Cities Can Prohibit Solicitions of Employment Between Day Laborers and Drivers to Protect Traffic Flow and Public Safety

June 11, 2010, by Dawn McIntosh

The Ninth Circuit has upheld an ordinance adopted by the City of Redondo Beach which prohibits solicitations of employment (as well as business and contributions) between day laborers and occupents of motor vehicles on streets or highways. Both the trial court and the Ninth Circuit in Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, No. 06-56869, found the ordinance to be a content-neutral time, place and manner restriction because it regulates the conduct associated with the solicitation, the in-person discussion between day laborers and drivers in traffic, rather than the message being conveyed. The Court of Appeal departed from and overruled the trial court's ruling that the ordinance was unconstitutional, finding that 1) the restriction is narrowly tailored to further the significant government interests in promoting the free flow of traffic and public safety and 2) ample alternative avenues of communication are available because a person could solicit "business, employment or contributions" from people on sidewalks or in other public fora in Redondo Beach, therefore the message could still reach the intended audience. The Court also rejected a vagueness challenge to the ordinance, finding 1) an ordinary person would have fair knowledge of what was prohibited and 2) there is not a significant danger of arbitrary enforcement because the ordinance requires a "true or false determination," not a subjective judgment. The Court relied heavily on two prior Ninth Circuit opinions which upheld and struck down, respectfully, regulations of conduct related to expression and speech in public fora - ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986) and Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009)(en banc).

As with all cases involving a First Amendment analysis of a local government's regulation restricting speech or conduct in public fora, this case is fact driven as the Court was quite concerned with the potential dangers of solicitations requiring the active engagement with drivers of vehicles in active traffic areas, particularly at two busy intersections within the City. This case is a good reminder that when a municipality is considering adoption of a regulation that may affect speech or expressive conduct in a public forum, it is imperative that it first conduct a careful analysis of the potential implications under the First Amendment.

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