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Ninth Circuit Finds Anti-Solicitation Ordinance Aimed at Day Laborers Violates First Amendment

The Ninth Circuit invalidated a City of Redondo Beach ordinance that prohibits solicitation between day laborers and occupants of motor vehicles on streets and highways. In Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, Ninth Circuit Case No. 06-55750, No. 06-56869, the Ninth Circuit en banc opinion reversed the prior panel decision that held the Redondo Beach ordinance constitutional. The Court held that the Redondo Beach ordinance is not narrowly tailored to the City’s objective and that the City could use less restrictive means to ensure traffic flow and safety.

Redondo Beach’s ordinance regulates “soliciting” employment, business, or contributions from the occupant of a motor vehicle. The Court rejected the City’s argument that the ordinance regulated only conduct, holding that solicitation is a form of protected speech. In reaching this finding, the Court overruled ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986), which had found that an almost identical ordinance regulated only conduct. Although streets and sidewalks are a public forum, the City can impose regulations that are content-neutral and a reasonable limit on the time, place, and manner of expression. To satisfy judicial scrutiny, the regulation must be “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”

The Court agreed that Redondo Beach had a valid interest in promoting traffic flow and safety, but found that the ordinance burdens significantly more speech than necessary and thus is not narrowly tailored. The majority identified a number of examples of speech prohibited by the ordinance that would not cause traffic flow or safety problems—including girl scouts selling cookies or school kids advertising a carwash. The Court also found the ordinance geographically overinclusive because it applies citywide, when the City only identified problems at two major intersections. And the Court pointed to “readily available alternatives” to the ordinance (such as enforcing jaywalking and motor vehicle regulations) as additional evidence that the ordinance burdens substantially more speech than is reasonably necessary.

Concurring in the judgment, Judge Gould would have also found that the ordinance failed to leave open adequate alternative channels of communication. And Judge Smith, joined by Judges Thomas and Graber, considered the ordinance a content-based restriction that did not pass strict scrutiny. Chief Judge Kozinski, on the other hand, provided a lengthy and vehement dissent joined by Judge Bea. The Chief Judge called the majority to task for rejecting numerous chances to preserve the ordinance, at least in part, and avoid constitutional issues.

Cities with an anti-solicitation ordinance, or those thinking of adopting one, should consider the Comite decision closely. First Amendment cases are often very fact-specific, and Comite is no exception. The majority provides a number of guideposts for cities seeking to craft a constitutional ordinance. The City of Redondo Beach is currently considering whether to appeal the decision to the U.S. Supreme Court.