On September 16, a nine-judge majority of an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion in an important First Amendment case. (An en banc panel is a large panel of judges from a federal circuit court of appeals, convened to review the prior decision of a panel of three judges from that same court of appeals.)
The en banc panel held that it was unconstitutional for the City of Redondo Beach to ban people from standing on its streets and highways soliciting employment, business, or contributions from drivers or their passengers. The case arose because two organizations of day laborers challenged the constitutionality of the city’s ordinance.
On the eleven-judge en banc panel, there were only two dissenters: Chief Judge Alex Kozinski, and Judge Carlos Bea. In this column, I’ll consider both the opinions of the nine Ninth Circuit judges in the majority, and Chief Judge Kozinski’s dissenting opinion, which Judge Bea joined.
The En Banc Panel Majority’s Reasoning
The en banc panel’s majority held that the lion’s share of the ordinance’s applications violated the First Amendment, and thus that the ordinance could not survive a “facial challenge”: It was unconstitutional “on its face.”
In contrast to an as-applied challenge, which looks to whether a particular, real-life, past application of a law is unconstitutional, a facial challenge looks to whether the lion’s share of the possible applications of the statute would be unconstitutional.
Facial challenges address the concern that if a largely unconstitutional law is not struck down, lawful free speech may be “chilled,” because those who know of the law may stay silent, out of fear that the law may be enforced against them.
In this case, the en banc panel majority began by examining the Supreme Court’s precedents regarding content-neutral regulations. Content-neutral regulations do not target a speaker based on the ideas he is expressing.
The Supreme Court has previously held that when content-neutral regulations are at issue, the government may limit the time, place, and manner of expression if—and only if—the regulations are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”
(Judges M. Smith, Thomas, and Graber argued in their concurrence, however, that the ordinance was, in fact, content-based, and thus subject to a higher degree of scrutiny, for it targeted only speech on certain subject matters: Solicitation of work, business, or donations was forbidden, but other kinds of solicitation were not—such as political solicitation, or the solicitation of moral support for a protest.)
Here, the alleged “significant government interest” that Redondo Beach cited was an interest in improving traffic safety and traffic flow at two major intersections. However, the panel majority pointed out that this interest was not “narrowly tailored” and could be served by other means—means that did not involve suppressing speech, such as the enforcement of existing traffic laws and regulations.
Notably, in order to so hold, the en banc panel majority had to reckon with a 1986 precedent, also from the Ninth Circuit, which concerned an almost identical ordinance from Phoenix, Arizona. The en banc panel chose to overrule that precedent—on which Redondo Beach had relied in writing its own ordinance, years ago—to the extent that the precedent conflicted with its own decision.
The City’s Attempt to Save the Ordinance—And Why It Failed
Redondo Beach attempted to defend its ordinance in court, but in the end, its attempts were unavailing, and its arguments were weak. For instance, the City claimed—very implausibly—that it was regulating conduct, not speech, and thus that the First Amendment did not even apply. To be sure, selling, seeking work, and seeking donations are acts. But they are acts accomplished by speech. And where speech is implicated, so is the First Amendment. Indeed, the U.S Supreme Court has recognized a First Amendment category of speech, commercial speech, that could apply here, and has made clear that such speech enjoys at least some constitutional protection
Redondo Beach also claimed that the ordinance at issue only applied to those persons who actually caused motorists to stop in their traffic lanes. But the en banc panel majority was quick to point out that this supposed limitation was nowhere in the statute’s language.
The City then argued that, in practice, it only enforced the statute in instances where motorists were actually forced to stop. However, as the en banc panel majority noted, a court can’t simply rely on the government’s promises as to how a given ordinance will or won’t be applied in the future. Indeed, the very reason we have written law is so that our laws can be predictably enforced, and fairly evaluated. (Moreover, city governments benefit from clarity, too: Clear laws enable them to quickly get meritless cases against them dismissed.)
The City also lost some of the panel majority’s confidence, it seems, when its trial and appellate counsel made conflicting representations about how the ordinance would actually be enforced in practice. If even the City’s own lawyers are unsure about the ordinance’s applications, then it’s pretty much impossible for the City to credibly claim that its practice draws clear enough lines to satisfy the Constitution.
Why the En Banc Panel Did Not Deem the Ordinance, As Written, to Be Narrowly Tailored
Since the City’s attempts at convincing the en banc panel to look at the alleged narrowness of the application of the statute were unsuccessful, the panel assessed the ordinance as written, to see if it was sufficiently narrowly tailored.
However, the en banc panel majority concluded that the ordinance, as written, reached too far. In support of that point, the majority offered some examples—pointing out that the ordinance would reach kids selling lemonade in front of their own houses, Girl Scouts selling cookies outside their school, and schoolchildren yelling “Car wash!” at passing cars.
Of course, these are situations where enforcement would be very unlikely, but the en banc panel majority’s point is that First Amendment speakers deserve clear, fair prior notice as to what is, and is not, prohibited. People should not have to learn what the law actually means from hard experience, by having to pay a fine after receiving a citation.
The en banc panel majority pointed out several other ways, too, that the ordinance reached too far: While purportedly premised on traffic problems at only two intersections, the ordinance nevertheless reached the whole city. And by its language, the ordinance encompassed even legally-parked cars—when the City asserted that the concern behind the ordinance was unsnarling traffic jams.
