Thursday, March 1, 2012
Two provisions seek to regulate what is generally termed day labor. One provision makes it unlawful for an occupant of a motor vehicle that is stopped on a street,roadway, or highway and is impeding traffic to attempt to hire a person for work at another location. Another provides that it is unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic.
In Friendly House v. Whiting, Judge Susan Bolton has just ruled on a renewed motion for preliminary injunction against both these provisions, reasoning that the plaintiffs were likely to prevail on the merits of the First Amendment challenge to the provisions.
Judge Bolton rejected the plaintiffs' contention that the SB1070 provisions were not commercial speech, agreeing with Arizona that the regulated speech did little more than propose a commercial transaction and thus the lesser standard governing commercial speech should apply . Nevertheless, applying the Central Hudson test, Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980), as slightly modified with regard to the last prong when there is content discrimination as in last term's case of Sorrell v. IMS Health, Inc., Judge Bolton held that the provisions were unconstitutional.
On Central Hudson's threshold prong - - - that the communication is neither misleading nor related to unlawful activity - - - Bolton focused on the communication itself, rejecting Arizona's contention that "impeding traffic" was unlawful activity and thus the First Amendment did not apply. She noted that Arizona did not (and could not) argue that day labor itself was unlawful.
On Central Hudson's government interest prong, Judge Bolton found that the interest of traffic safety easily met the standard of a substantial interest. With more difficulty, Bolton also found that the restriction directly advanced the substantial interest of safety, even though the ban was content-based and thus "by logical extension underinclusive to some degree."
It was Central Hudson's final prong, especially as modified by Sorrell, that proved fatal to the SB1070 provisions. Central Hudson provides that the regulation "must not be more extensive than is necessary to serve that interest," while makes clear that the law must not seek "to suppress a disfavored message."
Judge Bolton reasoned that there were less burdensome means in the pre-existing traffic regulations, and also noted that "S.B. 1070 contains a purposes clause" stating that the intent of the Act "is to make attrition through enforcement the public policy of all state and local government agencies in Arizona” and that “[t]he provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Importantly, she reasoned, "nowhere does it state that a purpose of the statutes and statutory revisions is to enhance traffic safety." Thus, because the provisions "were created as part of a package of statutes and revisions aimed at perceived problems related to unlawful immigration" weighs against a finding that the provisions are “drawn to” address a traffic problem.
In weighing the standards for a preliminary injunction other than likelihood to prevail on the merits, Judge Bolton found the balance of equities and the public interest were in favor of injunctive relief.
Thus, the day labor solicitation provisions join the other provisions that have been held unconstitutional, and will most likely also provoke extended litigation.
[image: "Street Art" by Kotzian via]