Ordinance Prohibiting Day Laborers from Soliciting Employment from Motorists Does Not Violate Free Speech Rights

In Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, the Ninth Circuit has held that a Redondo Beach ordinance, which prohibits persons from standing on a street or highway and soliciting employment, business, or contributions from motorists, is a content-neutral, reasonable time place and manner restriction that does not violate First Amendment freedom of speech rights. As with all cases involving a First Amendment analysis of a local government’s regulation restricting speech or conduct in public forum, this case is intensely 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.

The Ninth Circuit agreed with the district court that the ordinance is content neutral because it regulates conduct, not any particular message, idea or form of speech, and serves purposes unrelated to the content of the expression. The Ninth Circuit then departed from and reversed the district court, finding the ordinance 1) is narrowly tailored to promote the City’s substantial governmental interests in traffic flow and public safety because it only prohibits in-person demands that require an immediate response from motorists, and 2) provides ample alternative channels of communication by allowing persons to solicit from people on sidewalks or similar public venues within the City, 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 Ninth Circuit relied heavily on its previous decision in ACORN v. City of Phoenix, 798 F. 2d 1260, 1273 (9th Cir. 1986), which upheld a very similar ordinance which Redondo Beach used as a model when writing its ordinance.

The Court also repeatedly referenced its opinion issued last year in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (en banc) where the Court struck down a regulation restricting the solicitation of donations by street performers in public parks, because the Court determined the regulation was content-based rather than content-neutral. In an effort to reconcile its seemingly paradoxical holdings in the Berger case and this case, the Court explained that bans on acts of solicitation are content-neutral, even if they have a disparate effect on some speakers or messages but not others, whereas bans separating out words of solicitation for differential treatment are content-based. The Redondo Beach ordinance fell into the former category, according to the Court, because it allows day laborers to solicit employment from passersby or even from motorists so long as the transaction for employment did not occur while the motorist was still in the street.

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.

Meyers Nave closely monitors developments in the First Amendment arena and will continue to provide pertinent updates. For questions regarding the impact the Redondo Beach decision may have on current or planned regulations, contact Deborah Fox  at 800.464.3559.