eviscerated the narrow-tailoring

requirement of intermediate scrutiny.

B. The Fifth Circuit Improperly Extended

Vincent.

Rather than analyzing narrow tailoring as required

under McCullen, the majority below condoned a “becausethe-government-says-so” approach to banning protected

speech.

Invoking Vincent, which upheld a complete ban on

posting fliers on public property, the majority found that

Arlington can ban fully protected speech on consenting

private property without narrow tailoring simply because

the government says in litigation that all donation boxes

are “unsightly.” App. 16a-17a (citing 466 U.S. 789 (1984)).

As Judge Graves explains, that is wrong even under

Vincent, which is inapplicable in any event. App. 27a.

First, Arlington pivoted on appeal to argue in its

briefs—unsupported by the text and legislative history

of the Donation Box Law—that its interest is in banning

all donation boxes because they are “unsightly” when

“well maintained.” App. 3a, 13a, 16a. The majority below

accepted that argument, even though the City provided

no evidence to support that was ever the City’s interest.

All the majority cited was a declaration in this

litigation by the City’s code enforcement director, but even

that declaration does not state that all bins are “unsightly.”

App. 25a. Moreover, as the dissent points out, the City’s

own visual survey proves the opposite. Id. The study

shows only some bins exhibited maintenance issues, and

“some boxes had no problems, including boxes collecting

donations for [Petitioner Arms of Hope].” App. 25a.

The government bears the burden of proving its

restrictions are narrowly tailored to its stated purpose.

McCullen, 573 U.S. at 495; Ward, 491 U.S. at 788-89.

While the City’s pretextual, illegitimate goal may be to

rid Arlington of donation boxes because it does not like

them (which is what the zoning provision effectively does),

that is not the legislature’s stated purpose.

The majority below states the “dissent at 3 would

require record evidence showing ‘the existence of boxes

anywhere, in any condition, was the problem the city set

out to address’ before applying ... Vincent.” App. 16a.

Judge Graves is right. See McCullen, 573 U.S. at 495. And

there is no such evidence.

The district court likewise explained that a ban on

donation boxes in 25 of 28 zoning districts is not narrowly

tailored “unless justified by evidence that the Ordinance’s

other regulations and/or less restrictive [] limitations have

proven ineffective to control bin-associated ills in those

areas.” App. 60a (emphasis added). Arlington made no

such showing.

“In Vincent, the Court differentiated between

narrowly tailored rules that ‘respond[] precisely’ to a

city’s problems and broad rules that end up ‘gratuitously

infring[ing] upon’ protected speech. The zoning provision

is an example of the latter.” App. 27a (quoting 466 U.S. at

810). Had the court below correctly applied this Court’s

narrow-tailoring requirement, it would have found

the zoning ban—by banning clean, well-maintained

charitable donation boxes in most of Arlington—prohibits

substantially more speech than necessary. App. 24a-28a.

Second, Vincent is inapplicable. In Gilleo, 512 U.S.

at 54, this Court limited the application of Vincent

to mediums of speech that are not uniquely valuable

and important modes of communication. App. 17a. The

Charities argued “donation boxes are a uniquely valuable

and important mode of communication.” Id. As the court

below recognized, charitable donation boxes are fully

protected speech. App. 7a. Yet it summarily dismissed

the Charities’ argument, concluding that “unlike Gilleo’s

residential signs, donation boxes ‘have [not] long been

an important and distinct medium of expression.’” App.

17a-18a.

That is incorrect. The charity box can be traced

back thousands of years in the Jewish faith. Known as

“tzedakah boxes”, they have historically been placed at

synagogues. See Laura Mogil, A History of Giving, N.Y.

Times, Sept. 6, 2007. Likewise, in the Christian faith,

receptacles known as “donation boxes,” “alms boxes,”

“poor boxes,” “offertory boxes,” or “mite boxes” have

been placed at churches since the earliest days of the

religion. Indeed, the donation box is described in an

Old Testament verse relating how the First Temple in

Jerusalem collected donations for its repair: “in a chest

with a hole bored through the top.” Id.; 2 Chronicles 24:8

(“King Joash commanded that a box for contributions be

made. They put it outside, at the gate of the Temple of the

Lord.”); see also Luke 21:1-4 (poor widow casting her mite

into the donation box).

The Widow’s Mite, mosaic from Sant’Apollinare Nuovo,

Ravenna. See Brian Kelly, She Came, God Saw, She

Conquered, Catholicism.org (Aug. 5, 2017).

The placement of donation boxes by charities outside

commercial areas in America dates back to at least 1891,

with the Salvation Army’s Red Kettle campaign. Ashley

Williams, In the Spirit of giving? What to know about

the Salvation Army’s annual Red Kettle campaign,

USA Today, Dec. 7, 2022. Historical records show that

placing donation boxes in commercial areas, where they

could be seen and accessed by donors, was commonplace

in American cities since the late 1800s. See “Charity

Box Opened,” The Clinton Morning Age (Mar. 16, 1895)

(donation box at Freund & Witzigman’s shoe store was

ceremoniously opened); Lawrence Daily Journal (Apr. 24,

1890) (encouraging the public to make a donation in the

Hospital donation box at the post office); “A Donation Box

Stolen,” The Philadelphia Record (July 3, 1889) (noting

theft of a donation box at Twentieth and Tioga streets,

in which contributions for the Johnstown sufferers were

being deposited); see also “Couldn’t Feel at Home,” The

Kentucky New Era (Mar. 25, 1881) (fictional story in 1881

Newspaper involving donation box of an orphan asylum).

While placement of donation receptacles by charities

on private commercial property dates back more than

130 years, placement at synagogues, churches, and

religious schools has been a common practice for centuries.

Contrary to the Fifth Circuit’s erroneous finding, the

donation box is a “unique” and “important” medium of

fully protected charitable and religious expression, and

the history of donation boxes is well established.

III. THE QUESTIONS PRESENTED ARE IMPORTANT

AND RECURRING.

This case raises issues of exceptional First Amendment

importance that will guide local legislatures across the

country as they draft future laws regulating donation

boxes and other mediums of charitable and religious

solicitation. The Questions Presented are outcomedeterminative for the Charities and their civil liberties,

and they are recurring across the country.

The Issues Are Important.

First, had the Fifth Circuit applied strict scrutiny,

which is required here, this case would have had a different

outcome. Under strict scrutiny, if “a less restrictive

alternative would serve the [g]overnment’s purpose, [it]

must use that alternative.” Playboy, 529 U.S. at 813.

Second, if the Fifth Circuit had correctly applied

intermediate scrutiny under McCullen and Ward, this

case would have had a different outcome. That is because

there is no ends–means fit between the government’s

interest in controlling maintenance-related blight and an

outright ban on protected speech in 25 zones.

Third, clarification that stricter scrutiny applies,

even if the Court does not reach that stricter analysis,

is necessary to restore the rights of the Charities and

protect their most precious civil liberties moving forward.

The decision below also warrants further review

because it threatens grave harm to vital First Amendment

speech and religious interests on a national scale. The

Fifth Circuit’s holding, which grossly misapplies Reagan’s

dicta regarding solicitation regulation, condones citywide zoning prohibitions that ban charities and religious

organizations from using any medium of speech that the

government states in litigation it does not like, silencing

their protected speech and freedom to associate with

donors across the country.

Who is to say California will not rely on this precedent

to ban the solicitation of donations via online platforms?

See Cal. A.B. 488 (requiring online fundraising platforms

to register and remove charities from their online

platforms—causing them to lose significant donations—

if the Attorney General’s Office is negligent in timely

reviewing the charities’ applications for registration). Who

is to say the Federal Trade Commission will not rely on

this precedent to ban telephone calls soliciting donations?

See 47 U.S.C. § 227(b)(2) (authorizing FTC regulation of

certain telephone calls). What about banning a “donate

now” button on a website? See 01-000-150 Miss. Code R.

§ 2.08(A)(2) (requiring registration if a charity utilizes a

“donate now” button on its website).

The resulting chill w ill be felt nationw ide as

organizations and their donors grapple with overly broad

registration requirements and the attendant threats to

their speech and association.

The factual record in this case highlights the dramatic

consequences of the Fifth Circuit’s legal errors. Not only

did the majority jettison any need for narrow tailoring

in concluding that all donation boxes are “visual blight,”

App. 16a, but it dismissed contrary evidence in the

record, effectively demanding deference to self-serving,

conclusory statements by the government in its litigation

briefs.

By disregarding evidence of First Amendment

chill and governmental overreach while deferring to

Arlington’s bare and belated claim of “visual blight,” the

Fifth Circuit laid down a precedent that eviscerates the

narrow-tailoring requirement for fully protected speech

and shreds the First Amendment rights of charities and

religious organizations nationwide.

B. The Issues Are Recurring.

Prophylactic bans and burdens on donation boxes

are proliferating across the country. The City of Los

Angeles banned donation boxes in all residential zones

and within 100 feet of any residentially zoned lot, thereby

foreclosing most churches and faith-based schools as well

as viable commercial properties. See U’SAgain, LLC v.

City of L.A., No. CV 24-6210-CBM-BFMx, 2024 U.S.

Dist. LEXIS 161797, at *9-12 (C.D. Cal. Sep. 9, 2024). A

nonprofit—U’SAgain—challenged that donation-box law

and obtained a temporary restraining order. But after

the decision below issued, a federal district court in Los

Angeles denied the charity’s motion for a preliminary

injunction, and the TRO expired. Id. (relying on Nat’l

Fed’n of the Blind of Texas, Inc. v. City of Arlington,

Texas, 109 F.4th 728, 734-35 (5th Cir. 2024)).

The City of Marietta, Georgia also bans donation boxes

in all residential zones, prohibiting placement at most

churches and schools as well as some viable commercial

properties like gas stations and convenience stores. See

City of Marietta, Georgia, Zoning Ordinance, Div. 710,

§ 710.07(A). In Ypsilanti, Michigan, the City banned all

donation boxes unless the property owner applied for

an overly burdensome site plan (requiring boundary

surveys, etc.) and a zoning variance to allow the donation

box. Planet Aid v. Ypsilanti Twp., 26 F. Supp. 3d 683, 686

(E.D. Mich. 2014). A charity—Planet Aid—challenged

the restriction. Id. The district court denied Planet Aid’s

motion for preliminary injunction, holding that because

the law was a partial ban and not a complete ban, strict

scrutiny should not apply. Id. at 688, 694.

The City of West Warwick, Rhode Island, has adopted

a protectionist ordinance that only allows organizations

incorporated in the State of Rhode Island to place donation

boxes, excluding out-of-state charities that operate

charitable or religious programs in the state. See Town

of West Warwick, Ordinance No. 2019-9 § 10-188(d)(1)(a)(b). The ordinance also requires the charity to own the

donation box, excluding charities that lease or contract

for the use of their donation receptacles. Id. at (d)(1)(c). A

city cannot force a charity to take on the cost-prohibitive

expense of purchasing bins, which would require the

charity to bear the risk of loss and the additional cost of

replacing those bins over time, as opposed to leasing the

bins and requiring the owner or manufacturer to provide a

replacement if the bin is damaged by no fault of the charity.

Such a protectionist regulation is overbroad, bearing no

relationship to the town’s interests in public safety or the

prevention of blight, and it usurps the business judgment

of the charity. It prohibits protected speech.

These issues are recurring and will continue to

create disparate outcomes for charities and religious

organizations in the lower courts, absent this Court’s

immediate intervention.

IV. THIS CASE IS AN IDEAL VEHICLE TO ADDRESS

THE QUESTIONS PRESENTED.

The Questions Presented are well-percolated in the

lower courts, which will continue to follow the erroneous

decisions of the Fifth and Ninth Circuits to the detriment

of charitable and religious speakers nationwide. Absent

reversal, the circuit split will continue to divide. This

vehicle is ideal because the issues are narrow and confined,

and clarification from this Court would resolve the

confusion caused by Reagan for lower courts analyzing

prohibitions on fully protected solicitations for donations.

In addition, this case offers an appropriate vehicle to

overturn or limit Vincent.

