7th Cir. Upholds Springfield's Panhandling Ordinance, Using A Historic Twist

It can't have happened often (if at all) that a retired Justice would decide a new case based on his reading of an opinion in which he dissented.

Yet that is precisely what happened in Thayer v. Worcester, 755 F.3d 60 (1st Cir. 2014) (Souter, J.), a First Circuit decision from earlier this year in which the now retired Justice Souter, writing for that court, upheld Worcester's panhandling law using Justice Kennedy's analysis from International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). Lee was the latest decision (in a series of three) from the Supreme Court dealing with anti-panhandling laws and one in which Justice Souter had dissented.

The Seventh Circuit highlighted this historic twist recently in Norton v. Springfield, No. 13-3581 (7th Cir. Sept. 25, 2014), where that court considered whether the City of Springfield's panhandling ordinance, which prohibited panhandling in the city's "downstown historic district" and defined "panhandling" as an "oral request for an immediate donation of money," violated the First Amendment. The plaintiffs' argument was that the ordinance amounted to a content-based restriction on their free speech because the ordinance outlawed only immediate oral requests for money, not other requests that evidently seemed less threatening to Springfield's lawmakers—e.g., signs or requests to send money in the future.

The Seventh Circuit's majority opinion, written by Judge Easterbrook (and joined by Judge Sykes), noted that the courts of appeals are split on this issue and appeared to use the fact that Justice Souter, who dissented in Lee, recently voted in Thayer to uphold an ordinance from Worcester because he thought that was how Justice Kennedy would have come...