Jim Porter: Why did the solicitor cross the road?
July 22, 2010
The Comite De Jornaleros De Redondo Beach versus City of Redondo Beach is a federal First Amendment free speech case that may have far reaching implications.
Redondo Beach wanted to alleviate sidewalk congestion and traffic hazards at two key intersections, which regularly occurred when large numbers of people looking for day jobs congregated on sidewalks during rush hours and#8212; trying to engage drivers. We are all familiar with that scenario.
Redondo Beach adopted an ordinance which made it unlawful for any person and#8220;to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from any occupant of any motor vehicle …and#8221; street or highwayand#8221; … means … roadways, parkways, medians, alleys, sidewalks, curbs, and public ways.and#8221;
Is that ordinance a violation of free speech guaranteed by the First and Fourteenth Amendments?
The Comite De Jornaleros De Redondo Beach and the National Day Laborer Organizing Network thought so and filed suit in federal district court.
The trial court found the ordinance and#8220;content neutral,and#8221; meaning it was not aimed at trying to stop a particular type of speech, but the ordinance was ruled invalid because it was too broad, too encompassing. Redondo Beach appealed to the United States Court of Appeals.
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The Redondo Beach day worker ordinance grew out of a similar ordinance previously adopted by the city of Phoenix. Phoenix was attempting to deter members of the controversial Association of Community Organizations for Reform Now (ACORN) from and#8220;tagging,and#8221; which involves an individual stepping into the street and approaching an automobile when it is stopped at a red traffic light. The individual asks the occupants of the vehicle for a contribution to ACORN and distributes a slip of paper, or and#8220;tag,and#8221; providing information about ACORN and its activities.
The Phoenix ordinance was upheld as constitutionally valid. In a copy-cat move, Redondo Beach adopted an identical ordinance, adding however that an individual looking for work while standing on a sidewalk, as opposed to a street or highway, was also prohibited activity. Phoenix’s ordinance did not prohibit someone standing on a sidewalk soliciting contributions from passing vehicles.
The U.S. Court of Appeals upheld Redondo Beach’s ordinance, finding it identical to the Phoenix ordinance and a valid time, place or manner restriction of speech in a public forum (i.e., streets and sidewalks).
The Court of Appeals rejected the Plaintiff’s and#8220;imaginary concerns that children selling lemonade or Girl Scouts selling cookies outside a school will be impacted by Redondo Beach’s ordinance.and#8221;
Judge Wardlaw wrote a voluminous dissenting opinion arguing the ordinance was overly broad and restricts perfectly legal activities on sidewalks and streets. The dissent hinted that the ordinance had been adopted to address undocumented immigrants.
Judge Wardlaw’s primary argument was that the court-approved Phoenix ordinance challenged by ACORN regulated solicitations from streets and roadways (like running up to vehicles (and#8220;taggingand#8221;)) while the Redondo Beach ordinance went further and#8212; regulating solicitation of day jobs by workers standing on sidewalks not interfering with traffic.
Today’s column is my lame attempt to summarize a complicated free speech case. Refer to the case if you are interested in this topic.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at email@example.com or at the firm’s web site http://www.portersimon.com.
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