Unless reversed, the ruling below opens the proverbial

floodgates to governmental justifications of complete

bans on protected speech activity and religious practices

“because the government said so.” This ruling opens the

door to governmental bans on any medium of charitable

solicitation so long as the government states in litigation

that it does not like it. If the decision below stands,

subsequent challengers will be hard pressed to secure

the relief necessary to ward off a city-wide (or even

state-wide) prohibition on their protected speech and

association while a case winds its way to this Court. These

potential problems afford additional reason why this Court

should use this case to take up and decide the Questions

Presented.

CONCLUSION

The petition should be granted.

Respectfully submitted,

Kelly Shackelford

Jeffrey C. Mateer

Hiram S. Sasser III

David J. Hacker

Tiffany Dunkin

First Liberty Institute

2001 West Plano Parkway,

Suite 1600

Plano, TX 75075

K aren Donnelly

Counsel of Record

Errol Copilevitz

Copilevitz, Lam

& Raney, P.C.

310 West 20th Street,

Suite 300

Kansas City, MO 64108

(816) 472-9000

kdonnelly@clrkc.com

Bennett Rawicki

Hilgers Graben PLLC

7859 Walnut Hill Lane,

Suite 335

Dallas, TX 75230

Counsel for Petitioners

January 13, 2024

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED JULY 17, 2024 . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF TEXAS, DALLAS DIVISION,

FILED SEPTEMBER 9, 2022 . . . . . . . . . . . . . . . . 29a

A P P E N DI X C — O R D E R D E N Y I N G

REHEARING OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH

CIRCUIT, FILED AUGUST 16, 2024 . . . . . . . . . . 69a

APPENDIX D — ARLINGTON ORDINANCES

16-020 (041216) AND 18-044 (082118) . . . . . . . . . . . 71a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT, FILED JULY 17, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-10034

NATIONAL FEDERATION OF THE BLIND OF

TEXAS, INCORPORATED, A TEXAS NONPROFIT

CORPORATION; ARMS OF HOPE, A TEXAS

NONPROFIT CORPORATION,

Plaintiffs-Appellees/Cross-Appellants,

versus

CITY OF ARLINGTON, TEXAS,

A MUNICIPAL CORPORATION,

Defendant-Appellant/Cross-Appellee.

July 17, 2024, Filed

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:21-CV-2028.

Before Barksdale , S outhwick , and Graves , Circuit

Judges.

Rhesa Hawkins Barksdale, Circuit Judge:

Appendix A

These cross-appeals contest the partial summary

judgments granted each side, concerning Appellant’s

ordinance regulating donation boxes in Arlington, Texas

(Arlington). Arlington claims the district court reversibly

erred in concluding the ordinance violated the First

Amendment by restricting the permissible location of

donation boxes to three zoning districts. Cross-Appellants

contest the conclusions that the ordinance was neither

overbroad nor a prior restraint, and that its setback

requirement was constitutional. That part of the judgment

concerning the limitation on donation-box locations to

certain zoning districts is VACATED and judgment is

RENDERED for Arlington on that part; the balance of

the judgment is AFFIRMED.

The following recitation of facts is, of course, based

on the summary-judgment record. It includes, inter alia:

the ordinances; the parties’ motions; the declaration of

Arlington’s code-compliance services director; the sworn

statements and depositions of the Cross-Appellants’

presidents; Arlington’s visual survey of donation boxes;

and its supplement to the visual survey.

Cross-Appellants National Federation of the Blind of

Texas, Inc. (NFBT), and Arms of Hope (AOH) (collectively

Charities) are nonprofit organizations operating in Texas.

As one of several means of fundraising, the Charities

partner with third-party companies to place donation

boxes bearing the Charities’ signage throughout the city.

Appendix A

The donation boxes are unattended, stand-alone

receptacles that are typically about five feet wide, four

feet long, and six feet tall. Commonly constructed of

wood, though sometimes metal, the donation boxes are

usually enclosed, with an opening on the front for receiving

donated property.

The Charities’ third-party partners purchase the

donated items at 6.6¢ a pound ($66.00 per thousand

pounds) and resell the items at for-profit thrift stores.

In addition to generating revenue for the Charities, the

donation boxes build awareness for, and communicate an

appeal to support, their causes.

Donation boxes were, until several years ago,

unregulated in Arlington. By 2015, there were nearly 100

throughout the city, with many in its center. Arlington’s

code-enforcement officers often fielded complaints about

unmaintained donation boxes. In deliberating on potential

regulation, Arlington identified numerous problems

associated with the donation boxes, inter alia: overflowing

donated items; operators’ failing to maintain their boxes;

scavenging in and around the boxes; accumulation of

litter and glass around the boxes; and dumping of large

items (e.g., mattresses and couches) nearby. Additionally,

Arlington considered the donation boxes unsightly, even

when they were well-maintained.

In 2016, Arlington enacted an ordinance creating

the “Donation Boxes” chapter of the city code. In 2018, it

enacted Ordinance No. 18-044 (the Ordinance), amending

the 2016 ordinance. The Ordinance makes it “unlawful

Appendix A

for any person to place or maintain, or allow to be placed

or maintained, a donation box at any location within the

City of Arlington, without a valid permit”. Arlington,

Tex., Ordinance 18-044 § 3.01(A) (21 Aug. 2018). The

Ordinance is applicable to all donation boxes, regardless

of the operator’s non-profit or for-profit status. See id.

§§ 2.01, 3.01(A). The Ordinance defines a “donation box”

as “any drop-off box, container, trailer or other receptacle

that is intended for use as a collection point for accepting

donated textiles, clothing, shoes, books, toys, dishes,

household items, or other salvageable items of personal

property”. Id. § 2.01.

In addition to the permitting-requirement, the

Ordinance regulates donation boxes’ building material,

color, signage, size, upkeep, and maintenance. See id.

§§ 3.01-.06. It requires donation-box operators to, inter

alia: apply for a permit; place on the box the permit decal,

the operator’s contact information, and a notice that all

donations must fit within the box; regularly collect the

box’s contents to prevent overflow; and keep the property

around the box clean of trash and debris. Id. §§ 3.02-.03.

The Ordinance’s stated purpose is “to protect the public

health, safety and welfare of Arlington residents[,] . . .

protect the aesthetic well-being of the community[,] and

promote the tidy and ordered appearance of developed

property”. Id. § 1.02. Two sections of the Ordinance are

especially at issue in this action: a zoning provision limiting

the permissible placement of donation boxes to three of

the city’s 28 zoning districts, id. § 3.01(C); and a setback

requirement, mandating that donation boxes, if adjacent to

Appendix A

a street right-of-way, be placed either behind an existing

landscape setback or 40-feet away, id. § 3.03(I). Between

the Ordinance’s enactment and spring 2022, Arlington

received nine applications for permits and granted five.

After NFBT filed this action pursuant to 42 U.S.C.

§ 1983, the court permitted AOH’s joinder. The Charities

contended the Ordinance was facially unconstitutional

because: its zoning provision violated the First Amendment

(Count I); its setback requirement violated the First

Amendment (Count II); it was overbroad (Count III); and

its permit requirements operated as an impermissible

prior restraint (Count IV). (The Charities also made asapplied challenges in Counts II (setback requirement) and

IV (permitting-requirement). The court concluded those

challenges were waived, and the Charities do not dispute

that ruling on appeal.) The Charities sought declaratory

and injunctive relief.

After discovery, both sides moved for summary

judgment. The court granted Arlington’s summaryjudgment motion for Counts II—IV. For Count I (the

zoning provision), however, the court concluded the

provision was facially unconstitutional because it was

not narrowly tailored; and it enjoined Arlington from

enforcing the zoning provision against the Charities.

II.

Arlington asserts the court properly reviewed the

Ordinance under the intermediate-scrutiny standard, but

erred in concluding the zoning provision was not narrowly

Appendix A

tailored. The Charities counter that the court properly

ruled the zoning provision was unconstitutional. In their

cross-appeal, they assert the court erred by: not applying

strict scrutiny; limiting the zoning-provision injunction to

the Charities; concluding the setback requirement was

constitutional; and not invalidating the Ordinance as a

prior restraint.

Our court “review[s] summary-judgment rulings

de novo, applying the same standard as the district

court”. Nat’l Press Photographers Ass’n v. McCraw, 90

F.4th 770, 781 (5th Cir. 2024). “Cross-motions must be

considered separately, as each movant bears the burden

of establishing that no genuine [dispute] of material fact

exists and that it is entitled to judgment as a matter of

law.” Id. (citation omitted); see also Fed. R. Civ. P. 56(a).

A facial challenge to an ordinance’s constitutionality

is “a pure question of law”. Ctr. for Individual Freedom

v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006). “Courts

generally disfavor facial challenges”. Voting for Am., Inc. v.

Steen, 732 F.3d 382, 386 (5th Cir. 2013). “A law implicating

the right to expression may be . . . invalidated on a facial

challenge if a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly

legitimate sweep.” Id. at 387 (citation omitted).

Because we hold for the following reasons that

the Ordinance’s contested provisions are facially

constitutional, we need not address either the Charities’

overbreadth claim (Count III), or whether the court erred

in limiting its now-vacated injunction to the Charities.

Appendix A

The First Amendment, applicable to municipalities

vested with state authority through the Fourteenth

Amendment, provides that governments “shall make no

law . . . abridging the freedom of speech”. U.S. Const.

amend. I; see, e.g., Reed v. Town of Gilbert, 576 U.S. 155,

163, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015). Charitable

solicitations are fully-protected speech; and, because

the Ordinance regulates all donation boxes, including

those operated by both charitable and non-charitable

organizations, at least some of the donation boxes regulated

by the Ordinance contain charitable solicitations. E.g., Vill.

of Schaumburg v. Citizens for a Better Env’t, 444 U.S.

620, 632-33, 100 S. Ct. 826, 63 L. Ed. 2d 73 (1980). The

Ordinance, therefore, implicates protected expression

and triggers First Amendment analysis. See id. We first

consider the Charities’ First Amendment challenges to

the zoning provision and setback requirement.

For a First Amendment challenge, the appropriate

level of scrutiny depends on whether the Ordinance is

content-based or content-neutral. If content-based, the

Ordinance is “presumptively unconstitutional” and must

survive strict scrutiny. Reed, 576 U.S. at 163. If contentneutral, intermediate scrutiny applies. E.g., City of Austin

v. Reagan Nat’l Adver. of Austin, LLC, 596 U.S. 61, 76,

142 S. Ct. 1464, 212 L. Ed. 2d 418 (2022). In making that

determination, our court engages in a two-step inquiry:

first, whether the Ordinance is facially content-neutral,

Appendix A

e.g., Reed, 576 U.S. at 163; if so, second, whether the

Ordinance has a content-based purpose or justification,

e.g., id. at 164.

Whether regulation of donation boxes’ placement

is content-neutral is a question of first impression for

our court. In decisions predating the Supreme Court’s

content-neutrality discussion in Reagan, the Sixth and

Ninth Circuits split on the question. See generally Planet

Aid v. City of St. Johns, 782 F.3d 318, 322, 328-30 (6th Cir.

2015) (concluding ordinance was content-based); Recycle

for Change v. City of Oakland, 856 F.3d 666, 668-70 (9th

Cir. 2017) (concluding ordinance was content-neutral).

As discussed above, we first consider facial contentneutrality. “A regulation of speech is facially content

based under the First Amendment if it ‘target[s] speech

based on its communicative content’—that is, if it ‘applies

to particular speech because of the topic discussed or

the idea or message expressed.’” Reagan, 596 U.S. at 69

(alteration in original) (quoting Reed, 576 U.S. at 163). A

regulation that “requires an examination of speech only

in service of drawing neutral, location-based lines” and

“is agnostic as to content” is content-neutral. Id. Further,

“restrictions on solicitation are not content based and do

not inherently present the potential for becoming a means

of suppressing a particular point of view, so long as they

do not discriminate based on topic, subject matter, or

viewpoint”. Id. at 72 (citation omitted).

