The United States Court of Appeal for the Ninth Circuit recently declared unconstitutional an anti-solicitation ordinance that bars individuals from standing on a street or highway to solicit contributions, business or employment from occupants of motor vehicles. The Court held that the ordinance was a facially unconstitutional restriction on speech. (Comite de Jornaleros de Redondo Beach v. City of Redondo Beach (— F.3d —-, C.A.9 (Cal.), September 16, 2011)).
In May 1987, the City of Redondo Beach (“City”) adopted an ordinance, which was later amended in 1989, designed to prevent individuals from soliciting employment or other business from occupants of motor vehicles on city streets or highways. The ordinance prohibits any person from standing on a street or highway and soliciting or attempting “to solicit employment, business or contributions from an occupant of any motor vehicle.” The terms street and highway are defined as areas dedicated to public use for public streets, public ways, parkways, medians, curbs, alleys and sidewalks. The ordinance further prohibits any person from stopping or parking a motor vehicle on a highway or street to hire, or attempt to hire, a person for employment.
In October 2004, undercover officers posed as potential employers and arrested several day laborers “for soliciting from stopped vehicles” in violation of the ordinance. The police also arrested a contractor for violating the stopping or parking provision of the ordinance. Shortly thereafter, the Comite de Jornaleros de Redondo Beach and National Day Laborer Organizing Network filed a lawsuit alleging the ordinance was a facially unconstitutional restriction on the day laborers, as well as other individuals’ First Amendment rights. The district court agreed and issued a preliminary injunction preventing the City from enforcing the ordinance.
In analyzing the ordinance, the appellate court applied the “time, place and manner” test, which provides that a government may impose reasonable restrictions on the time place, or manner of speech as long as those restrictions: (1) “are justified without reference to the content of the regulated speech,” (2) “are narrowly tailored to serve a significant governmental interest,” and (3) “leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
The City argued the ordinance should be interpreted to regulate solicitation conduct, not solicitation speech because it only prohibits certain acts such as negotiating terms of employment, getting into a car and exchanging money. The Court of Appeal rejected this argument, finding; that because the ordinance prohibits solicitation or attempted solicitation of business and employment, the ordinance plainly attempts to regulate speech, as well as conduct.
The City also asserted that the ordinance should be narrowly interpreted to apply only to those solicitors who actually cause motorists to stop in traffic lanes in response to the solicitor’s solicitation. However, the appellate court found that the plain language of the statute is not reasonably susceptible to this narrow interpretation, as it finds no support in the statutory text or legislative history.
The City also contended that the ordinance should be narrowly tailored to accomplish the City’s interest in promoting safety and traffic flow. However, the ordinance is not narrowly tailored to accomplish the City’s interest because it significantly restricts more speech than is necessary to achieve that interest and the City could have employed a less restrictive means to achieve its goals. The ordinance is geographically overinclusive because it applies to all sidewalks and streets in the City, however, the City failed to offer evidence to justify extending the solicitation ban throughout the City “in such a sweeping manner.”
The appellate court thus concluded that the ordinance failed to satisfy the narrow tailoring element of the Supreme Court’s “time, place and manner” test because it regulates more speech than is necessary to accomplish the City’s goal of improving traffic safety, and traffic flow at two major intersections. The City also could accomplish these goals through less restrictive means. Because the ordinance is not a “reasonable regulation of the time, place or manner of speaking,” the Court found it is facially unconstitutional. The appellate court thus affirmed the district court’s decisions.
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Jeffrey L. Massey | 916.321.4500