Maryland AG Issues Opinion Finding Gaithersburg Anti-Solicitation Ordinance Unconstitutional

The Maryland Attorney General's Office has issued an opinion finding that an anti-solicitation ordinance enacted in 2007 by the city of Gaithersburg is unconstitutional. The ordinance addresses solicitations by both pedestrians and by persons in vehicles, making it unlawful to solicit or to attempt to solicit employment, donations, alms or subscriptions when one party is on a public or private roadway, sidewalk, driveway, parking area or alley, including drive lanes, medians and curbs and the other is in a vehicle. However, the law excludes "any activity conducted within or in accordance with the procedures of a lawfully approved formal assembly site for day workers, or a lawfully approved employment center use".

The opinion first noted that the ordinance's regulation of roadways would be preempted by the Maryland Vehicle Law. Its remaining provisions, addressing conduct in vehicles, on sidewalks or in parking areas, represented violations of the First Amendment as they were not, under the AG's analysis, sufficiently narrowly tailored. The opinion noted that much of the regulated activity takes place in locations understood to be public fora and that an ordinance attempting to establish reasonable time, place and manner restrictions on such speech must be content-neutral and must be narrowly tailored to serve a significant government interest while leaving open ample alternative channels of communication. The ordinance's content-neutrality had been a subject of dispute with critics charging that it was targeted at solicitations of employment by day laborers perceived to be immigrants and possibly undocumented workers.  However, the AG opinion saw the ordinance as written to aim at the conduct of solicitation, not the content thereof, whatever the underlying motivation for its enactment may have been.  However, although the ordinance did ostensibly pursue an important public objective, avoiding safety hazards to motorists and pedestrians on the city's roads, it reached speech soliciting employment or donations in circumstances and in areas, such as parking zones, where no traffic danger would ensue from conversations between persons in cars and pedestrians.             

The opinion had been requested by the Maryland ACLU. As described in a prior post, a similar Arizona ordinance was recently challenged by the ACLU Immigrants' Rights Project and MALDEF.

JFB