Appendix A

The Ordinance prohibits the placement in certain

locations of “donation box[es]”: receptacles “intended for

use as a collection point for accepting donated . . . items

of personal property”. Ordinance 18-044 §§ 2.01 (defining

donation boxes), 3.01(C) (outlining permissible zoning

districts), 3.03(I) (outlining setback requirement). On its

face, the Ordinance regulates all donation boxes without

reference to content. The signage on the donation boxes is

of no consequence. See Reagan, 596 U.S. at 71-72. Neither

does the Ordinance discriminate based on the taxable

status, mission, or purpose of the person or entity placing

the donation box. It specifically regulates only the manner

and place of donation solicitation—e.g., solicitation in the

manner of a donation box, located in prohibited places.

Therefore, the Ordinance “discriminates on the

basis of non-expressive, non-communicative conduct”—

solicitation manner and place—but does “not discriminate

based on topic, subject matter, or viewpoint”. Recycle

for Change, 856 F.3d at 672; Reagan, 596 U.S. at 72.

Moreover, although the Ordinance curtails solicitation

by the manner of donation boxes, entities may continue

to solicit donations by all other means in all locations

within the city. The Supreme Court has concluded similar

restrictions on only the manner or place of expressive

conduct are facially content-neutral. See, e.g., Reagan,

596 U.S. at 71-74 (concluding regulation of off-premises

signs was location-based and content-neutral); Heffron

v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S.

640, 643, 648-50, 655, 101 S. Ct. 2559, 69 L. Ed. 2d 298

(1981) (concluding ordinance prohibiting distribution of

literature except in restricted area during state fair was

constitutional time, place, and manner regulation).

10a

Appendix A

In opposition, the Charities assert: by regulating

receptacles that solicit donations but no others (e.g.,

receptacles collecting trash or ballots), the Ordinance

targets charitable solicitations and is therefore contentbased. Compare Planet Aid, 782 F.3d at 328 (accepting

assertion that ordinance “bans only those [donation

boxes] with an expressive message on a particular

topic—charitable solicitation and giving”), with Recycle

for Change, 856 F.3d at 671 n.3 (critiquing Planet Aid).

Donated items, however, do not have an exclusively

charitable connotation. “[D]onate” means “[t]o give

(property or money) without receiving consideration for

the transfer”. Donate, Black ’s L aw Dictionary (11th

ed. 2019). “[D]onation” means “[a] gift, esp[ecially] to a

charity; something, esp[ecially] money, that someone gives

to a person or an organization by way of help”. Donation,

Black’s Law Dictionary (11th ed. 2019); see also Donation,

Oxford English Dictionary (2d ed. 1989) (“The action or

contract by which a person transfers the ownership of a

thing from himself to another, as a free gift.”). Neither

party offers a definition of “charity”, but it typically relates

to those in need. See Charity, Black’s Law Dictionary

(11th ed. 2019) (“Aid given to the poor, the suffering, or the

general community for religious, educational, economic,

public-safety, or medical purposes.”); Charity, MerriamWebster, https://www.merriam-webster.com/dictionary/

charity (last visited 5 June 2024) (defining “charity”

as, inter alia, “generosity and helpfulness especially

toward the needy or suffering”); Charitable, Black’s

Law Dictionary (11th ed. 2019) (“Dedicated to a general

public purpose, usu[ally] for the benefit of needy people

who cannot pay for benefits received”.).

11a

Appendix A

National Federation of the Blind of Texas, Inc. v.

Abbott further demonstrates that donation boxes can be

operated for non-charitable purposes. 647 F.3d 202 (5th

Cir. 2011). In Abbott, the act at issue required certain

disclosures from for-profit entities operating donation

boxes when, inter alia, “none of the proceeds from the

sale of the donated items will be given to a charitable

organization”. Id. at 206 (quoting Tex. Bus. & Com. Code

§ 17.922(b)).

As noted, the Ordinance regulates all donation

boxes, encompassing both charitable and non-charitable

solicitations. It “is agnostic as to content”, and, therefore,

facially content-neutral to the extent it regulates

expressive activity. Reagan, 596 U.S. at 69.

Therefore, as also discussed above, we turn to whether

the Ordinance has a content-based purpose or justification.

E.g., Reed, 576 U.S. at 164. The Charities do not contest

the district court’s conclusion that the Ordinance does not.

In the alternative, the Charities contend Abbott is

binding precedent, requiring application of strict scrutiny

here. Our court held in Abbott that Texas’ donation-box law

“regulates charitable solicitations and is to be evaluated

under Riley, Munson, and Schaumburg”. Abbott, 647 F.3d

at 214; see generally Riley v. Nat’l Fed’n of the Blind of

N.C., Inc., 487 U.S. 781, 108 S. Ct. 2667, 101 L. Ed. 2d 669

12a

Appendix A

(1988); Sec’y of State v. Joseph H. Munson Co., 467 U.S.

947, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984); Schaumburg,

444 U.S. 620. Under those cases, a regulation will “be

sustained as constitutional under the Speech Clause if (1) it

‘serves a sufficiently strong, subordinating interest that the

[government] is entitled to protect’ and (2) it is ‘narrowly

drawn . . . to serve the interest without unnecessarily

interfering with First Amendment freedoms’”. Abbott,

647 F.3d at 213 (alterations in original) (citation omitted)

(quoting Munson, 467 U.S. at 961). Although Riley,

Munson, and Schaumburg required a stricter scrutiny

in Abbott, their holding is inapplicable here.

First, the act in Abbott is distinguishable from the

Ordinance. The former required, inter alia, for-profit

entities to disclose aspects of their profit structure on

the public donation boxes they operated. Id. at 206. Here,

rather than forced disclosures, the Charities challenge

the Ordinance’s location restrictions and the asserted

vagueness of its permit requirements.

Second, the rule announced in Abbott applies only to

“disclosures”. See Abbott, 647 F.3d at 212-13 (“We must

first determine whether the public receptacle disclosures

at issue are merely commercial speech, . . . or whether

the disclosures are ‘charitable solicitations’ . . . . Having

determined that the public receptacle disclosures

at issue are charitable solicitations, we evaluate the

constitutionality of [the act] under [strict scrutiny].”

(emphasis added)). No “disclosures” are at issue here.

13a

Appendix A

Third, the act in Abbott was, in fact, content-based.

See, e.g., Riley, 487 U.S. at 795 (“Mandating speech that

a speaker would not otherwise make necessarily alters

the content of the speech.”); see also Nat’l Inst. of Fam.

& Life Advocs. v. Becerra, 585 U.S. 755, 766, 138 S. Ct.

2361, 201 L. Ed. 2d 835 (2018) (quoting Riley). As noted,

content-based regulations on speech are subject to strict

scrutiny. Reed, 576 U.S. at 163.

Accordingly, because the Ordinance is contentneutral, we, as also noted, analyze it under intermediate

scrutiny. Content-neutral regulations are permitted

when they are “narrowly tailored to serve a significant

government interest, and leave open ample alternative

channels of communication”. Perry Educ. Ass’n v. Perry

Loc. Educators’ Ass’n, 460 U.S. 37, 45, 103 S. Ct. 948, 74

L. Ed. 2d 794 (1983); see also Moore v. Brown, 868 F.3d

398, 403-04 (5th Cir. 2017) (outlining same standard).

Arlington asserts the significant government interests

of: protecting the public’s health, safety, and welfare;

safeguarding the community aesthetic; promoting

the ordered appearance of developed property; and

increasing the accountability of donation-box operators.

See Ordinance 18-044 § 1.02. The Charities do not dispute

these interests, and the Supreme Court has concluded they

are significant. See Members of City Council v. Taxpayers

for Vincent, 466 U.S. 789, 805-07, 104 S. Ct. 2118, 80

L. Ed. 2d 772 (1984) (“[M]unicipalities have a weighty,

essentially [a]esthetic interest in proscribing intrusive and

14a

Appendix A

unpleasant formats for expression”.); Metromedia, Inc. v.

City of San Diego, 453 U.S. 490, 510, 101 S. Ct. 2882, 69

L. Ed. 2d 800 (1981) (plurality opinion) (upholding city’s

aesthetic interest in removing billboards in part because

“[s]uch [a]esthetic judgments are necessarily subjective,

defying objective evaluation”); McCullen v. Coakley, 573

U.S. 464, 486-87, 134 S. Ct. 2518, 189 L. Ed. 2d 502 (2014)

(recognizing legitimacy of government’s interests in

“ensuring public safety and order, promoting the free flow

of traffic on streets and sidewalks, protecting property

rights” (citation omitted)).

As a result, the only remaining question is whether

the zoning provision and setback requirement are

(1) “narrowly tailored” and (2) “leave open ample

alternative channels of communication”. Perry, 460 U.S.

at 45.

Arlington must show the zoning provision is narrowly

tailored to serve its significant government interests.

See, e.g., Moore, 868 F.3d at 403-04 (outlining rule). The

zoning provision dictates, inter alia: “Donation boxes shall

only be permitted to be placed on real property located

within the following zoning use districts in the Unified

Development Code: Industrial Manufacturing (IM),

Light Industrial (LI), and General Commercial (GC)”.

Ordinance 18-044 § 3.01(C).

For Arlington’s 28 zoning districts, seven are “overlay”

districts, which only include acreage already accounted for

15a

Appendix A

by other districts, and four currently contain no acreage.

For the remaining 17 districts, nine are residential;

eight, non-residential. Arlington contends that allowing

donation boxes in three of its eight non-residential zoning

districts is narrowly tailored to its interests. These three

districts constitute 62 percent of all non-residentiallyzoned land in Arlington, comprising over 7,138 acres. The

Charities respond that they seek to place donation boxes

in residentially-zoned districts, particularly at churches,

and the three districts where boxes are permitted are on

the periphery of the city, unlikely to be seen by potential

donors.

“[N]arrow tailoring is satisfied so long as the . . .

regulation promotes a substantial government interest

that would be achieved less effectively absent the

regulation”. Ward v. Rock Against Racism, 491 U.S. 781,

799, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989) (second

alteration in original) (citation omitted). The Ordinance

“need not be the least restrictive or least intrusive means

of” promoting the governmental interest, but it may not

“burden substantially more speech than is necessary

to further the government’s legitimate interests”. Id.

at 798-99. “Government may not regulate expression in

such a manner that a substantial portion of the burden

on speech does not serve to advance its goals.” Id. at 799.

Most recently, the Supreme Court explained: “To meet

the requirement of narrow tailoring, the government

must demonstrate that alternative measures that burden

substantially less speech would fail to achieve the

government’s interests, not simply that the chosen route

is easier”. McCullen, 573 U.S. at 495.

16a

Appendix A

The Charities contend the zoning provision burdens

substantially more speech than necessary to achieve

Arlington’s significant interests. See Ward, 491 U.S.

at 798-800 (outlining narrow-tailoring rule). Arlington

counters that even well-maintained donation boxes are

unsightly. Meaning, to achieve its significant government

interest of safeguarding the community aesthetic, it must

regulate the boxes themselves.

Arlington’s contention invokes Taxpayers for Vincent

where, because “the substantive evil—visual blight—

[wa]s not merely a possible by-product of the activity,

but [wa]s created by the medium of expression itself”,

the at-issue ordinance (which banned posting signs on

public property) “curtail[ed] no more speech than [wa]s

necessary to accomplish its purpose”. 466 U.S. at 810. The

Court upheld the constitutionality of a total prohibition.

Id. at 817. In contrast, the zoning provision continues to

allow donation boxes in three zoning districts.

The partial dissent at 3 would require record evidence

showing “the existence of boxes anywhere, in any condition,

was the problem the city set out to address” before applying

Taxpayers for Vincent. As explained supra, Arlington’s

asserted interests in safeguarding the community

aesthetic and promoting the ordered appearance of

developed property are undisputed. Additionally, the

record does include evidence (as demonstrated, inter alia,

by the partial dissent’s at 1 quoting Arlington’s codecompliance services director) that the donation boxes

themselves constitute aesthetic harm. See also id. at 808

(“The plurality wrote in Metromedia: ‘It is not speculative

17a

Appendix A

to recognize that billboards by their very nature, wherever

located and however constructed, can be perceived as an

esthetic harm.’ The same is true of posted signs.” (citation

omitted)); Metromedia, 453 U.S. at 510 (explaining, in

discussing billboard ordinance, that “San Diego, like many

States and other municipalities, has chosen to minimize

the presence of such structures. Such esthetic judgments

are necessarily subjective, defying objective evaluation”

(footnote omitted)).

