Monday, March 4, 2013
Affirming the grant of a preliminary injunction a year ago, a panel of the Ninth Circuit has unanimously upheld Judge Susan Bolton's conclusion that the plaintiffs demonstrated a likelihood of success on the merits of their First Amendment challenge to SB1070's day labor provisions in its opinion in the case now styled as as Valle Del Sol v. Whiting.
The day labor provisions of SB1070, codified at Ariz. Rev. Stat. § 13-2928, provide:
A. It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
B. It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
The panel agreed with Judge Bolton that the day labor provisions regulate commercial speech and thus should be subject to the Central Hudson test, Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980).
The panel also agreed that the day labor provisions were content-based:
On their face, the day labor provisions target one type of speech – day labor solicitation that impedes traffic – but say nothing about other types of roadside solicitation and nonsolicitation speech. They are therefore classic examples of content-based restrictions. Our conclusion is confirmed by the stated purpose of the provisions, their legislative history and the disproportionate sanctions they impose for traffic problems arising from day labor solicitation.
Such a conclusion brings the analysis under the Supreme Court's decision in Sorrell v. IMS Health, Inc., especially as to the fourth prong of Central Hudson. However, the Ninth Circuit disclaimed reliance upon Sorrell, concluding "that the day labor provisions are deficient under even the pre-Sorrell, arguably more government-friendly, precedent urged by Arizona." The panel decided to "defer extended discussion of Sorrell for a more appropriate case with a more fully developed factual record," and simply applied Central Hudson.
The panel's analysis is direct and classic, easily finding that the day labor provisions fail each of Central Hudson's prongs, including the fourth even without the addition of Sorrell's arguably heightened standard for a content-based restriction.
In affirming the grant of the preliminary injunction, the panel highlighted the First Amendment interests at stake and agreed with the district judge that there would be irreparable harm and that the equities tipped in favor of granting the injunction.
Seemingly, if Arizona wants to regulate traffic safety, it is going to have to do so without targeting First Amendment interests.