Second Circuit Rules Town Ordinance Prohibiting Day Labor Solicitation Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 In its opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, a divided panel of the Second Circuit affirmed the district judge's holding that the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment.

As the opinion by Judge Barrington Parker states:

We arrive at essentially the same conclusion as the district court. Specifically, we agree that: (i) the Ordinance restricts speech based on its content and is therefore subject to the First Amendment; and (ii) the Ordinance fails the Central Hudson test because it is an overbroad commercial speech prohibition.

Like the district judge, the Second Circuit carefully applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980). The court rejected the Town's argument that "each proposed employment transaction by a day laborer whom the Ordinance targets would be an under-the-table illegal employment arrangement, in violation of immigration, tax, and labor laws," and thus concerned illegal activity removing it from Central Hudson's first prong. Instead, the court quoted the district judge's interpretation that the ordinance clearly applied to any person.The court also noted the similar conclusion by the Ninth Circuit in its 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.  

In applying the remainder of the Central Hudson test, while the Second Circuit majority found that there was a substantial interest in traffic safety and that the ordinance sought to directly advance that interest, it concluded that the ordinance was not narrowly drawn: "The Ordinance does not require any connection between the prohibited speech—solicitation of employment—and the asserted interest—traffic and pedestrian safety." Moreover, the court also found

it significant that the Ordinance does not apply to the most common forms of solicitation involving the stopping of vehicles on public rights of way, such as the hailing of a taxi or a public bus. These exemptions strongly suggest that in the great majority of situations, stopping a vehicle on a public right of way creates no inherent safety issue. Entirely prohibiting one speech-based subset of an activity that is not inherently disruptive raises the question whether the Town’s actual motivation was to prevent speech having a particular content, rather than address an actual traffic and pedestrian congestion issue.

Thus, the majority concluded that the ordinance violated the First Amendment.

The majority also affirmed the district judge's conclusion that the plaintiff organizations had standing to challenge the ordinance; dissenting Judge Dennis Jacobs vehemently disagreed.  Judge Jacobs stressed that the Second Circuit disapproves of "representational standing," requiring that the organization have injury as an organization. He characterized plaintiff Centro de la Comunidad Hispana de Locust Valley (“Centro”) as an organization that barely exists except as a "vehicle" for the litigation. (To call it an “unincorporated membership organization” is "a boast.").  He noted that the plaintiff, The Workplace Project, is not in the Town of Oyster Bay but in the Town of Hempstead and that any "supposed interference with the organizational mission of serving day laborers is conjectural, vague, and generalized." Without discussing Central Hudson, dissenting Judge Jacobs also concluded that while the majority's analysis has "persuasive force" as to a portion of the ordinance, its remedy of injunction against the entire ordinance was too broad.

Despite the split in the panel opinion, this may be the end of the litigation for the Oyster Bay ordinance.