Employment Law Daily Ordinance regulating solicitation by day laborers unconstitutionally restricted commercial speech
Friday, August 25, 2017

Ordinance regulating solicitation by day laborers unconstitutionally restricted commercial speech

By Ronald Miller, J.D.

A federal district court correctly held that a city ordinance ostensibly designed to regulate solicitation of work by day laborers was an unconstitutional restriction of commercial speech in violation of First Amendment, ruled a divided Second Circuit in a 2-1 decision. The appeals court held that an advocacy group that counseled day laborers at “shape-up sites” within the town demonstrated a sufficient injury-in-fact to confer standing to challenge the ordinance. On the merits, it agreed with the lower court that the ordinance restricted speech based on its content and was therefore subject to the First Amendment; the ordinance failed the Central Hudson test because it is an overbroad commercial speech prohibition. Judge Jacobs filed a separate dissenting opinion (Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, August 22, 2017, Parker, B.).

In 2009, the Town of Oyster Bay passed an ordinance titled “Solicitation from Streets and Sidewalks Prohibited,” which principally imposed restrictions on persons standing within or adjacent to any public right-of-way within the town to solicit employment from occupants of motor vehicles. The impetus for the ordinance was the desire to regulate day laborers seeking employment in the town. Specifically, it sought to restrict daily gatherings of usually 20-30 day laborers soliciting employment along a four-block stretch of roadway (known as the Forest Avenue shape-up site).

Ordinance enjoined. In May 2010, Centro and the Workplace Project, advocacy groups for immigrant workers, sued to enjoin the ordinance on the ground that it violated the First and Fourteenth Amendments. The district court’s initial ruling that the ordinance was not protected by the First Amendment was reversed on appeal because the record on appeal contained no factual development. On remand, the town moved for partial summary judgment on the ground that the plaintiffs lacked standing. The district court denied the motion, concluding that the plaintiffs adequately established that the ordinance would impose actionable injuries to them as an organization. Thereafter, the plaintiffs moved for summary judgment, which the district court granted. After finding that that ordinance violated the First Amendment, the district court permanently enjoined the town from enforcing it. This appeal followed.

Standing. Workplace is an incorporated membership organization whose mission is to end the exploitation of Latino immigrant workers, and achieve economic justice for those workers. It furthers its mission through community organizing, legal support, education, leadership development and building worker cooperatives. The town challenged the district court’s determination that Workplace had standing, arguing that the organization failed to establish injuries that were concrete or imminent. Its main argument on appeal was that the plaintiffs lacked standing because they were essentially disorganized ad hoc interest groups that aimed to vindicate generalized grievances, rather than redress concrete and imminent harms. The district court concluded that both Workplace and Centro had standing to challenge the ordinance because they both established that enforcement of the ordinance would pose a “perceptible impairment” to their activities.

Concrete injuries. The Second Circuit held that the district court correctly ruled that Workplace had standing (but found no need to determine whether Centro had standing). The appeals court disagreed with the town’s assertion that Workplace failed to establish injuries that were concrete or imminent. It observed that the Supreme Court has been clear that in a pre-enforcement action, the “injury required for standing need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct.” Here, the record demonstrated that Workplace’s activities included traveling to day laborer sites to speak to laborers, and if the ordinance achieves one of its principal objectives—disbursement of day laborers—Workplace would inevitably face increased difficulty in meeting with and organizing those laborers.

Because Workplace showed that the ordinance would impede its ability to carry out its mission, it showed an injury-in-fact. It was also clear that the ordinance would force Workplace to divert money from its other current activities to advance established organizational interests. Where an organization diverts resources away from its current activities, it has suffered an injury that has been repeatedly held to be independently sufficient to confer organizational standing. Finally, Workplace offered evidence that enforcement officials were likely to confuse the conduct of its activists with that of the day laborers. This risk of erroneous arrest made it perceptible that enforcement of the ordinance would prevent Workplace from engaging in counseling at shape-up sites within the town, and thus, impair its advocacy activities.

The appeals court also disagreed with the town’s argument that any potential injury to Workplace was not imminent. The record established that the organization had substantially more than an imminent intention to engage in the activity that would subject it to the injuries it asserted.

Constitutionality of ordinance. The appeals court next turned to the constitutionality of the ordinance under the First Amendment, and found the district court correctly held the measure was a restriction of commercial speech in violation of First Amendment. First, the appeals court determined that the ordinance was a content-based restriction. In so finding, the court had to assess whether the ordinance survived the Central Hudson test applicable to commercial speech restriction. It agreed with the district court that the ordinance restricted speech based on its content and was therefore subject to the First Amendment; and the ordinance failed the Central Hudson test because it is an overbroad commercial speech prohibition.

In a separate unpublished decision, the appeals court also concluded that the district court did not abuse its discretion in entering a protective order that limited the information that advocacy organizations for immigrant day laborers were required to produce about their members.

Dissent. Judge Jacobs issued a dissenting opinion in which he would have ordered dismissal for lack of standing as to both organizations. With regard to Centro, the dissent argued that it seemed not to exist except as a vehicle for this litigation. And while Workplace was a real organization, it was not based in town. Moreover, Judge Jacobs would find that any supposed interference with the organization’s mission to serve day laborers was conjectural, vague, and generalized. Its arguments failed to establish “the irreducible constitutional minimum of standing,” in his view. The dissent also argued that the injunction entered by the district court was broader than the First Amendment violation would justify. He argued that the appropriate remedy was to sever the offending provision of the ordinance.

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