The Charities contend the Court narrowed the

applicability of Taxpayers for Vincent to mediums of

speech that are “not a uniquely valuable or important

mode of communication” and where there is “no evidence

that [speakers’] ability to communicate effectively is

threatened by ever-increasing restrictions on expression”.

City of Ladue v. Gilleo, 512 U.S. 43, 54, 114 S. Ct. 2038,

129 L. Ed. 2d 36 (1994) (citation omitted). They assert

donation boxes are a uniquely valuable and important

mode of communication.

In Gilleo, the ordinance prohibited “homeowners from

displaying any signs on their property except ‘residence

identification’ signs, ‘for sale’ signs, and signs warning

of safety hazards”. Id. at 45. Particularly relevant to the

Court’s decision was that, unlike here, the ordinance

foreclosed an entire medium of expression and left no

ample alternative channels of communication. Id. at 55-57

(“Residential signs are an unusually cheap and convenient

form of communication. Especially for persons of modest

means or limited mobility, a yard or window sign may have

no practical substitute.”). And, unlike Gilleo’s residential

18a

Appendix A

signs, donation boxes “have [not] long been an important

and distinct medium of expression”. Id. at 55.

Because one of the substantive evils Arlington seeks

to eliminate— “visual blight”—is created in part by

the donation boxes themselves, the zoning provision

“curtails no more speech than is necessary to accomplish

its purpose”. Taxpayers for Vincent, 466 U.S. at 810; see

also Frisby v. Schultz, 487 U.S. 474, 476, 485-88, 108 S.

Ct. 2495, 101 L. Ed. 2d 420 (1988) (upholding ordinance

banning picketing “before or about” any residence because

“[a] statute is narrowly tailored if it targets and eliminates

no more than the exact source of the ‘evil’ it seeks to

remedy”); H & A Land Corp. v. City of Kennedale, 480

F.3d 336, 338 (5th Cir. 2007) (quoting Frisby rule). The

provision is narrowly tailored. (The partial dissent at 2

contends Arlington’s interest in preventing the “clustering

and proliferation” of donation boxes is adequately

addressed by the Ordinance’s permitting-requirement

and provision limiting donations boxes to one per lot.

See Ordinance 18-044 § 3.03(D). But allowing only one

donation box per lot does little to address Arlington’s

proliferation concern.)

The provision also “leave[s] open ample alternative

channels of communication”. Moore, 868 F.3d at 404. As

discussed supra, the scope of the Ordinance is limited.

First, the Charities may continue to place donation boxes

in accordance with the Ordinance. Also, the Charities

are not prohibited under the Ordinance from using any

other method in every zoning district to solicit donations.

Along that line, the Charities solicit donations through

19a

Appendix A

other channels, including: at-home pickup services, church

pickup services, magazine flyers, and store-front drop-off

locations. Ample alternative channels of communication

exist under the Ordinance. See, e.g., Taxpayers for

Vincent, 466 U.S. at 812 (concluding ample alternative

channels existed when ordinance did not prohibit

individuals from speaking or distributing literature in

location where posting signs was prohibited).

Arlington must likewise show the setback requirement

is narrowly tailored to serve its significant government

interests and leaves ample alternative channels of

communication. See, e.g., Moore, 868 F.3d at 403-04. The

setback requirement provides: “No donation box shall be

permitted within the row of parking adjacent to street

right-of-way unless an existing landscape setback is

present in good condition. If there is no existing landscape

setback, a donation box shall not be placed less than 40

feet from the adjacent street right-of-way.” Ordinance

18-044 § 3.03(I).

In seeking to avoid summary judgment on the setback

issue, the Charities contend Arlington has not shown

there is no genuine dispute of material fact for whether

a 40-foot setback is more necessary than a smaller one.

See Ward, 491 U.S. at 799 (explaining narrowly tailored

provision may not “burden substantially more speech

than is necessary”). They also maintain the district court

erred in disregarding as “unsupported” the Charities’

deposition testimony about the public’s difficulty seeing

donation boxes behind the requisite setback.

20a

Appendix A

The analysis for the setback requirement is much

the same as for the zoning provision. Arlington notes the

setback requirement serves its significant government

interests of: traffic safety; aesthetic appearance; and the

safety and welfare of pedestrians, property owners, and

others. Arlington presented evidence showing donation

boxes were sometimes surrounded by glass and debris

that posed a danger to vehicles or pedestrians.

The narrow-tailoring standard is outlined supra. See,

e.g., Ward, 491 U.S. at 798-800. First, because Arlington

asserts even well-maintained boxes are unsightly, the

setback requirement, like the zoning provision, “curtails

no more speech than is necessary to accomplish its

purpose”. Taxpayers for Vincent, 466 U.S. at 810; see also

Frisby, 487 U.S. at 485-88; Metromedia, 453 U.S. at 510.

Second, we hold that requiring a 40-foot setback when

there is no existing landscape setback does not “burden

substantially more speech than is necessary”. Ward, 491

U.S. at 799. Finally, all of the alternative channels of

communication, discussed supra, remain available.

The Charities contend the deposition testimony of

their presidents established a genuine dispute of material

fact for whether the setback requirement is narrowly

tailored. The presidents explained that the requirement

made it nearly impossible to find a compliant location for

a bin. As noted, the district court concluded the testimony

was “unsupported” and did not create a genuine issue of

material fact. The Charities assert summary-judgment

evidence “must be taken as true” and “viewed in the light

most favorable to the party opposing the motion”. Waste

21a

Appendix A

Mgmt. of La., L.L.C. v. River Birch, Inc., 920 F.3d 958,

964 (5th Cir. 2019) (citations omitted).

NFBT’s president testified in her deposition, inter

alia, that the setback requirement “make[s] it very

difficult to find a location that’s visible . . . that would get

our message out there”. She stated her testimony was

“based on the ordinance itself or [her] understanding

of—of the requirements in the ordinance . . . . Just the

placement requirements”. Similarly, AOH’s president

testified in his deposition that “it’s extremely difficult, if

not impossible, to place a bin when you’re looking at 40

feet”. This testimony was based on information conveyed

to him by AOH’s professional fundraiser who had “found

that 40 feet is way too far”.

Because facial challenges are pure questions of

law, and in the light of the analysis supra, the setback

requirement is narrowly tailored, even assuming

arguendo that the deposition testimony is competent

summary-judgment evidence. See Taxpayers for Vincent,

466 U.S. at 810; Frisby, 487 U.S. at 485; Carmouche,

449 F.3d at 662. The presidents’ deposition testimony,

however, is not competent summary-judgment evidence.

Neither comports with Federal Rule of Civil Procedure 56

(requiring statements to “be made on personal knowledge,

set out facts that would be admissible in evidence, and

show that the affiant or declarant is competent to testify on

the matters stated”). Our court has concluded testimony

is insufficient to create a genuine dispute of material fact

when it is “conclusory, vague, or not based on personal

knowledge”. Guzman v. Allstate Assurance Co., 18 F.4th

22a

Appendix A

157, 161 (5th Cir. 2021). Neither president makes their

statement on personal knowledge and both statements

are conclusory.

The Charities last contend the Ordinance’s permittingprovisions constitute an unconstitutional prior restraint

because several of the key terms are vague and undefined,

and the provisions lack guidance on how to measure

setback distances. The allegedly vague terms include “in

good condition”, “right-of-way”, “residential dwelling use

district”, and “City Appeal Officer”. Ordinance 18-044

§§ 3.03(I), 3.06(J), 3.09(D), 3.10.

“[T]he [Supreme] Court has long held that ‘law[s]

subjecting the exercise of First Amendment freedoms to

the prior restraint of a license, without narrow, objective,

and definite standards to guide the licensing authority,

[are] unconstitutional’”. Freedom From Religion Found.

v. Abbott, 955 F.3d 417, 427 (5th Cir. 2020) (third and fourth

alterations in original) (quoting Shuttlesworth v. City of

Birmingham, 394 U.S. 147, 150-51, 89 S. Ct. 935, 22 L. Ed.

2d 162 (1969)). This is often referred to as the “unbridled

discretion doctrine”. Id. “A government regulation that

allows arbitrary application is inherently inconsistent

with a valid time, place, and manner regulation because

such discretion has the potential for becoming a means of

suppressing a particular point of view.” Forsyth County v.

Nationalist Movement, 505 U.S. 123, 130, 112 S. Ct. 2395,

120 L. Ed. 2d 101 (1992) (citation omitted). “[A] time, place,

and manner regulation [must] contain adequate standards

23a

Appendix A

to guide the official’s decision and render it subject to

effective judicial review”. Thomas v. Chi. Park Dist., 534

U.S. 316, 323, 122 S. Ct. 775, 151 L. Ed. 2d 783 (2002).

The Ordinance meets that test. Cf. Shuttlesworth,

394 U.S. at 149-51 (ruling ordinance was prior restraint

because commission could refuse parade permits when

“public welfare, peace, safety, health, decency, good order,

morals or convenience require that it be refused”); City of

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 76970, 772, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988) (ruling

ordinance was prior restraint because it authorized mayor

to refuse permit for newspaper stand for reasons “deemed

necessary and reasonable by the Mayor”); Forsyth

County, 505 U.S. at 126-27, 132-33 (ruling ordinance was

prior restraint because it allowed administrator to adjust

mandated fee for parades without “articulated standards”,

“objective factors”, or “explanation”). To obtain a permit

under the Ordinance, an applicant need only satisfy the

objective criteria provided in the Ordinance. Then, the

permit “shall be issued by the Administrator within

sixty (60) days of receipt of a completed application after

determining that all the requirements of this Section are

satisfied”. Ordinance 18-044 § 3.03(A) (emphasis added).

The Ordinance requires Arlington to notify the applicant

in writing of the reason for denial or revocation and it

provides an appeal process for such actions. Id. § 3.09.

Even if we assume vagueness in the words identified by

the Charities, the Ordinance’s standards “are reasonably

specific and objective, and do not leave the decision to

the whim of the administrator”. Thomas, 534 U.S. at 324

(emphasis added) (citation omitted).

24a

Appendix A

III.

For the foregoing reasons, that part of the judgment

concerning the zoning provision is VACATED and

judgment is RENDERED for Arlington on that part. In

all other respects, and in accordance with the foregoing,

the judgment is AFFIRMED.

James E. Graves, Jr., Circuit Judge, concurring in part

and dissenting in part:

I agree in large part with the majority’s careful opinion.

But I would affirm the district court’s conclusion that

the zoning provision fails to pass intermediate scrutiny.

That provision is not narrowly tailored, particularly in

light of other ordinance provisions that directly address

Arlington’s documented concerns. I respectfully dissent

from that portion of the opinion.

To justify the zoning provision, the city was required

to “demonstrate that alternative measures that burden

substantially less speech . . . fail to achieve [its] interests.”

McCullen v. Coakley, 573 U.S. 464, 495, 134 S. Ct. 2518,

189 L. Ed. 2d 502 (2014). The “alternative measures”

at issue are other provisions of Arlington’s ordinance

regulating donation boxes. The record shows that those

other provisions are narrowly tailored to achieve all of the

city’s interests. And they are substantially less speechrestrictive than the zoning provision.

The record illustrates the concerns that motivated

the ordinance. The ordinance itself declares that it

25a

Appendix A

is “intended to provide efficient legal remedies for

unpermitted or poorly maintained donation boxes.” The

city’s code compliance director testified about out-ofcontrol proliferation of boxes—especially the “prolific

number” in the city’s high-traffic Community Commercial

zones. He said, “[e]ven when donation boxes are wellmaintained, they can be unsightly, particularly in large

numbers.” (Emphasis added.)

