Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 2011 U.S. App. LEXIS 19212 (9th Cir. Sept. 16, 2011)

Facts: Two organizations challenged a City of Redondo Beach (“City”) Ordinance on behalf of day laborers.  The Ordinance restricted individuals from standing on a street or highway to “solicit, attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle.”  Law enforcement in the City initiated stings where they posed as day-laborers and arrested several individuals for failing to comply with the Ordinance.

The district court found for the plaintiffs and issued a preliminary injunction barring the City from enforcing the Ordinance.  A merits panel reversed the district court’s judgment.  Now, the highest circuit court is hearing the case.

Issue: Is the City of Redondo Beach Ordinance preventing solicitation constitutional?

Holding: No.  The City of Redondo Beach Ordinance is unconstitutional.

Reasoning: If the government wishes to restrict free speech under the First Amendment, the government bears the burden of proving that its actions are constitutional.  If the government seeks to restrict free speech, it must only impose “reasonable restrictions on the time, place, or manner of protected speech” and the restriction must be “narrowly tailored to serve a significant governmental interest.”

Here, the Ordinance applies too broadly.  It regulates conduct in addition to speech.  It is not narrowly tailored to meet a legitimate interest.  It would go as far as to apply to children selling lemonade outside their homes or to preventing girl scouts from selling cookies at the local supermarket.  Additionally, the Ordinance is geographically too broad.  The legislative intent indicated that the issue the Ordinance set out to fix was traffic concerns in specific areas.  The City could accomplish its goals in a much less restrictive manner.

The decision distinguishes ACORN v. City of Phoenix (798 F.2d 1260, 1260-1261 (9th Cir. 1986)), which permitted a similar ordinance regulating solicitation of vehicles because it “was a reasonable regulation designed to promote public peace, health, and safety.”

Concurrence #1: If the City set aside a permissible area for day laborer solicitation in a convenient location, Judge Gould would hold the ordinance met the reasonable time, place and manner restriction.

Concurrence #2: Judge Smith agreed with the decision but had two additional reasons why the Ordinance was invalid.  First, it is a content-based restriction on speech that does not survive the strict scrutiny test.  Second, even if the Ordinance was content neutral, “it does not leave open ample alternative channels” for the day laborers to engage in protected solicitation.

Dissent: Judge Kozinski would have permitted the Ordinance to remain in effect.  He points out that there have been serious consequences in the City as a result of the day laborer gatherings, including littering, vandalizing, urinating, blocking the sidewalk, and harassing females.  He argued that municipalities have a right “to secure the safety, beauty, tranquility and orderliness.”

By: Joshua Goodman

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