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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