Jim Porter: Ban on day laborers legal?
August 1, 2013
Hiring day laborers in downtown Truckee and other areas of North Lake Tahoe is somewhat commonplace. May a municipality stop that practice?
Trick question: What is the connection between hiring day laborers and the First Amendment?
ARIZONA'S DAY LABORER LAW
As part of its 2010 comprehensive immigration policy, the State of Arizona passed a law making it unlawful to hire or attempt to hire a person for work at another location from a stopped car that impedes traffic. And a corollary law made it illegal for a person to be hired in such a manner.
TRAFFIC CONTROL OR IMMIGRATION CONTROL
Arizona was immediately sued by a coalition of unions, chambers of commerce and activist groups for violating the First Amendment — freedom of speech.
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Arizona argued the laws had nothing to do with speech and were necessary to control traffic. In its Opinion, the federal Court of Appeals agreed Arizona has a right to pass traffic safety laws.
Unfortunately for Arizona, however, the legislative intent of the 2010 laws mentions nothing about traffic enforcement, and instead reads as follows: "The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States."
In other words, the new laws weren't passed as traffic regulations, they were intended to deter day labor activity by undocumented immigrants.
What does that have to do with the First Amendment? A very good question. I should have thought of it myself.
FIRST AMENDMENT, ARE YOU KIDDING?
This federal Court of Appeals ruled on this case based upon, of all things, free speech. The Court said: "These (new law) provisions raise First Amendment concerns because they restrict and penalize the commercial speech of day laborers and those who would hire them."
The court wrote that Arizona's asserted interest in traffic safety is a sham; that the true purpose of the laws is to remove day laborers from public view and to suppress their economic opportunities.
The new laws limit the ability of day laborers and their would-be employers to solicit, negotiate and consummate the legally permissible transaction of hiring a day laborer; and that my friends is speech.
The Court ruled against Arizona, essentially saying if the State wanted to pass more laws about blocking and obstructing traffic, it has the power to do so. However, it may not single out day laborers as part of its comprehensive immigration laws to deny them the right to be hired, which interferes with their speech, even if cars impede traffic during those negotiations.
The Court granted a preliminary injunction barring enforcement of the day laborer laws.
SHOW ME YOUR PAPERS
Arizona's comprehensive 2010 immigration laws did not fare so well. The U.S. Supreme Court struck down key parts, but let stand a controversial provision allowing police to check a person's immigration status while enforcing other laws — the so called "show me your papers" codes. And now this Court knocked out the day laborer restrictions.
Justice Antonin Scalia wrote a dissenting opinion arguing the majority Court's ruling encroaches on Arizona's sovereign, "If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state." I like that. Justices Alito and of course Thomas agreed.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He was the Governor's appointee to the California Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, foreclosures, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or at the firm's web site http://www.portersimon.com.