Court Upholds Day Laborers First Amendment Right to Solicit Work

Day laborers have a First Amendment right to solicit work along a California roadside.

That’s the word out of the Ninth Circuit Court of Appeals, which ruled on Friday in Comite de Jornaleros v. City of Redondo Beach that a Redondo Beach ordinance banning workers from standing on a street or highway to solicit work was a facially unconstitutional restriction on speech.

Redondo Beach initially adopted the controversial ordinance, which prohibited workers from soliciting employment from occupants of motor vehicles, in 1987. In 1989, the city added a subsection to the ordinance that prohibited motor vehicles from hiring or attempting to hire workers on the city’s streets and highways.

In 2004, the city began an operation to identify and arrest day workers who violated the ordinance. The Comite de Jornaleros de Redondo Beach (Comite) and National Day Laborer Organizing Network filed this lawsuit alleging that the ordinance is a facially unconstitutional restriction on day laborers' and other persons' First Amendment rights.

A regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests. While it need not be the least restrictive means of achieving the government's goals, it may not burden speech substantially more than necessary.

The Ninth Circuit's decision turned on whether the Redondo Beach ordinance was narrowly tailored to achieve Redondo Beach's interest in promoting traffic flow and safety. While it was undisputed that traffic flow and safety are legitimate problems in certain parts of Redondo Beach, the court found that the ordinance restricted speech significantly more than was necessary because the city could have employed less restrictive alternatives to achieve its goals.

In addition to its unconstitutional limits on free speech, the Ninth Circuit Court of Appeals noted that the ordinance was geographically over-inclusive. The Redondo Beach ordinance applied citywide to all streets and sidewalks, yet the city has introduced evidence of traffic problems only with respect to a small number of major streets and medians.

Comite de Jornaleros v. City of Redondo Beach overrules a 1986 Ninth Circuit Court of Appeals decision, ACORN v. City of Phoenix.

Related Resources:

• Comite de Jornaleros v. City of Redondo Beach (FindLaw's CaseLaw)
• Bradley Johnson Banner Order Does Not Violate First Amendment (FindLaw's Ninth Circuit blog)
• Stop, Valor Thief? DOJ Asks for Supreme Court Speech Opinion (FindLaw's Supreme Court blog)