Circuit strikes down day-laborer sidewalk speech law

The Court of Appeals holds that a Long Island ordinance that prohibited people from soliciting work on the side of the road violates the First Amendment. The Town of Oyster Bay enacted this law to restrict immigrants from seeking work as day laborers.

The case is Centro De La Comunidad v. Town of Oyster Bay, decided on August 22. In 2009, the Town passed a law that said:

It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.

The law does not explicitly reference immigrants, but the law was enacted to regulate day laborers seeking employment in the town. Plaintiffs challenged this law under the First Amendment, which provides the government some leeway in regulating commercial speech. But even the commercial speech doctrine will not allow localities to regulate speech if the laws are not drafted properly. As this law was not drafted properly, the Court strikes it down.

The government can regulate commercial speech if (1) the law regulates lawful activity; (2) the town asserts substantial reasons for enacting the law; (3) the law directly advances that interest; and (4) the law is not more extensive than necessary to advance that interest. We call this the Central Hudson doctrine.

The Second Circuit (Parker, Restani [sitting by designation] and Jacobs [who dissents]) starts off by holding the law does in fact regulate speech-related conduct, as day-laborers looking for work are soliciting employment; that expresses a message. The majority goes on to say that the ordinance regulates lawful activity, since not all persons seeking work on the side of the road are illegal workers who don't pay their taxes and are otherwise unauthorized to work in the U.S. "The solicitation of employment ... is not in and of itself illegal," the Court says. After reviewing comparable cases from around the country, the Court concludes, "the First Amendment offers no protection to speech that proposes a commercial transaction if consummation of that transaction would necessarily constitute an illegal act. However, if, as here, there are plausible ways to complete a proposed transaction lawfully, speech proposing that transaction “concerns lawful activity and is therefore protected commercial speech." Since the law extends to U.S. citizens who are looking for work, it regulates legal activity and is subject to First Amendment standards.

After concluding that the law advances a substantial government interest in protecting the health, safety and welfare of motorists and pedestrians using public roads, the Court proceeds to a more complicated analysis: does the law restrict more speech than necessary to achieve its aims? The answer is yes. This is a far-reaching ordinance, the Court says, because it prohibits speech that poses no threat to safety in the town's streets and parks. In addition, the town had less burdensome ways to address public safety than to restrict speech; it could have simply enforced state and local public safety laws. As Judge Parker writes, "there are numerous ways in which an individual, adjacent to any public right-of-way, might attempt to stop a motor vehicle utilizing said public right-of-way for the purpose of soliciting employment that would cause no threat whatever to public safety." Noting that people can stand on the side of the road soliciting employment without stopping the car or simply holding a sign that reads, "Will Work for Food," the Court notes 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."