There is also Arlington’s 2018 box study. The study

noted “[l]arge abandoned items and litter” around some

boxes, an occurrence more frequent when multiple boxes

were situated on one lot. The litter was worst when

“[boxes] were not on a single property with a single,

operating business”; when they were “placed in a back

parking lot or a parking area not connected to a specific

business”; and when they lacked contact information.

The study noted that “litter surrounding donation bins

was often not removed even when a bin is otherwise

maintained.” Still, some boxes had no problems, including

boxes collecting donations for Arms of Hope.

Those motivating concerns are specific—namely,

the construction, labeling, maintenance, placement,

clustering, and unchecked accumulation of boxes. The nonzoning provisions of the ordinance precisely targets them.

It addresses construction problems by requiring boxes to

be made of metal, limited to 120 cubic feet, and painted

a single, non-fluorescent color. It addresses labeling and

accountability by requiring contact information to be

displayed. It addresses maintenance through cleaning

requirements and by imposing joint and several liability

26a

Appendix A

on permit holders and property owners for failure

to meet those requirements. It addresses placement

through a setback requirement and by prohibiting boxes

in easements and driveways. And it addresses clustering

and proliferation through the permitting requirement and

by generally restricting boxes to no more than one per lot.

The city then layered the zoning provision over the top

of those targeted provisions. And the zoning provision’s

effect is much more drastic. It outright bans the boxes not

just from the Community Commercial zones that are the

focus of the city’s concerns, but also from the 577 city acres

that are zoned Office Commercial and from all residential

zones, where at least some churches are located. Those

are areas where, if the boxes were properly maintained,

their presence would seem to be both appropriate and

particularly useful to the Charities.

A “regulation will not be invalid simply because a

court concludes that the government’s interest could

be adequately served by some less-speech-restrictive

alternative.” Ward v. Rock Against Racism, 491 U.S.

781, 799, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989). But

the district court did not just invent “some less-speechrestrictive alternative” and speculate that it “could . . .

adequately serve[]” the city’s interests. Id. It examined

ordinance provisions that the city itself had adopted and

found them to be both narrowly tailored to the city’s

concerns and substantially less speech restrictive than

the zoning provision.

27a

Appendix A

The majority’s analysis of the zoning provision relies

on Members of City Council v. Taxpayers for Vincent,

466 U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984).

There, the Supreme Court concluded that the “visual

assault . . . presented by [the] accumulation of signs” on

public property was “a significant substantive evil within

the [c]ity’s power to prohibit.” Vincent, 466 U.S. at 807.

The city’s prohibition on such signs was a proper means

to address that “evil.” Id. at 808. In the majority’s view

here, the zoning provision is similarly justified because

the city’s concern about visual blight “is created in part

by the donation boxes themselves.” Ante at 15.

If the record showed that the existence of boxes

anywhere, in any condition, was the problem the city

set out to address, even a total ban might be allowed

under Vincent. But it does not. It shows that boxes

created specific problems; that the city created specific

provisions to address those specific problems; and that it

also created a zoning provision attacking the boxes much

more indiscriminately.

In Vincent, the Court differentiated between

narrowly tailored rules that “respond[] precisely” to a

city’s problems and broad rules that end up “gratuitously

infring[ing] upon” protected speech. Id. at 810. The zoning

provision is an example of the latter. Its substantial speech

limitations are not necessary to serve the city’s goals,

particularly in light of other ordinance provisions that

more properly “focus[] on the source of the evils the city

seeks to eliminate.” See Ward, 491 U.S. at 799 & n.7.

28a

Appendix A

I would affirm the district court’s conclusion that

the zoning provision violates the First Amendment.

Accordingly, I respectfully dissent from that part of the

majority’s opinion.

29a

APPENDIX B — Appendix

MEMORANDUM

OPINION

AND ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF TEXAS, DALLAS DIVISION,

FILED SEPTEMBER 9, 2022

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CIVIL ACTION NO. 3:21-CV-2028-B

NATIONAL FEDERATION OF THE BLIND OF

TEXAS INC., AND ARMS OF HOPE,

Plaintiffs,

CITY OF ARLINGTON, TEXAS,

Defendant.

JANE J. BOYLE, UNITED STATES

DISTRICT JUDGE.

September 9, 2022, Decided

September 9, 2022, Filed

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiffs National Federation of

the Blind of Texas Inc. (NFBTX) and Arms of Hope (AOH)

(collectively, Plaintiffs)’ Motion for Partial Summary

30a

Appendix B

Judgment (Doc. 50) and Defendant City of Arlington,

Texas (Arlington or the City)’s Motion for Summary

Judgment (Doc. 47). For the reasons given below, the

Court GRANTS IN PART and DENIES IN PART both

motions.

BACKGROUND

This is a First Amendment freedom of speech case

about unattended donation collection bins (donation

bins). Plaintiffs “are charitable, nonprofit organizations

operating in the State of Texas.” Doc. 35, Am. Compl., ¶ 11.

NFBTX is “[d]edicated to the complete integration of the

blind into society . . . [and] works toward the removal of

legal, economic, and societal barriers to full participation

by blind people in employment, education, recreation, and

all other aspects of community life.” Id. “AOH focuses

on providing a safe home and Christian environment for

children and single-mother families in need . . . [so they

can] avoid homelessness, poverty, abuse, and neglect.” Id.

Both Plaintiffs partner with third-party companies to

place donation bins bearing signage about Plaintiffs and

their missions at various Texas locations. Id. ¶¶ 23, 27.

The bins placed by Plaintiffs through their third-party

partners “receive and collect unwanted, used clothing and

household items from donors for reuse while spreading

the charitable organization’s mission.” Id. ¶ 23. Plaintiffs,

through the third-party partners, also collect donated

goods by scheduled truck pick ups at donors’ residences.

31a

Appendix B

Doc. 49, Def.’s App., 314, 427.1 The third-party partners

pay Plaintiffs per-pound for the donated items and

then resell the items to thrift shops. Id. at 326-27, 346,

353, 425. The donation bins are a source of revenue for

Plaintiffs, who emphasize that the bins also perform two

communicative functions: “First, they deliver a message

that builds awareness about the organization’s cause and,

second, they communicate an appeal for support of that

cause.” Doc. 35, Am. Compl., ¶ 14.

While such donation bins benefit Plaintiffs, they have

burdened Arlington. The bins—which are generally

“unattended, stand-alone boxes, approximately six feet

tall, five feet wide and four feet deep” and “typically placed

in parking lots”—were “[u]ntil recently . . . unregulated

in Arlington, and [their] number . . . had begun to

proliferate.” Doc. 48, Def.’s Br., 3-4 (citing Doc. 49, Def.’s

App., 301). “By 2015, there were at least 90 unattended

donation boxes2 dispersed throughout Arlington—many in

the city center.” Doc. 49, Def.’s App., 301. The City’s “code

enforcement officers were constantly fielding complaints

from business owners, property owners, and residents

1. The appendices submitted by both parties include some

documents with multiple page numbers. For clarity’s sake, the Court

cites to the “APP.” page numbers for Defendant’s Appendix (Doc. 49)

and to the “APP” page numbers for Plaintiffs’ Appendix (Doc. 58),

but omits the APP. or APP prefixes to those page numbers.

2. Arlington’s ordinance that is the subject of this dispute and

Arlington’s briefing refer to these receptacles as “donation boxes”

while Plaintiffs term them “donation bins.” In this Order, the Court

will generally use the term “donation bins” but considers the terms

interchangeable.

32a

Appendix B

concerning littered, unmaintained, and hazardous

donation boxes on their street corners, parking lots, and

properties.” Id. Common issues with the bins included

overflow of items, illegal dumping, broken glass and

litter near the bins, and scavenging. Id. Arlington found

it difficult to track down donation bin owners and enforce

bin-related code violations with a limited code-compliance

staff. Id. at 302.

Arlington adopted an ordinance regulating donation

bins to address these issues. After engaging with

stakeholders and the public, id. at 110-11, 120-51, and

completing “a three-month study of donation boxes and

their adverse secondary effects in the City” (the Visual

Survey), Doc. 48, Def.’s Br., 8; Doc. 49, Def.’s App., at

5-109, as well as a two-month supplemental survey (the

Supplemental Survey), Doc. 49, Def.’s App., 217-99,

Arlington enacted Ordinance 18-044, codified as the

‘Donation Boxes Chapter’ of the Code of the City of

Arlington, Texas (the Ordinance). Doc. 49, Def.’s App.,

142-51.

The Ordinance makes it “unlawful for any person to

place or maintain, or allow to be placed or maintained, a

donation box at any location within the City of Arlington,

without a valid permit issued in accordance with this

Article.” Arlington, Tex., Ordinance 18-044, § 3.01(A)

(Aug. 21, 2018). “‘Person’ includes an individual, sole

proprietorship, corporation, association, nonprofit

corporation, partnership, joint venture, a limited liability

company, estate, trust, public or private organization, or

any other legal entity.” Id. § 2.01. “‘Donation Box’ means

33a

Appendix B

any drop-off box, container, trailer or other receptacle

that is intended for use as a collection point for accepting

donated textiles, clothing, shoes, books, toys, dishes,

household items, or other salvageable items of personal

property.” Id.

Section 3.01(C) (the Zoning Restrictions)

restricts donation box placement to:

[T]he following zoning use districts in the

Un i f ied Development Code: Indust r ia l

Manufacturing (IM), Light Industrial (LI),

and General Commercial (GC). Donation

boxes may also be permitted on real property

zoned Planned Development with the abovereferenced underlying zoning use districts.

Donation boxes shall not be permitted to be

placed on real property located within any other

zoning use districts.

Id. § 3.01(C).

Section 3.03 sets out eleven requirements to obtain a

permit. Id. § 3.03. One of the eleven, Section 3.03(I) (the

Setback Requirement) provides that: “No donation box

shall be permitted within the row of parking adjacent to

street right-of-way unless an existing landscape setback is

present in good condition. If there is no existing landscape

setback, a donation box shall not be placed less than 40

feet from the adjacent street right-of-way.” Id. § 3.03(I).

34a

Appendix B

Sections 3.04 and 3.09 describe the permit application

and appeals process (the Permitting Requirements).

Id. §§ 3.04, 3.09. Applicants must “file a written, sworn

application with the Administrator,” with “[a] separate

permit and application . . . required for each donation box

regardless of the ownership thereof,” and pay an “annual

permit fee.” Id. § 3.04 (A)-(C). “Any person denied a permit

shall have the right to appeal such action in accordance

with the provisions of Section 3.09.” Id. § 3.04(D). Section

3.09 provides an administrative appeals process to

be conducted by the Administrator, whose decision is

appealable to the City Appeal Officer. Id. § 3.09. The

process for the City Appeal Officer’s review and decision is

set forth in Section 3.10. Id. § 3.10. If a permit is granted,

the donation bin must be maintained pursuant to the

requirements of Section 3.06, which include servicing the

bin, keeping it free of debris, removing any donation left

outside the bin, and maintaining its structural and visual

integrity. Id. § 3.06. The bin must also display its owner’s

contact information and a disclosure warning donors that

donated items must fit inside. Id. § 3.03(J)-(K). Among

other restrictions, a bin may not be placed where it will

impede traffic or impair driver sightlines; block access to

easements, fire hydrants, or required parking spaces; or

sit within 200 feet of any residential dwelling use district

or in a drainage easement or floodplain. Id. § 3.06.

Repeat violations of these requirements may result

in permit revocation and impoundment of the offending

donation bin. Id. § 3.07(A), (D). If a permit holder’s permit

is revoked, they cannot be issued another permit until

after a one-year waiting period. Id. § 3.07(E). A violation

35a

Appendix B

of the Ordinance is a misdemeanor offense punishable

by fine, and the Ordinance is cumulative with other city

laws. Id. at 9. If any part of the Ordinance is found to be

unconstitutional, that part is severable. See id.

After the Ordinance’s enactment, NFBTX filed suit

on August 26, 2021, alleging that the Ordinance violates

its First Amendment right to engage in charitable speech.

