Sitting en banc, the Ninth Circuit struck down as unconstitutional a city ordinance that prohibits day laborers from standing on a street or sidewalk to solicit motorists for employment, business, or contributions. The court held by a 9:2 vote that the ordinance violates the day laborers’ and the motorists’ First Amendment rights. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, Nos. 06-55750, 06-56869, 2011 WL 4336667 (9th Cir. Sept. 16, 2011). Judge Milan Smith, Jr., a George W. Bush nominee, wrote the majority opinion. Chief Judge Alex Kozinski, a Reagan nominee, dissented, joined by Judge Carlos Bea, a George W. Bush nominee.
In 1987, the City of Redondo (“City”) adopted an ordinance that makes it “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.” Redondo Beach Municipal Code § 3-7.1601. The ordinance also makes it unlawful for any person to stop their vehicle on a street or highway to attempt to hire a person. Id. While the City modeled the ordinance after a Phoenix ordinance that was upheld by the Ninth Circuit – see ACORN v. City of Phoenix, 789 F.2d 1260, 1262 (9th Cir. 1986) – the City’s ordinance defines “street or highway” more broadly than the Phoenix ordinance. Under the City’s ordinance, “street or highway” includes, amongst other places, sidewalks and alleys. See § 3-7.1601.
In October 2004, the City initiated the “Day Labor Enforcement Project,” under which undercover police officers posed as potential employers and arrested thirty-five day laborers for soliciting work from stopped vehicles. Within a month the City arrested another twenty-five day laborers and one contractor for violating the ordinance. Shortly after the undercover sting, the Comite de Jornaleros de Redondo Beach (“Comite”) and the National Day Laborer Organizing Network (“NDLON”) filed a lawsuit under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, alleging that the ordinance is a facially unconstitutional restriction on the day laborers’ and contractors’ First Amendment rights. The district court agreed with the Plaintiffs and issued first a preliminary injunction, and then a permanent injunction, against the ordinance. A three judge panel of the Ninth reversed on the grounds that it was bound by ACORN. The Ninth Circuit then took the case under consideration en banc.
The court began its opinion by holding that the Plaintiffs have standing because the ordinance frustrates NLDON”s mission “to strengthen and expand the work of local day laborer organizations.” See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178, 1182-83. (9th Cir. 2010). Having found that one of the Plaintiffs has standing, the court concluded that it was unnecessary to decide whether the Comite has standing. Id.
After resolving the threshold issues, the court turned to the main issue, whether the ordinance violates the First Amendment. The court began its discussion by laying out the relevant Supreme Court precedents. The court explained that a law that restricts speech may be deemed overbroad and thus unconstitutional as a whole if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” See United States v. Stevens, 130 S. Ct. 1577, 1587 (2010). The court also noted that solicitation constitutes protected speech under the First Amendment – see Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677-78 (1992) – and that public streets and sidewalks “occup[y] a special position in terms of First Amendment protection.” See Snyder v. Phelps, 131 S. Ct. 1207, 1218 (2011)
Turning to the facts of the case, the court agreed with the City that promoting traffic flow and safety is a legitimate purpose for a city to pursue. The main issue for the court was whether the City’s ordinance is narrowly tailored to achieve that purpose. The Plaintiffs presented several examples where the ordinance would prohibit speech that does not relate to traffic flow and safety. For instance, the Plaintiffs explained that the ordinance would prohibit: Girls Scouts from selling lemonade on the sidewalk in front of their homes; food vend vendors from advertising their business to passing motorists; and protestors from soliciting donations for a disaster relief fund. Because of these effects, the court held that the ordinance is significantly overbroad, and thus that it is not narrowly tailored. The court also held that the ordinance is geographically overinclusive because it applies citywide to all streets and sidewalks, even though the City only introduced evidence of traffic problems in a limited number of areas.
The court went on to point out that there are several less restrictive means that the City could have taken to achieve its stated goal of promoting traffic flow. For instance, the court stated that the City could enforce its own ordinances that prohibit people standing in the roadway if the action interferes with traffic. See Redondo Beach Municipal Code § 3-7.1004. The court added that while the City need not employ the least-restrictive alternative, it cannot select an option that significantly burdens speech that is protected by the First Amendment. Accordingly, the court affirmed the district court’s decision invalidating the ordinance.
In a concurrence, Judge Ronald Gould, a Clinton nominee, agreed that the ordinance was not narrowly tailored. He added that the City did not meet its burden of showing that the ordinance “leave[s] open ample alternative channels for communication of the [restricted] speech.” See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Judge Gould also set forth a permissible alternative for the City. According to Judge Gould, “[i]f the City had designated a permissible area for day laborer solicitation, in a convenient location for day laborers and potential employers alike, I would hold that the ordinance was a reasonable time, place, and manner restriction.”
In a special concurrence, Judge Smith, who wrote the majority opinion, set forth two additional reasons why the ordinance is facially invalid. This concurrence was joined by Judge Thomas and in part by Judge Graber (both Clinton nominees). Judge Smith first explained that the ordinance is a content-based restriction on speech that does not withstand strict scrutiny. He reasoned that the ordinance restricts discussion of a particular subject matter – speech that requests employment, business, and contribution – while allowing speech on other subject matters. Judge Smith went on to explain that even if the ordinance can be considered content neutral, it is facially invalid because it does not leave open alternative channels of communication. See Ward, 491 U.S. at 791. Judge Smith rejected the City’s argument that the day laborers could congregate in a nearby parking lot to solicit business because he agreed with Plaintiffs that the City cannot force the workers from a public space onto private property.
Chief Judge Alex Kozinski began his dissent by stating that “[t]his is folly.” Judge Kozinski disagreed with the majority that the ordinance is overly restrictive, stating that “[t]he judicial imagination can always run wild in conjuring how laws can be misapplied.” He added that there is no evidence that the City has ever enforced the ordinance in the manners conjured by the majority.
Judge Kozinski also took aim at the majority’s reading of the term “solicit” in the ordinance. According to the majority, the term “solicit” covers all communications with motorists, which would include, for instance, a person holding up a billboard that supports a political candidate. In Judge Kozinski’s view, the term should be read narrowly to include only face-to-face communications between people on the sidewalk and people in stopped cars. If the term were construed in this manner instead, Judge Kozinski argued, the ordinance would be a valid time, place, and manner restriction, and thus constitutional.
After noting that there might not be less restrictive means of achieving the city’s goal of improving traffic flow, Judge Kozinski concluded his dissent by arguing that, at a minimum, the majority could have severed portions of the ordinance while leaving the portions that do not offend the constitution intact.
Scott Herrig, University of California, Berkeley-School of Law 2012