Friday, September 16, 2011
An en banc panel of the U.S. Court of Appeals for the Ninth Circuit has overruled precedent and reversed a Ninth Circuit decision upholding the City of Redondo Beach's ordinance regulating the solicitation of work by day laborers. See COMITE DE JORNALEROS v. REDONDO BEACH, Nos. 06-55750 & 06-56869 (9th Cir. 2011) (en banc). Judge Milan Smith wrote the majority opinion. There is a concurrence by Judge Ronald M. Gould; Special Concurrence by Judge Milan D. Smith, Jr.; and a Dissent by Chief Judge Alex Kozinski.
In introducing the majority opinion, Judge Smith wrote:
A pair of day-laborer organizations challenge a City of Redondo Beach (Redondo Beach or the City) anti-solicitation ordinance that bars individuals from ôstand[ing] on a street or highway and solicit[ing], or attempt[ing] to solicit, employment, business, or contributions from an occupant of any motor vehicle.∫ Redondo Beach Municipal Code ﬂ 3- 7.1601(a) (the Ordinance). We agree with the day laborers that the Ordinance is a facially unconstitutional restriction on speech.
Our analysis is guided by certain well-established principles of First Amendment law. In public places such as streets and sidewalks, “the State [may] enforce a content-based exclusion” on speech if the “regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). For content-neutral regulations, the State may limit “the time, place, and manner of expression” if the regulations are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Id.
We conclude that the Ordinance fails to satisfy the narrow tailoring element of the Supreme Court’s “time, place, and manner” test. The Ordinance is not narrowly tailored because it regulates significantly more speech than is necessary to achieve the City’s purpose of improving traffic safety and traffic flow at two major Redondo Beach intersections, and the City could have achieved these goals through less restrictive measures, such as the enforcement of existing traffic laws and regulations. Because the Ordinance does not constitute a reasonable regulation of the time, place, or manner of speaking, it is facially unconstitutional.
Professor Kristina Campbell, who worked on the case an attorney at MALDEF, has questioned the reliance on the First Amendment to vindicate the rights of day laborers. Here is the MALDEF press release about the decision.
UPDATE (9/22): The N.Y. Times editorial on the Ninth Circuit decision is an interesting read.