Doc. 1, Compl. In January 2022, the Court permitted

AOH’s joinder and Plaintiffs filed the operative Amended

Complaint. Nat’l Fed’n of the Blind of Tex. Inc. v. City of

Arlington, 2022 U.S. Dist. LEXIS 4164, 2022 WL 93941,

at *4 (N.D. Tex. Jan. 10, 2022); Doc. 35, Am. Compl.

Plaintiffs challenge the Ordinance as facially

unconstitutional for four reasons: (1) as a zoning ban; (2)

for imposing an unduly burdensome setback restriction;

(3) as overbroad; and (4) as a prior restraint on speech.

Doc. 35, Am. Compl., ¶¶ 76-112. They seek declaratory and

injunctive relief under 42 U.S.C. § 1983, asking the Court

to declare the Ordinance unconstitutional on these bases

and to enjoin Arlington from enforcing the Ordinance. Id.

at 1, 22. NFBTX also challenges the setback restriction

as applied to NFBTX’s permit applications. Id. ¶ 102.

After conclusion of an expedited discovery period,

Plaintiffs moved for partial summary judgment “on the

facial claims raised in Counts I, III, and IV of their First

Amended Complaint.” Doc. 50, Pls.’ Mot., 1. Arlington

moved for summary judgment on all four of Plaintiffs’

claims. Doc. 47, Def.’s Mot., 1. The motions are fully briefed

and ripe for review. The Court addresses them below.

36a

Appendix B

II.

LEGAL STANDARD

Summary judgment is proper “if the movant shows

that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “[T]he substantive law . . .

identif[ies] which facts are material,” and only a “dispute[]

over facts that might affect the outcome of the suit under

the governing law will properly preclude the entry of

summary judgment.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The

Court must view the facts and the inferences drawn from

the facts “in the light most favorable to the party opposing

the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538

(1986) (citation omitted).

Once the summary-judgment movant has met its

burden, “the non[-]movant must go beyond the pleadings

and designate specific facts showing that there is a

genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994)(per curiam)(citation omitted).

A non-movant may not simply rely on the Court to “sift

through the record” to find a fact issue, but must point

to specific evidence in the record and articulate precisely

how that evidence supports the challenged claim. Ragas

v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.

1998). Moreover, the evidence the non-movant provides

must raise “more than . . . some metaphysical doubt as

to the material facts.” Matsushita, 475 U.S. at 586. The

37a

Appendix B

evidence must be such that a jury could reasonably find in

the non-movant’s favor. Anderson, 477 U.S. at 248. If the

non-movant is unable to make such a showing, the court

must grant summary judgment. Little, 37 F.3d at 1075.

III.

ANALYSIS

Plaintiffs move for summary judgment on three of

their four declaratory judgment claims, asking the Court

to find that the Ordinance is: (1) an unconstitutional

content-based zoning ban on a protected form of

speech, (2) an unconstitutional prior restraint, and (3)

unconstitutionally overbroad. 3 Doc. 50, Pls.’ Mot., 1-2;

Doc. 35, Am. Compl, ¶¶ 77-91, 104-112. Arlington moves

for summary judgment dismissing all four of Plaintiffs’

claims with prejudice. Doc. 47, Def.’s Mot., 1.

“In analyzing a First A mendment claim, the

Court first determines whether the targeted speech is

protected, and, if so, what level of scrutiny applies; and

second, determines whether the Ordinance survives the

appropriate level of scrutiny.” Ass’n of Club Execs. of

Dallas, Inc. v. City of Dallas, 2022 U.S. Dist. LEXIS

92740, 2022 WL 1642470, at *3 (N.D. Tex. May 24, 2022)

(citing Sorrell v. IMS Health Inc., 564 U.S. 552, 557, 131

S. Ct. 2653, 180 L. Ed. 2d 544 (2011)). Plaintiffs argue

3. NFBTX, individually, also asserts an as-applied challenge

to the Setback Requirement. Doc. 35, Am. Compl., ¶¶ 77-112. The

parties have not argued and the Court has not considered NFBTX’s

as-applied claim in deciding these motions.

38a

Appendix B

that the Ordinance is subject to strict scrutiny “for two

separate and independent reasons.” Doc. 51, Pls.’s Br., 3

(citing Baker v. City of Fort Worth, 506 F. Supp. 3d 413, 420

(N.D. Tex. 2020)). First, they allege it is a content-based

regulation. Id. Second, they allege it is a prior restraint on

protected speech. Id. Arlington argues that the Ordinance

is subject to intermediate scrutiny because it is content

neutral. Doc. 48, Def.’s Br., 18.

Below, the Court first addresses the threshold issue

of Plaintiffs’ standing. Then, it considers whether the

Ordinance is content based or content neutral and, finding

that it is content neutral, applies intermediate scrutiny to

the Zoning Restrictions and Setback Requirement. Finally,

it addresses whether the Permitting Requirements are

an unconstitutional prior restraint on speech.

A. Standing

“[T]he requirement that a claimant have ‘standing

is an essential and unchanging part of the case-orcontroversy requirement of Article III.’” Nat’l Fed’n of

the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir.

2011) (alteration in original) (quoting Davis v. FEC, 554

U.S. 724, 733, 128 S. Ct. 2759, 171 L. Ed. 2d 737 (2008)).

Standing requires that “a claimant . . . present an injury

that is concrete, particularized, and actual or imminent;

fairly traceable to the defendant’s challenged behavior;

and likely to be redressed by a favorable ruling.” Id. at

208-09. “To prove an injury in fact sufficient ‘to raise a

First Amendment facial challenge, . . . a plaintiff must

produce evidence of an intention to engage in a course of

conduct arguably affected with a constitutional interest,

39a

Appendix B

but proscribed by statute.’” Id. (quoting Miss. State

Democratic Party v. Barbour, 529 F.3d 538, 545 (5th

Cir. 2008)). “Specifically, plaintiffs must demonstrate a

‘serious [ ] interest [ ]’ in acting contrary to a statute.”

Id. (alterations in original) (quoting Barbour, 529 F.3d

at 545 n.8)). Plaintiffs “bear the burden to demonstrate

standing for each claim they seek to press.” Id. (citing

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126

S. Ct. 1854, 164 L. Ed. 2d 589 (2006)).

Arlington claims that “Plaintiffs have shown no real

intent to act contrary to any provision of the Ordinance”

other than the Zoning Restrictions, Setback Requirement,

and Permitting Requirements, and therefore have

standing to challenge only those provisions. Doc. 48, Def.’s

Mot., 27-29; Doc. 54, Def.’s Resp., 21 (citing Barbour, 529

F.3d at 545). Arlington additionally argues that AOH has

standing for only the Zoning Restrictions challenge. Doc.

48, Def.’s Mot., 28.

Plaintiffs respond that they “do not challenge any

other provisions [beyond the Zoning Restrictions,

Setback Requirement, and Permitting Requirements] as

overbroad.” Doc. 56, Pls.’ Resp., 36. They claim Arlington,

by its assertion that Plaintiff’s standing should be limited

to these three provisions, admits Plaintiffs do have

standing to challenge the three. Id.

To begin, the Court emphasizes that even if Arlington

did agree that both Plaintiffs have standing to assert these

three grounds for facial unconstitutionality, standing is

conferred by the Constitution, not by agreement. Abbott,

647 F.3d at 208.

40a

Appendix B

However, both Plaintiffs have demonstrated serious

interest in acting contrary to the Ordinance’s Zoning

Restrictions, Setback Requirement, and Permitting

Requirements and therefore have standing to challenge

these three provisions. AOH submitted a declaration

stating that it has current contracts to place donation bins

in other Texas cities and, but for the Ordinance, it (or its

for-profit partner on its behalf) would place donation bins

in Arlington. Doc. 52, Robertson Decl., 29-30. NFBTX

submitted a declaration that the placement restrictions

and permitting process have prevented its placement of

bins in Arlington. Doc. 52, Crosby Decl., 25-26. While these

declarations of intention alone might not “demonstrate

that their ‘alleged injury is actual or imminent rather than

conjectural or hypothetical,’” Plaintiffs have shown more.

See Abbott, 647 F.3d at 209 (quoting Barbour, 529 F.3d at

545) (finding that plaintiffs’ declarations that “they are

seriously interested in engaging in a course of conduct

affected by” challenged provision was not sufficient to

support standing).

NFBTX showed that it applied for permits under the

Ordinance, was denied in part on the bases of placement

and zoning, and participated in what it claims was a

deficient appeals process. See Doc. 57, Pls.’ App., Ex.

I, 79-95; Doc. 58, Pls’ App., Ex. I, 96-101; Doc. 58, Pls.’

App., Exs. K-Q, 107-29. Therefore, NFB has standing

to maintain a facial challenge the Zoning Restrictions,

Setback Requirement, and Permitting Requirements.

AOH showed that it placed donation bins in Arlington

in the years immediately preceding the Ordinance’s

41a

Appendix B

adoption, which is relevant evidence of its intent to do

so again. Doc. 58, Pls.’ App., Ex. U, 142-43; Doc. 59, Pls.’

App., Exs. V-W, 144-204; Doc. 60, Pls.’ App., Ex. W, 20549. AOH also showed that it applied for a permit under

the Ordinance and was denied in part on the basis of the

Zoning Restrictions. Doc. 60, Ex. W, 254-58; Doc. 61,

Ex. X, 260, 265. Though the evidence does not show that

AOH’s application under the Ordinance was denied on the

basis of Setback Requirement, AOH was subject to that

provision. So, it is neither hypothetical nor speculative

that AOH might imminently be harmed by the Setback

Requirement. See Abbott, 647 F.3d at 209. 4 Further,

AOH was actually denied a permit under the licensing

scheme established by the Ordinance’s Permitting

Requirements. Doc. 60, Ex. W, 254-58; Doc. 61, Ex. X,

260, 265. Therefore, AOH has standing to maintain a facial

challenge the Zoning Restrictions, Setback Requirement,

and Permitting Requirements.

For these reasons, both Plaintiffs have standing to

maintain a facial challenge to the Zoning Restrictions,

Setback Requirement, and Permitting Requirements. To

the extent that Plaintiffs challenge any other provisions as

overbroad, the Court finds that those claims are waived.

See Doc. 56, Pls.’ Resp., 36.

4. In Abbott, the Fifth Circuit found that the plaintiff charities

lacked standing to challenge a particular fee-disclosure provision

within a Texas statute, when they were not subject to that provision

because they did not have the type of fee arrangement regulated by

that provision with any for-profit partner, and did not present evidence

of intent to imminently enter such contracts. 647 F.3d at 209. By

contrast, AOH was subject to the Ordinance’s Setback Requirement

though its permit application was not denied on that basis.

42a

Appendix B

B. Whether the Ordinance Is Content Based or Content

Neutral

As both parties acknowledge, charitable solicitations

are fully protected speech and at least some of the

bins regulated by the Ordinance are a vehicle for such

solicitations. See, e.g., Doc. 51, Pls.’ Br., 6-7; Doc. 48, Def.’s

Br., 15-19. Therefore, the Court must first determine

whether the Ordinance is a content-based or contentneutral regulation. Reagan Nat’l Adver. of Austin v. City

of Austin, 972 F.3d 696, 702 (5th Cir. 2020), rev’d on other

grounds, 142 S. Ct. 1464, 212 L. Ed. 2d 418 (2022). If the

Ordinance is content-based, “then it is ‘presumptively

unconstitutional’ and subject to strict scrutiny.” Id.

(quoting Reed v. Town of Gilbert, 576 U.S. 155, 163, 135

S. Ct. 2218, 192 L. Ed. 2d 236 (2015)). “If the [Ordinance]

is content neutral, then it is subject to intermediate

scrutiny.” Id.

The Court begins by finding that the Ordinance

is facially content neutral. Then, the Court examines

whether the evidence shows that the Ordinance was

adopted for any content-based intent or purpose and finds

that it was not.

