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Thursday, September 7, 2017

Town Ordinance Unconstitutional as Restriction on Commercial Speech

On August 22, 2017, the Second Circuit Court of Appeals held that a Town’s Ordinance regulating solicitation by day laborers violated the First Amendment as a content-based restriction on speech. You can read the case here.

In 2009, the Town of Oyster Bay in Long Island enacted an Ordinance prohibiting anyone standing on the sidewalk to solicit employment and barring drivers from stopping to solicit or hire employment. The Town’s stated reason behind this Ordinance was to make sidewalks and streets safer for both pedestrians and traffic, creating a legitimate town interest for enactment. However, the Second Circuit noted in its decision that the record indicated the actual reason for the enactment of such an Ordinance was to regulate day laborers who are seeking employment in Oyster Bay. The court also highlighted the fact day laborers have made their living soliciting work in the Town for years, and the Ordinance passed in 2009 was an attempt to remove them from the sidewalks where they would look for their employment.

Using the test from Central Hudson, the court looked at 4 factors: 

1.  whether the Ordinance restricts speech that concerns lawful activity, 
2.  whether the Town’s asserted interest is substantial, 
3.  whether the Ordinance directly advances that interest, and 
4.  whether the Ordinance is more extensive than necessary to serve that interest. 

The Court of Appeals primarily focused on the last prong of this test. In order to pass this step, the court held that the Ordinance would have to be narrowly drawn to further the Town’s interests. The court concluded that although the stated purpose of the Ordinance was that of legitimate public interest, there were several other ways an individual could solicit employment without causing a threat to public safety. Also, because the Ordinance would apply to other lawful activities, such as students soliciting cars for a high school car wash fundraiser, it restricted a far greater variety of constitutionally protected speech than that posing a threat to both pedestrian and traffic safety.

The court also determined that the Ordinance was an overbroad restriction on lawful commercial speech because it would require Town officials to monitor and evaluate speech made by those who are stopping drivers to determine whether the content of such was permissible or not. The court noted it would not apply to the most common forms of solicitation, that being stopping of vehicles on public rights of way for reasons such as as hailing a cab or a bus. Rather, the Town’s clear principal interest was to suppress speech of a particular type, and not to advance the interests in traffic and pedestrian safety. 

Post Authored by Katherine Takiguchi & Julie Tappendorf, Ancel Glink


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