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September 20, 2011

A Redondo Beach, Calif., ordinance barring people from standing on streets or highways to solicit work, business, or contributions from motor vehicle occupants violates the First Amendment right to free speech, the U.S. Court of Appeals for the Ninth Circuit held 9-2 in a Sept. 16 ruling (Comite de Jornaleros de Redondo Beach v. Redondo Beach, 9th Cir. (en banc), No. 06-55750, 9/16/11).

The appeals court affirmed a federal district court’s grant of summary judgment to day laborer associations Comite de Jornaleros de Redondo Beach and National Day Laborer Organizing Network on their facial constitutional challenge to the ordinance. The district court in April 2006 enjoined the city’s enforcement of the ordinance.

The city failed to tailor the law narrowly to achieve its goal of improving traffic flow and safety at two major intersections without reaching a significant amount of non-problematic speech, such as Girl Scouts selling cookies and people seeking disaster relief fund donations, Judge Milan D. Smith wrote for the Ninth Circuit majority. The city had less restrictive alternatives, including the enforcement of already existing traffic laws, the court found.

The Ninth Circuit reheard the case en banc after an appellate panel in June 2010 reversed 2-1 the district court’s judgment. The full appeals court overruled its decision in ACORN v. Phoenix, 798 F.2d 1260 (9th Cir. 1986)—which upheld a Phoenix ordinance that prohibited people from standing on a street or highway to solicit, or attempt to solicit, employment, business, or contributions from the occupants of any vehicle—only to the extent it is inconsistent with the en banc ruling.

Smith wrote a special concurrence in which he reasoned that the ordinance also is unconstitutional because it is a content-based restriction on speech that does not survive strict scrutiny and, in any case, does not leave open ample alternative channels for day laborers to engage in their protected speech.

Judge Sidney R. Thomas joined the special concurrence, while Judge Susan P. Graber joined as to the content-based speech restriction finding. Judge Ronald M. Gould also wrote a short separate concurrence, stating that he would find the ordinance constitutional if the city designated a permissible area for day laborer solicitation.

In a strongly worded dissent, Judge Alex Kozinski expressed serious doubt that the ordinance regulates speech as opposed to conduct. He argued that the law makes no content-based distinctions and can be construed “quite sensibly to exclude all legitimate overbreadth concerns.” Judge Carlos T. Bea joined in the dissent. 09-19-2011. Bureau of National Affairs.