The Ordinance Is Facially Content Neutral

Facially, “restrictions on solicitation are not content

based and do not inherently present ‘the potential for

becoming a means of suppressing a particular point of

view,’ so long as they do not discriminate based on topic,

subject matter, or viewpoint.” City of Austin v. Reagan

43a

Appendix B

Nat’l Adver. of Austin, LLC, 142 S. Ct. 1464, 1473, 212

L. Ed. 2d 418 (2022) (quoting Heffron v. Int’l Soc’y for

Krishna Consciousness, Inc., 452 U.S. 640, 649, 101 S.

Ct. 2559, 69 L. Ed. 2d 298 (1981)). Instead, “absent a

content-based purpose or justification,” an ordinance

that facially “examine[s] . . . speech only in the service of

drawing neutral, location-based lines” and “is agnostic as

to content” is content neutral and does not warrant the

application of strict scrutiny. Id. at 1471.

Plaintiffs argue that the Ordinance is facially content

based because it “explicitly targets, regulates, and limits

the content and type of the speech at issue: the solicitation

of donations” and therefore “targets speech based on its

communicative content, i.e., what it says.” Doc. 51, Pls.’

Br., 17. “If the bin does not solicit donations of unwanted

clothing or household items, the Ordinance does not apply.”

Id. Plaintiffs also argue that the Ordinance “defines

‘donation boxes’ by their function and purpose: ‘any dropoff box . . . or other receptacle that is intended for use as

a collection point for accepting donated . . . salvageable

items of personal property’,” which under Reed requires

strict scrutiny. 5 Id. at 19.

Arlington responds that “the Ordinance regulates

the placement and maintenance of donation boxes of

any kind—for-profit, charitable or otherwise,” so it is

facially content neutral. Doc. 54, Def.’s Resp., 4. “Donation

5. After the parties submitted their initial briefing, the

Supreme Court issued the Reagan decision and the parties submitted

supplemental briefing in light of that new controlling authority. Doc.

72, Def.’s Suppl. Br.; Doc. 73, Pls.’ Suppl. Br.

44a

Appendix B

boxes are broadly and neutrally defined to include all

types of receptacles to be used to collect salvageable,

personal property, i.e. not trash receptacles.” Id. “[T]he

Ordinance . . . contains no discriminatory classifications,

as the receptacles can belong to charities, non-profits,

for-profits, and anything in between,” it claims. Doc. 72,

Def.’s Suppl. Br., 2.

Resolving whether the Ordinance is facially content

based or content neutral first requires the Court to

precisely define the regulated activity or interest and

whether it concerns speech, expressive conduct, or both.

Texas v. Johnson, 491 U.S. 397, 406, 109 S. Ct. 2533,

105 L. Ed. 2d 342 (1989); see Recycle for Change v. City

of Oakland, 856 F.3d 666, 672 n.4 (9th Cir. 2017), cert.

denied, 138 S. Ct. 557, 199 L. Ed. 2d 437 (2017). Plaintiffs

too broadly characterize the regulated activity as “the

solicitation of donations” because the specific physical

attributes of unattended donation bins are the regulation’s

subject. Arlington, Tex., Ordinance 18-044, § 1.02 (Aug.

21, 2018)). Arlington’s definition of the regulated activity

as “the placement and maintenance of donation boxes”

comes closer but does not address the bins’ communicative

function as “silent solicitors.” Doc. 54, Def.’s Resp., 4;

Abbott, 647 F.3d at 212.

A precise definition of the regulated activity at issue in

this case encompasses both its physical and communicative

aspects, and this Court finds persuasive the one used by

the Ninth Circuit in evaluating a similar ordinance: the

Ordinance regulates “collecting, distributing, reusing,

or recycling personal items—or the solicitation of items

45a

Appendix B

to further such activity.” Recycle for Change, 856 F.3d at

671. Thus defined, donation bin ordinances regulate both

pure speech (solicitation) and potentially communicative

conduct (donation, collection, recycling, and resale) related

to that solicitation, each of which might have a charitable

or non-charitable purpose or function. So, regulations of

donation bins are not inherently content-based but subject

to the analysis given other physical forms of solicitation.

Applying the Supreme Court’s most recent guidance

on this subject, Reagan, the Court finds that Arlington’s

Ordinance is facially content neutral because it does not

discriminate based on the solicitation’s topic, subject

matter, or viewpoint, but treats bin-based signage

soliciting donations to be deposited in that location

differently from communications soliciting donations for

deposit elsewhere or pickup. See 142 S. Ct. at 1473-74. It is

a regulation of the place and manner of the solicitation and

associated donative conduct, and subject to intermediate

scrutiny. Cf. id. at 1475 (recognizing a history and tradition

of regulations making “on-/off-premises” distinctions

in order “to address the distinct safety and esthetic

challenges posed by billboards and other methods of

outdoor advertising”) (emphasis added).

The Ordinance is therefore unlike the facially contentbased restrictions at issue in two of the cases cited by

Plaintiffs: Abbott, 647 F.3d 202; and Baker, 506 F. Supp.

3d 413. Doc. 51, Pls.’ Br., 14, 18-23. And it is also plainly

distinguishable from the donation bin ordinance at issue in

Planet Aid, on which Plaintiffs also rely. Planet Aid v. City

of St. Johns, 782 F.3d 318 (2015); Doc. 51, Pls.’ Br., 18, 23.

46a

Appendix B

Abbott involved challenges to a Texas statute requiring

for-profit operators of donation bins to disclose whether

the donated items would be sold for profit and the nature

of their fee arrangements with benefitting charities.

647 F.3d at 206. “[R]eject[ing] Texas’s characterization

of the speech related to the public receptacles as mere

commercial speech,” and “determin[ing] that the public

receptacle disclosures at issue are charitable solicitations”

entitled to full First Amendment protection, the Fifth

Circuit applied strict scrutiny and struck down the feearrangement disclosure provisions. Id. at 213. Critically,

the statute at issue in Abbott was content-based because

it applied only to certain types of donation-bin-based

solicitations—those placed on bins operated by for-profit

companies—and required specific disclosures based

on the charitable or for-profit status of the speaker. Id.

Further, the Abbott court was analyzing a statute that

directly regulated “the speech related to the [donation

receptacles]” by mandating certain disclosures, not the

bins’ physical attributes, placement, and location as are at

issue in this case. Id.; see supra Section III(A) (limiting

Plaintiffs’ facial challenge to the Zoning Restrictions,

Setback Requirement, and Permitting Requirements).

Likewise, Baker’s ordinance was facially content based

because it carved out an exception for political signs from

an otherwise-neutral location-based sign ordinance. See

Baker, 506 F. Supp. at 417, 420 (discussing the ordinance’s

“political-or-not” distinction). The Arlington Ordinance

is not like the one in Baker because it does not exempt

certain donation bins from the location restrictions based

on the type of message displayed by the bin. See id.; cf.

47a

Appendix B

Watkins v. City of Arlington, 123 F. Supp. 3d 856, 864-67,

870 (N.D. Tex. 2015) (finding a generally applicable ban

on panhandling in the roadway at intersections facially

content neutral).

Instead, the Ordinance is almost identical to the

donation bin ordinance found to be facially content

neutral in Recycle for Change. See 856 F.3d at 668-69.

Like Arlington’s Ordinance, the Oakland donation bin

ordinance at issue in that case “applie[d] to any unattended

structure that accepts” donations of salvageable personal

property, “whether it be for charitable purposes or forprofit endeavors.”6 Id. at 670; Arlington, Tex., Ordinance

6. Plaintiffs seek to differentiate the Oakland ordinance from

the Arlington Ordinance by focusing on the Arlington Ordinance’s

“donation boxes” language, which it claims is inherently tied to

charitable donations, as compared to the Oakland Ordinance’s more

neutral “Unattended Donation Collection Box (UDCB)” language.

Doc. 56, Pls.’ Mot., 20. Defendants respond that the two ordinances’

definitions of the regulated bins show that their scope and substance,

if not their terminology, is “substantively identical.” Doc. 64, Def.’s

Resp., 12. The Court agrees with Arlington that the ordinances’

definitions of the regulated bins and behavior are not meaningfully

different. Compare Recycle for Change, 856 F.3d at 668-69 (noting

that the Oakland Ordinance defined UDCBs as “unstaffed drop-off

boxes, containers, receptacles, or similar facility that accept textiles,

shoes, books and/or other salvageable personal property items to

be used by the operator for distribution, resale, or recycling”) with

Arlington, Tex., Ordinance 18-044, § 2.01 (Aug. 21, 2018) (“‘Donation

Box’ means any drop-off box, container, trailer or other receptacle

that is intended for use as a collection point for accepting donated

textiles, clothing, shoes, books, toys, dishes, household items, or

other salvageable items of personal property.”).

48a

Appendix B

18-044, § 2.01 (Aug. 21, 2018) (defining “person” and

“donation box” without regard to charitable purpose or

lack thereof).

Finally, the Court finds the instant case distinguishable

from Planet Aid. In that case, the Sixth Circuit found a

city’s total ban on donation bins facially content-based

because it “ban[ned] altogether an entire subclass of

physical, outdoor objects[;] . . . those with a message about

charitable solicitation and giving.” 782 F.3d at 329. This

Court reaches a different conclusion for two reasons.

First, the cases are factually disting uishable

because Arlington’s Ordinance—unlike the ordinance

in Planet Aid—is not a total citywide ban on donation

bins.7 Plaintiffs acknowledge that the Ordinance allows

bins in three “of Arlington’s 28 zones,” though not in

the “downtown, community commercial, and mixed-use

areas with retail, shopping, dining, and churches” where

Plaintiffs wish to place them. Doc. 51, Pls.’ Mot., 36; Doc.

56, Pls.’ Resp., 6.

Second, to the extent that Plaintiffs argue that Planet

Aid establishes that an ordinance is facially content based

when it singles out one “subclass of physical, outdoor

objects” (donation bins) for different regulation than

“other outdoor receptacles” or “outdoor structures,” the

Court disagrees. See Doc. 51, Mot., 23 (discussing Planet

7. “Courts disfavor wholesale bans on types of expression

protected by the First Amendment, and such bans are usually

invalidated on the ground that they clearly fail a ‘least restrictive

means’ [strict scrutiny] analysis.” Denton v. City of El Paso, 861 F.

App’x 836, 840 (5th Cir. 2021) (collecting cases).

49a

Appendix B

Aid, 782 F.3d at 329). Clearly, different subclasses of

outdoor structures performing different functions may

require differentiated regulation. A shed is not a bin or

a billboard. Recognizing this reality, Reagan permits

reasonable regulation of the physical characteristics

(time, place, and manner) of fully protected solicitations

so long as the regulations do not discriminate based on

the solicitation’s topic, subject matter, or viewpoint. See

142 S. Ct. at 1473-74. As explained above, this Court

finds that the Ordinance does not discriminate against

solicitations of charitable donations of goods—which would

be a content-based distinction—but regulates speech

soliciting donated goods (charitable or not) for physical

collection in a certain place and manner.

For all these reasons, the Ordinance is facially content

neutral.

The Ordinance Does Not Have a Content-Based

Purpose or Justification

A facially content-neutral regulation may also be

found to be content based and subject to strict scrutiny if

it has a content-based purpose or justification. 8 Reagan,

142 S. Ct. at 1474.

8. This is the reverse of the secondary-effects cases discussed

and abrogated in the Fifth Circuit’s Reagan opinion, 972 F.3d

at 703(discussing cases in which the Fifth Circuit “held that ‘[a]

statute that appears content-based on its face may still be deemed

content-neutral if it is justified without regard to the content of the

speech’” (citing Asgeirsson v. Abbott, 696 F.3d 454, 459-60 (5th Cir.

2012)); see also Ass’n of Club Execs. of Dall., Inc., 2022 U.S. Dist.

LEXIS 92740, 2022 WL 1642470, at *5 (discussing the current state

of secondary-effects caselaw in this circuit).

