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Day Laborers Have First Amendment Right to Solicit Work: 9th Cir.

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By Stephanie Rabiner, Esq. on September 21, 2011 1:31 PM

A challenge to Redondo Beach, Calif.'s day laborer law has left the validity of more than 50 local anti-solicitation ordinances in question.

Day laborer laws banning the solicitation of employment on roadways and sidewalks may violate the First Amendment, according to a new ruling from the 9th Circuit.

Even if the goal is to promote traffic flow and safety.

Redondo Beach's day laborer law bans "stand[ing] on a street or highway and solicit[ing]...employment, business, or contributions from an occupant of any motor vehicle."

The definition of "street or highway" includes sidewalks and alleys.

Because roads and sidewalks are traditional public forums, day laborer laws are subject to strict scrutiny. They must therefore be "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."

The court found that Redondo Beach's ordinance is not narrowly tailored, as it regulates substantially more speech than necessary.

First, the City's goal was to improve traffic safety at two major intersections. The ordinance bans solicitation citywide.

And second, the day laborer law prohibits an overwhelming amount of activity. It can be applied to lemonade stands, Girl Scouts, leafleting, and motorists on residential streets.

Though this ordinance is unconstitutional, the ruling does not mean that all anti-solicitation ordinances are similarly invalid.

Instead, a day laborer law that punishes only the actual disruption of traffic may be constitutional. The same goes for a law that prohibits solicitation only at problem intersections.

Essentially, day laborer laws that hone in on disruptive behavior are less likely to violate the First Amendment.

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