Monday, June 14, 2010

Ninth Circuit Upholds Ban on Day Laborers' Solicitation for Employment

A divided three-judge panel of the Ninth Circuit last week upheld a Redondo Beach ordinance designed to ban employment solictation by day laborers in Comite de Jornalers de Redondo Beach v. City of Redondo Beach.  Plaintiffs in the case lodged a facial challenge to the ordinance under the First Amendment. 

The ordinance reads as follows:

(a) It shall be unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle.  For purposes of this section, "street or highway" shall mean all of that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, medians, alleys, sidewalks, curbs, and public ways.

The City later enacted another provision applying to solicitees:

(b) It shall be unlawful for any person to stop, park or stand a motor vehicle on a street or highway from which any occupant attempts to hire or hires for employment another person or persons.

The provisions were adopted in response to complaints by local residents and business owners that day laborers were clogging sidewalks and city streets, impeding the flow of traffic, littering, damaging property, and harassing females.

The two-judge majority upheld Section (a) as a reasonable, content-neutral time, place, or manner restriction on speech in a public forum.  The court wrote that the ordinance was narrowly tailored to serve the City's significant interests in traffic flow and safety, even if the ordinance might also ban some speech that would not serve this interest (e.g., a child's sidewalk lemonade stand or a Girl Scout cookie sale).  The court:

[H]ypothetical examples of how the government could theoretically apply an ordinance to target "more than the exact source of the 'evil' it seeks to remedy" are not sufficient to establish inadequate trailoring.

Opinion at 22, citing Wash. State Grange v. Wash. State Republican Party.  The court relied heavily throughout the opinion on its 1986 ruling in ACORN v. City of Phoenix, upholding a virtually identical ordinance designed to prohibit ACORN members from soliciting donations from stopped drivers (but also applied to solicitations on adjacent sidewalks). 

The court also ruled that the ordinance was not unconstitutionally vague.

Judge Wardlaw issued a sharp and lenghty dissent, writing that the ordinance is overbroad, that the majority wrongly applied ACORN (because that case was an as-applied, not facial, challenge in which overbreadth was not before the court), that the ordinance is not narrowly tailored to achieve the City's interests, and that the ordinance fails to leave open adequate alternative avenues for expression.

The ruling means that broadly sweeping bans on solicitatation in the Ninth Circuit will withstand First Amendment challenges, unless and until the full court reconsiders.  But here's one such ban, from Arizona's new immigration law, that could test the limits:

C. It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work [or] solicit work in a public place . . . .

If this provision in Arizona's new law goes up, the state will undoubtedly take the position that the covered solicitation is for an illegal activity--employment by an unauthorized alien.  (The City made that argument against plaintiffs' standing in Comite de Jornalers.)  But as Judge Wardlaw writes in footnote 1 of her dissent:

But even if the City's prejudgment as to the day laborers' immigration status were correct, it is legally beside the point.  The First Amendment protects individuals, regardless of their immigration status.

Opinion at 35, citing Am-Arab Anti-Discrimination Comm. v. Reno (9th Cir. 1995) and Plyler v. Doe.

Beyond the standing question and the applicability of the First Amendment to solicitation for illegal work, the Arizona law sweeps far more broadly than the Redondo Beach ordinance: It applies to any "public place," not just streets and sidewalks.  But Arizona's interest--enforcing employment laws against undocumented aliens--is broader too, perhaps making the law an acceptable fit under the time, place, manner test.  Then instead of looking at fitness, the analysis could turn on the state interest question: Does a state have a significant interest in banning employment by undocumented aliens, in light of the federal government's plenary authority over immigration and its comprehensive immigration scheme


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