50a

Appendix B

Arlington argues that there is “no evidence that

Arlington adopted the Ordinance because it disagreed

with the messaging of NFB[TX], AOH, or any other

charity that may seek to place a donation box in Arlington”

and that its purpose is addressing blight and public

safety. Doc. 48, Def.’s Br., 17 (citing Reed, 576 U.S. at

164). Arlington points to summary-judgment evidence

including an “extensive study of the issues that accompany

donation boxes and their root causes, . . . [and a] thorough

deliberative process in considering and crafting the

Ordinance” to show that the purpose and justification of

the Ordinance concerns secondary effects, not content.

Id.; see Doc. 49, Def.’s App., 5-119, 217-99.

Pl a i nt i f fs r e sp ond t h at “A rl i ng t on g r o s sly

mischaracterizes and exaggerates the [bins’] negative

effects” by “showcasing photographs of the wors[t]

examples of illegal dumping, generalizing those

occurrences to all donation bins and all charities, and

passing them off as everyday occurrences . . . . [when this]

is not an accurate picture of donation bins in Arlington.”

Doc. 56, Pls.’ Resp., 8-9. Arlington’s Visual Survey study

is “woefully deficient for purposes of establishing narrow

tailoring under any level of First Amendment scrutiny,”

they allege.9 Id. at 9.

9. Plaintiffs also argue that “the lesser scrutiny afforded

regulations targeting . . . secondary effects . . . ha[ve] no application

to content-based regulations,” so the Ordinance’s justification is

irrelevant. Id. at 15 (first citing City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986); then citing

Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 96 S. Ct. 2440, 49 L.

Ed. 2d 310 (1976); and then citing United States v. Playboy Ent. Grp.

51a

Appendix B

The Court finds that the Ordinance does not have a

content-based purpose or justification but is concerned

with controlling donation bins’ negative secondary effects.

Though Plaintiffs challenge the sufficiency of Arlington’s

Visual Survey to show narrow tailoring and claim that

Arlington overstates the severity of the bins’ secondary

effects, they do not assert that the Ordinance’s stated

purpose and justification are pretextual. See Doc. 56,

Pls.’ Resp., 15. More to the point on summary judgment,

they do not present or point to evidence of such. See

Ragas, 136 F.3d at 458. Instead, the summary-judgment

evidence shows that the Ordinance’s purposes are civil

beautification, controlling blight, and preventing safety

issues incident to dumping at donation bins. See Doc. 49,

Def.’s App., 5-109; 142-43; 217-99, 302.

So, the Ordinance is both facially and in fact content

neutral. Therefore, intermediate scrutiny applies. See

Reagan, 142 S. Ct. at 1474.

C. Intermediate Scrutiny Analysis

“[C]ontent-neutral regulations of ‘time, place, and

manner of expression’ . . . are permitted when they are

‘narrowly tailored to serve a significant government

Inc., 529 U.S. 803, 815, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000)).

Since the Court finds the Ordinance facially content-neutral, the

government’s justification and aim in enacting the Ordinance remain

relevant. See Reagan, 142 S. Ct. at 1474; Reed, 576 U.S. at 167; see

also Doc. 56, Pls.’ Resp., 15-16 (noting that “Ward [v. Rock Against

Racism, 491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989)] only

applies if a law is content-neutral on its face”).

52a

Appendix B

interest, and leave open ample alternative channels of

communication.’”10 Serv. Emps. Int’l Union, Loc. 5 v. City

of Houston, 595 F.3d 588, 596 (5th Cir. 2010) (citing Perry

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

45, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983)).

The Court first considers whether the summaryjudgment evidence shows that the Ordinance serves

a significant government interest, then whether it is

narrowly tailored. The Court finds that the Ordinance

does advance significant government interests, the Zoning

Restrictions are not narrowly tailored, and the Setback

Requirement is narrowly tailored.

Substantial Government Interest

Arlington argues that well-settled law establishes that

“[a] municipality may regulate expressive conduct in a

10. Though the Ordinance regulates placement of donation bins

on private property, both parties cite caselaw that either considers

speech restrictions in public fora or does not draw a distinction. Eg.,

Doc. 48, Def.’s Mot., 15 (citing Reed, 576 U.S. at 163) (addressing an

ordinance that “prohibit[ed] the display of outdoor signs anywhere

within the Town without a permit,” without distinguishing between

public and private property). Plaintiffs argue that “[t]he Supreme

Court has ruled that the government is similarly restricted by

the First Amendment in its ability to regulate speech on private

property” as on public, so the public/private property distinction does

not matter. Doc. 56, Pls.’ Resp., 29 n.15 (citing Watchtower Bible &

Tract Soc’y of N.Y. v. Vill. of Stratton, 536 U.S. 150, 165-66, 122 S. Ct.

2080, 153 L. Ed. 2d 205 (2002)). The Court agrees that the private/

public property distinction does not affect the analysis in this case.

Cf. Reagan, 142 S. Ct. at 1475-76 (directing the lower court to apply

the public fora intermediate scrutiny analysis to an ordinance that

regulated, in part, signs located on private premises).

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Appendix B

public forum to protect public health, safety, and welfare.”

Doc. 48, Def.’s Br., 19 (citing Beckerman v. City of Tupelo,

664 F.2d 502, 509 (5th Cir. 1981)). “The concept of the public

welfare is broad and inclusive,” encompassing aesthetic

and economic concerns, and “[e]ven aesthetic conditions

justify reasonable time, manner and place restrictions on

speech,” Arlington asserts. Id. (first quoting Berman v.

Parker, 348 U.S. 26, 33, 75 S. Ct. 98, 99 L. Ed. 27 (1954);

then citing Metromedia, Inc. v. City of San Diego, 453

U.S. 490, 507-08, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981);

and then citing Members of City Council of City of L.A. v.

Taxpayers for Vincent, 466 U.S. 789, 817, 104 S. Ct. 2118,

80 L. Ed. 2d 772 (1984)). Arlington claims that precedent

establishes that the interests behind this Ordinance—

which “aims to reduce or eliminate blight, illegal dumping,

scavenging, and other well-documented hazards to

property owners, pedestrians, and the general public

caused by the proliferation of unattended and unregulated

donation boxes”—are substantial. Id. at 20 (first citing

Metromedia, 453 U.S. at 507-08; and then citing Recycle

for Change, 856 F.3d at 674). Plaintiffs do not challenge

Arlington’s characterization of the asserted interests as

substantial. See Doc. 56, Pls.’ Resp., 28-34 (addressing

only overbreadth and tailoring for intermediate scrutiny).

In support of its contentions, Arlington submits

evidence including the Visual Survey and Supplemental

Visual Survey, Doc. 49, Def.’s App., 5-109, 217-99. These

document potentially hazardous or unsightly conditions

associated with donation bins located in Arlington

between January and July 2018, before the Ordinance’s

adoption. Id.

54a

Appendix B

The Court finds that Arlington has a substantial

interest in combating blight, controlling illegal dumping,

and protecting property owners, pedestrians, and drivers

from safety hazards related to uncontrolled, poorly

maintained, or hazardously-sited donation bins. See

Recycle for Change, 856 F.3d at 674 (government’s interest

in “combat[ing] blight, illegal dumping, graffiti, and traffic

impediments that endanger drivers and pedestrians”

related to donation bins is substantial); see also, e.g.,

Watkins, 123 F. Supp. 3d at 867 (government interest in

pedestrian and traffic safety is substantial); Lauder, Inc.

v. City of Houston, 751 F. Supp. 2d 920, 934 (S.D. Tex.

2010), aff’d, 670 F.3d 664 (5th Cir. 2012) (government’s

interest in pedestrian safety and aesthetics is substantial);

RTM Media, L.L.C. v. City of Houston, 518 F. Supp. 2d

866, 875 (S.D. Tex. 2007), as amended on clarification

sub nom. RTM Media LLC v. City of Houston, 2007 U.S.

Dist. LEXIS 96656, 2007 WL 5006527 (S.D. Tex. Oct. 16,

2007) (government’s interest in “reducing and preventing

‘billboard blight’ for reasons of aesthetics, traffic safety,

and property values” is substantial).

Narrowly Tailored

“In the context of intermediate scrutiny, narrow

tailoring does not require that the least restrictive

means be used. As long as the restriction promotes a

substantial governmental interest that would be achieved

less effectively without the restriction, it is sufficiently

narrowly tailored.” Moore v. Brown, 868 F.3d 398, 404

(5th Cir. 2017) (quoting Serv. Emps. Int’l Union, 595

F.3d at 596). However, the regulation must not “burden

55a

Appendix B

substantially more speech than is necessary to achieve

the government’s legitimate interests.” Ward, 491 U.S.

at 798-99.

Zoning Restrictions

First, Plaintiffs argue that the Ordinance is not

narrowly tailored because it completely bans bin-based

solicitations and associated donative conduct from twenty

five of Arlington’s twenty eight zoning districts. Doc. 51,

Pls.’ Br., 36-42 (discussing the Zoning Restrictions under

strict scrutiny); Doc. 56, Pls.’ Resp., 31-34 (discussing

the Zoning Restrictions under intermediate scrutiny).

Plaintiffs claim that the Supreme Court’s opinion in

McCullen v. Coakley, 573 U.S. 464, 134 S. Ct. 2518, 189

L. Ed. 2d 502 (2014), shows that the Ordinance fails

intermediate scrutiny because it “carve[s] out a chunk of

space where no First Amendment activity [is] allowed”

and both “‘impose[s] serious burdens on [Plaintiffs’]

speech’ . . . and . . . ‘burden[s] substantially more speech

than necessary to achieve the [government’s] asserted

interests.’” Doc. 56, Pls.’ Resp., 29 (quoting McCullen,

573 U.S. at 487, 490). The three zones—”Industrial

Manufacturing (IM), Light Industrial (LI), and General

Commercial (GC)”—in which bins are allowed are

low-traffic industrial and manufacturing zones on the

“periphery of the City” where Arlington residents are

unlikely to see the messages, they say. Doc. 51, Pls.’ Br.,

36-37.

Plaintiffs further argue that the Zoning Restrictions

“lack[] nexus” because the they “do[] not ensure that

56a

Appendix B

the bins are maintained in a manner that minimizes

blight in any ‘direct and material way’” but “protect

against hypothetical future maintenance violations” by

prophylactically prohibiting speech though less-restrictive

alternatives are available. Id. at 37-39 (discussing Blitch v.

City of Slidell, 260 F. Supp. 3d 656, 670 (E.D. La. 2017)).

The alternatives Plaintiffs suggest are allowing bins in

the presently “forbidden commercial areas” and seeing if

the Ordinance’s maintenance requirements and system of

fines and violations for permit holders who violate those

requirements are effective in preventing the targeted ills,

or considering “weekly pick-ups and bin inspections for

all outdoor containers.” Id. at 39-41.

Arlington responds that the Ordinance satisfies

intermediate scrutiny because it “curtails no more speech

than is necessary to accomplish its purpose” and leaves

open ample alternative channels of speech by allowing

“donation boxes in over 62% of all non-residentially-zoned

land in the City, an area comprising over 7,138 acres.”

Doc. 48, Def.’s Br., 10-11, 21 (emphasis omitted). “By

way of comparison, there are four non-residential zones

in which donation boxes are not permitted: Community

Commercial (3,578.5 acres), Downtown Business (105.8

acres), Limited Office (1.5 acres), and Office Commercial

(576.8 acres) . . . . These zones account for approximately

37% of all non-residentially zoned land in the City.”11

11. Arlington asks the Court to take judicial notice of Article

2 of its Unified Development Code (UDC), which establishes the

city’s zoning. Doc. 48, Def.’s Br., 10 n.9. The UDC is a publicly

available document accessible on the City of Arlington’s website

at: https://www.arlingtontx.gov/city_hall/departments/planning_

57a

Appendix B

Doc. 48, Def.’s Br., 11 n.10. Arlington explains that the

permitted zones were chosen because the businesses and

parking lots in those zones have “space to accommodate

donation boxes without impeding traffic, both on and off

street.” Doc. 54, Def.’s Resp., 20.

There is evidence to support both parties’ positions.

The City’s evidence shows that before the Ordinance’s

enactment some don

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