ON POINT: Courts should not tolerate 'immigrant bashing'

By Scott Forsyth

The Daily Record Newswire

Last year Arizona passed a sweeping and obnoxious law targeting undocumented aliens, "illegal immigrants," within the state. The Obama administration brought suit and a federal district court struck down most of the law.

Civil rights groups, including the ACLU, commenced a parallel lawsuit. Last month they moved to invalidate two more provisions of the law, provisions that criminalize the solicitation of work by day laborers.

Day laborers stand in the road or on the sidewalk facing vehicles, usually holding signs, expressing their availability for employment. Generations of unemployed workers have done this but recently politicians have viewed the practice with disfavor. Maybe the problem is not the practice but the ethnicity of the solicitors, who are predominately Latino.

New York is not immune to this response. In 2009, before Arizona adopted its law, the Town of Oyster Bay on Long Island made it "unlawful for any person standing within or adjacent to any public right-of-way" "to stop or attempt to stop any motor vehicle" "for the purpose of soliciting employment of any kind."

The town took this action in the name of traffic safety. However, it could not cite a single accident caused by day laborers. It then excluded persons soliciting on behalf of charitable organizations and political campaigns and persons hailing taxicabs.

Two Latino advocacy groups, with the assistance of the ACLU, contended that the ordinance violated the free speech rights of day laborers and brought suit. Last June, a federal district court concurred and enjoined the town from enforcing the ordinance. The town has appealed.

The town argues that day laborers are merely proposing a commercial transaction, a form of commercial speech. In the Second Circuit, government may disfavor one category of commercial speech over another "where it has valid reasons for doing so," Clear Channel Outdoor Inc. v. City of New York, 594 F.3d 94 (2nd Cir. 2010). Traffic safety is such a reason.

The ACLU counters that, while traffic safety is an important government interest, the town did not demonstrate that the ordinance "directly advances" the interest and that the ordinance "is not more extensive than is necessary to serve the interest." These are two parts of the four-part test of the constitutionality of a regulation of commercial speech, Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557 (1980).

The ordinance sweeps too broadly, criminalizing speech that poses no threat to traffic. For example, a high school team cannot solicit cars for a carwash fundraiser.

The town has available less restrictive alternatives to protect traffic and pedestrians. It can enforce the many sections of the Vehicle and Traffic Law and Penal Law on the subject.

Finally, the ordinance only targets solicitation of work, not all street-side solicitation, and exempts certain solicitation of work. These exceptions diminish the credibility of the town's rationale.

The district court agreed with the ACLU and did not address the ACLU's argument that the ordinance really regulates political speech.

When day laborers congregate in public forums, they are sending a message that they are willing to work and be self-sufficient and to contribute to the economic well-being of the country. They make this statement during a national controversy about their right to be in the country and seek employment.

The message of day laborers is no different from the message of union picketers, who are available for work if afforded fair working conditions, and beggars, who communicate a need for support in a land of plenty. Both picketing and begging are protected political activities, see Thornhill v. Alabama, 310 U.S. 88 (1940) (picketing) and Lopez v. New York City Police Dept., 999 F.2d 699 (2nd Cir. 1993) (begging).

Since the ordinance only prohibits solicitation of work and not other forms of solicitation, it is a content-based regulation. Content-based regulations of political speech trigger strict scrutiny. In the view of the ACLU the ordinance fails this test too.

Be sure to follow the two cases counseled by the ACLU. The courts will have to dampen the immigrant bashing exemplified by the bans on solicitation of work by day laborers. We cannot rely on our legislatures.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Fri, Feb 25, 2011