First Amendment protects day laborers' solicitations

Scott Forsyth, The Daily Record Newswire

If you have been following the presidential debates, you are hearing we have a massive problem with “illegal immigrants.” The candidates want to beef up the security at the (Mexican) border and require employers to verify the legal status of prospective employees with the federal government. One candidate bellows we should just deport all 12 million of the “illegals,” the costs be damned.

The candidates’ solutions will require federal action, which is unlikely. So, what if you reside in a tony suburb and don’t like the way persons, mostly from Latin America, congregate at street corners seeking day work? One study has reported 75 percent of these persons are undocumented aliens. Can your local government adopt an ordinance prohibiting the solicitation of the work, thereby pushing the day laborers to another town or, better yet, back to their native countries?

The town of Oyster Bay in New York’s Nassau County tried. Earlier this month a federal district court permanently enjoined the enforcement of the ordinance on the grounds it violated the Free Speech rights of day laborers, Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 10-cv-2262, (EDNY Sept 3, 2015). The NYCLU represented the plaintiffs.

For nearly two decades persons seeking temporary employment gathered at two intersections in the town. Employers would approach in their vehicles, stop in the roads to talk to the persons, and hire some.  The talks could be extensive. On average 20-30 persons gathered. For many the temporary jobs were their sole means of support.

Residents of the town complained the gatherings were unsightly, caused traffic problems and consisted of “illegals.” The town board took note. In 2009, it adopted an ordinance barring a person from stopping or attempting to stop a vehicle “for the purpose of soliciting employment” while “standing within or adjacent to any public right-of-way.” Similarly, an operator of a vehicle could not stop to accept a solicitation of employment from a pedestrian.

The ordinance broadly defined solicitation. Examples included “waving arms,” “making hand signals,” “waving signs,” “jumping up and down” and “standing in the public right of way while facing vehicles in the roadway.”

In its decision, the district court went through a step-by-step analysis. First, it determined the ordinance regulated speech, not simply conduct. Not all stops of vehicles were prohibited; just stops which communicated a person’s availability for work.

Second, the communication was commercial speech – “speech which does no more than propose a commercial transaction.” While this conclusion may seem obvious, the NYCLU argued the speech was political.  The day laborers’ behavior conveyed “the message there are many workers in this country without the economic stability provided by secure jobs.”

While the statement about the job market may be true, the court did not find the political message to be primary in this case. The day laborers sought work, and “conversations relating to employment constitute commercial speech.”

The Supreme Court has articulated a four-prong test to assess the constitutionality of a law regulating commercial speech, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (1980).

The ordinance passed the first three prongs – (1) the speech concerned lawful activity and was not misleading, (2) the town had a substantial interest to be achieved by the regulation, to wit traffic safety, and (3) the harm of traffic congestion was real, as documented by the highway commissioner and a transportation engineer, and the ordinance would in fact alleviate the harm to a material degree.

On the first prong the town contended every hiring “was (so) suffused with unlawful conduct” the transactions were not protected speech. It cited income tax evasion and violations of immigration and workmen’s compensation laws. The court responded the prong only focuses on the content of the speech, not activities that may precede or follow the speech. The solicitation of employment is not in and of itself illegal.

Where the ordinance failed was in its “fit between ends and means,” the fourth prong, a fit which must be “close.”

Given the breadth of its definition of solicitation, the ordinance proscribed speech which did not pose a threat to safety on the streets and sidewalks. The court gave several examples – children selling lemonade at the end of a driveway, a veteran holding a sign “will work for food,” and students promoting a car wash.

The court observed that the ordinance did not contain a specific intent element or a requirement the stop or the attempt to stop actually resulted in traffic congestion. The ordinance applied to all streets in the town, not just the problem streets. The town could enforce existing, more-narrowly-drawn penal and vehicle and traffic laws if the day laborers posed a traffic hazard. That the town did not have its own police department was irrelevant.

For centuries, people have come to America, seeking the opportunity to work hard for a better quality of life. The day laborers are no exception. We should be celebrating their entrepreneurial spirit, not stigmatizing them.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or