John D. Inazu (Duke University School of Law) has posted Making Sense of Schaumburg: Seeking Coherence in First Amendment Charitable Solicitation Law (Marquette Law Review, Vol. 92, No. 3, pp. 551-589, 2009) on SSRN. Here is the abstract:
The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co. (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear understanding of the value of charitable solicitation. It has also left lower courts without a workable test for evaluating regulations affecting this form of speech: the Eighth and Tenth Circuits interpret Schaumburg as an intermediate scrutiny test, the Third and Eleventh Circuits view it as a strict scrutiny test, and the Fourth Circuit has simply noted that the Court has been 'unclear' about the appropriate standard. I propose a new test that incorporates current notions of content analysis and tiered scrutiny and better accounts for the speaker-based interests tied to charitable solicitation. My approach is cognizant of the matters of public concern advanced both directly and indirectly through charitable solicitation. I conclude that a balancing of interests offers a more appropriate review of charitable solicitation regulation than the cumbersome formulations arising out of the Schaumburg trilogy.
And from the end of the paper:
[The Eighth Circuit's] test can be modified to . . . produce the following test:
A content-neutral regulation of charitable solicitation will be sustained if it furthers an important or substantial interest through a narrowly tailored regulation that does not substantially limit charitable solicitation (unless the harm the regulation prevents clearly outweighs the harm caused by the regulation’s limitation).
A fine and careful paper. Recommended.
