Second Circuit Agrees: An Ordinance Against Road-Side Work Solicitation Violates First Amendment

 

By Marie Claire O’Leary

On a morning in September 2009 protestors with bilingual signs that said things like “Workers are not Criminals,” and “I Prefer to Feed my Family than Pay a Fine” filled the main street of Oyster Bay, NY. [1]  Several months before the town had enacted the “Solicitation from Streets and Sidewalks Prohibited” Ordinance, targeting Latino day laborers who solicited work on the roadsides.[2]  The Ordinance stated:

It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.[3]

 

A legal battle began in May 2010 when the New York Civil Liberties Union filed a lawsuit on behalf of two Long Island organizations that work to support and protect Latino day laborers, Centro de la Comunidad Hispana de Locust Valley (“Centro”) and the Workplace Project.[4]  The lawsuit finally came to a close on August 22, 2017 when the majority of the Second Circuit panel affirmed lower court rulings in support of Centro’s argument that the Ordinance violated the First Amendment.[5]  On appeal, Oyster Bay’s main argument was that Centro did not have standing to bring the suit because it is an interest group attempting to voice the generalized grievances of day laborers and not a concrete imminent harm.[6]  However, the Second Circuit rejected the Town’s argument because Centro proved that the Ordinance would prevent it from its main mission of organizing day laborers.[7]  Turning to Centro’s First Amendment allegations, the Ordinance was unconstitutional because it was overly broad and restricted commercial speech regarding lawful activities.[8]

For almost twenty-years, day laborers have sought work in Oyster Bay, but the Ordinance criminalized both employment solicitation by workers and employee solicitation by drivers.[9]  The Ordinance punished hand waving with up to $250 in fines, which immigrant advocates argued was a punishment for “waving while Latino.”[10]  Many Latino day laborers in the Oyster Bay area depend on temporary construction jobs to live and feed their families.[11]  After passing the Ordinance, Oyster Bay officials never demonstrated why it was necessary and there were no instances of traffic accidents that had occurred because of a day laborer soliciting work.[12]

Although the Second Circuit’s ruling in favor of Centro was a victory for the Latino day laborers in Oyster Bay as well as day laborers across the U.S., the future of immigrant labor in the U.S. is still in question.  At the beginning of August 2017, President Trump publicly supported an immigration plan from Republican Senators David Perdue (R-GA) and Tom Cotton (R-AR) that would implement a massive overhaul of the current immigration system.[13]  The legislation is called the “Reforming American Immigration for a Strong Economy Act,” (“Act”) and would aim to restore immigration levels to historical norms and gear the immigration system primarily towards employment-based visas.[14]  The Act aims to stop chain migration and would grade new immigrants based on their median salary, their schooling, their English language ability, and whether they could provide skills needed by the US economy.[15]  Essentially, the Act seeks to limit “de-skilled” workers from entering the country.[16]  However, as the Oyster Bay day laborers demonstrated, day laborers provide important services to business and homeowners, and the country would surely suffer in their absence.

1 Robin Finn, Town Divides Over Law Aimed at Day Laborers, N.Y. Times (Dec. 24, 2009), http://www.nytimes.com/2009/12/27/nyregion/27immig.html.

[2] Centro de la Comunidad Hispana v. Town of Oyster Bay (Challenging Constitutionality of Anti-Immigrant Ordinance), New York Civil Liberties Union: Court Filings, https://www.nyclu.org/en/cases/centro-de-la-comunidad-hispana-v-town-oyster-bay-challenging-constitutionality-anti-immigrant (last visited Aug. 22, 2017) [hereinafter NYCLU: Court Filings].

3 Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay, No. 15-2914-cv, 2017 U.S. App. LEXIS 15935, at *1 (2d Cir. Aug. 22, 2017).

4 Centro, 2017 U.S. App. LEXIS 15935, at *4.

5 Id. at *1.

6 Id. at *6.

7 Id. at *8.

8 Id. at *13.

9 NYCLU: Court Filings, supra note 2.

10 Finn, supra note 1.

11 NYCLU: Court Filings, supra note 2.

12 Id.

13 Sara Murray and Dan Merica, Trump Backs Plan that Would Curb Legal Immigration, CNN: Politics (Aug. 2, 2017, 9:53 PM), http://www.cnn.com/2017/08/02/politics/trump-skills-immigration-plan-cotton-perdue/index.html.

14 Id.

15 Id.

[16] Id.

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