Moreover, the panel majority held that the City already had on the books a set of traffic restrictions that, if enforced, could solve the very problems that the ordinance targeted. These ranged from an anti-jaywalking law, to a law against stopping a car in such a way as to obstruct the flow of traffic, to a law against pedestrians’ obstructing traffic flow.
Judge Gould’s Suggestion: A Day Laborer Solicitation Area
Judge Gould concurred in the judgment the en banc panel majority reached, but he also felt that the City of Redondo Beach had another alternative: It could, he contended, have “designated a permissible area for day laborer solicitation, in a convenient location for day laborers and potential employers alike.”
If the City had done so, Judge Gould suggested, then the Constitution would have been satisfied, for ample alternative channels of communication would then have existed. The City, too, seemed to accept this as its fallback position.
Judge Gould’s concern was that legal rules in the area were making it too hard on municipalities. However, others among the en banc panel majority believed that this solution was too hard on the people soliciting work—who, under Judge Gould’s solution, would now have only one area within Redondo Beach in which to legally contact potential employers.
Chief Judge Kozinski’s Very Strong Dissent
As I noted above, there was only one dissenting opinion here (written by Chief Judge Kozinski and joined by Judge Bea). But that dissent could hardly have been stronger. Chief Judge Kozinski begins by describing himself as “in deep dissent.” And the first sentence of his dissent is, “This is folly.” Later, Judge Kozinski states, “If I could dissent twice, I would.”
Early on in his dissent, Chief Judge Kozinski complains that, in addition to disrupting traffic, violations of the ordinance will also cause other problems: “As might be expected when large groups of men gather at a single location,” he writes, “they litter, vandalize, urinate, block the sidewalk, harass females and damage property.”
Chief Judge Kozinski also points out that while the City argued that point, the rest of the en banc panel ignored these arguments. But the reason nine other judges did not see fit to address these arguments is likely that there is no way that these objectives fit the narrow-tailoring requirement: The way to stop littering, vandalism, and the rest of the ills Kozinski and the City cite is to enforce existing laws against them.
(By comparison, although the Tea Party and “Occupy New York” protests have doubtless generated litter, it would surely violate the First Amendment to shut them down permanently for that reason.)
In addition, Judge Kozinski contends that—as the City argued—it is sufficient that day laborers can congregate at one of Southern California’s six day laborer centers, with travel there being only minimally inconvenient. However, Judge M. Smith (joined by Judge Thomas) asserts that none of the centers “is located anywhere near Redondo Beach.”
Moreover, in response to Chief Judge Kozinski’s claim that traveling to the centers would be minimally inconvenient, Judge Smith replies—only partly humorously, I think—that “traveling in Southern California is rarely, if ever, minimally inconvenient.”
Chief Judge Kozinski also suggests that day laborers can and do use Craigslist to advertise their services.
Professor Michael Dorf, my fellow columnist at Justia’s Verdict, offered one interesting explanation on his blog, Dorf on Law, as to why Chief Judge Kozinski’s dissent was so strong: Californians, Dorf noted, feel that their cars are their castles. Thus, Dorf suggests that “Chief Judge Kozinski, as a longtime resident of Southern California, regards a car as a private space in which people need protection from intrusion.”
I agree with Professor Dorf that California car culture is playing a large role here. It’s nerve-wracking for California drivers to have to watch out—during their daily commutes—for people who dart out among stopped cars to sell flowers, water bottles, or the like; to seek or accept work; or to beg for money. But I think class issues are playing a role here, too. I don’t mean to claim that Chief Judge Kozinski is biased against the poor; what I am saying is that if he had taken into account the far greater difficulties of the lives of the poor, he might have reached a different conclusion.
As it is, Chief Judge Kozinski is talking about the poor without saying so. Thus, when he writes, “As might be expected when large groups of men gather at a single location, they litter, vandalize, urinate, block the sidewalk, harass females and damage property,” I believe that he really means “poor men.”
After all, when large groups of rich men gather at a single location to sell, solicit business, or seek charitable donations, it’s at a country club, political fundraiser, or alumni association, and typically public urination, vandalism, and catcalls are not involved.
In addition, Chief Judge Kozinski seems to think that the same workers who are desperate enough financially to stand in the hot sun hoping that a stranger in a passing car will pick them up, can also easily afford the gas needed to travel to a day laborer center seeking work, day after day. Yet for the poor, cars and trucks may be unreliable, shared, or nonexistent.
Similarly, Chief Judge Kozinski’s Craigslist suggestion ignores many poor people’s lack of computer access—except perhaps via a faraway library, travel to which requires both a car and money to fill its tank.
In light of these considerations, Judge Gould’s suggestion—of establishing a day laborer center within Redondo Beach itself—starts looking much more attractive, from a practical point of view, than Chief Judge Kozinski’s suggestion that day laborers should avail themselves of day-laborer centers that are not in their own hometown, or else use the Internet to find work.
This may also be a solution that day laborers could support, for it would eliminate the risk of their having to walk through stop-and-go traffic to get into the car or truck of the person who is hiring them.
However annoyed drivers may be by having to avoid day laborers, beggars, and others who are walking through stop-and-go traffic at intersections, it is those on foot who are, by far, the most at risk—and it would make sense for society to pass measures to protect, not restrict, them.