Many of the essays posted on Verdict deal with Supreme Court cases; in today’s column I focus on an opinion issued by a court at the base, rather than the pinnacle, of the federal judicial system—this month’s ruling by a federal district court in Arizona disposing of residual challenges brought against Arizona’s SB 1070 statute, the statute passed in 2010 attempting to deal with immigration stresses in the state, parts of which were struck down two years later by the Supreme Court in Arizona v. United States.
Two key parts of SB 1070 were undiminished by the Supreme Court’s 2012 ruling. One is the so-called “Show Me Your Papers” (SMYP) provision, which requires state law enforcement agents to make a “reasonable attempt . . . to determine the immigration status” of any person they lawfully detain “if reasonable suspicion exists [as to whether] the person is an alien and is unlawfully present in the United States.” The other is a pair of provisions comprising the “Day Laborer” portion of SB 1070. One provision makes it unlawful “for an occupant of a motor vehicle that is stopped on the street [in such a way as to impede traffic] to “attempt to hire or hire and pick up passengers for work at a different location.” And the companion provision makes it unlawful “for a person to enter a motor vehicle that is stopped on the street [in such a way as to impede traffic] . . . in order to be hired by the occupant of the vehicle and to be transported to work at a different location . . . .”
Both of these parts of SB 1070 were challenged as unconstitutional in Valle Del Sol v. Whiting, and three weeks ago federal District Court Judge Susan Bolton issued a ruling on both. As to the challenge to the “Show Me Your Papers” provision, she ruled against the challengers and for the State of Arizona on plaintiffs’ equal protection argument. And with respect to the attack on the Day Laborer provisions, Judge Bolton ruled in the plaintiffs’ favor, concluding that these provisions violate First Amendment guarantees of free speech.
In my view, the district court’s reasoning on both of these claims was confused and unpersuasive, and that the results probably should have been inverted—the equal protection challenge to the SMYP provision should have survived, and the First Amendment claim concerning the Day Laborer provisions should have been rejected.
Equal Protection Challenge to “Show Me Your Papers”
The plaintiffs alleged that this provision was motivated by a constitutionally impermissible purpose to harm ethnic minorities, including Latina(o)s. The judge rejected this claim, holding that even if there were strong evidence of anti-Latina(o) motive, the provision cannot be successfully challenged until the plaintiffs also demonstrate that “state law enforcement officials will enforce the law differently for Latinos” than others. The court’s reasoning was that the goal of the Equal Protection Clause is to ensure that similarly situated people are not treated differently, and that this goal isn’t implicated unless and until plaintiffs show that the enforcement of the law will be done differently for people of some races than others.
But the court misunderstood what is required in equal protection challenges where impermissible motive is alleged. In such cases, the Supreme Court has made clear in Washington v. Davis and elsewhere, so long as the statute will have an unequal, or disparate, effects across different racial groups, it can be successfully challenged if there is a showing of impermissible motive. That is true even if the law is applied by executive officials the same way to people of all races.
Consider a law that punishes use of one drug (Drug A) more harshly than use of another drug (Drug B). Assume that this differential punishment regime is adopted precisely because most of the people who use Drug A are racial minorities, and most of the people who use Drug B are white, and the legislature has the actual goal of imprisoning minorities as much as possible. In such an instance, even if the police arrest and seek to imprison all persons who use Drug A (and thus are enforcing the ban on Drug A in a way that treats Drug A-users of all races equally harshly), the fact that the high punishment for using Drug A was enacted to harm minorities, coupled with the fact that the effect of a “neutral” enforcement of the law will burden a higher percentage of minorities than non-minorities, renders the law unconstitutional.
The district court seemed not to apply this basic “disparate impact plus invidious motive” body of law, confusing the overall goal of the Equal Protection Clause (equal treatment) with the specific doctrinal elements the Supreme Court has identified as being sufficient to state a claim when invidious motive can be established. When a statute is improperly motivated and has a disparate effect (even if the statute is enforced neutrally—that is, without selective racial enforcement), the statute does in a very real sense treat similarly situated people differently, in that one group suffers harm because of an improper motive while another group equally deserving of punishment is spared the burden.
None of this is to say the plaintiffs’ challenge to the SMYP provisions of SB 1070 will or should succeed; almost all invidious motive claims founder at the point of adducing adequate proof of improper government purpose. Courts bend over backwards to avoid finding that legislatures have enacted facially neutral laws for racist reasons, and the proof of anti-Latina(o) motive behind SB 1070 may not be sufficient. But the district court was unconvincing in dismissing the claim on the ground that the effect of the law was not disparate enough—the fact that almost 70 percent of foreign-born Arizona residents are Latina(o) and over 90 percent of undocumented immigrants in the state are from Mexico, combined with the fact that only 30 percent of the state’s residents overall are Latina(o), mean that innocent Latina(o)s are much more likely than innocent non-Latina(o)s to be questioned about their immigration status.
The Day Laborer Provision and the First Amendment
As noted earlier, the district court ruled the other way—siding with the plaintiffs—on the First Amendment challenge to the Day Laborer provisions. Ironically, the problem with the court’s analysis (and embrace) of the First Amendment challenge is that the court essentially accepted a disparate impact analysis where the guiding Supreme Court doctrine seems not to be concerned with disparate impacts. The district court (and the Ninth Circuit too, for that matter, since this part of the case ping-ponged between the two courts over recent years and the district judge was taking her cue from a 2013 Ninth Circuit decision) ruled that the Day Laborer provisions violate the First Amendment because they discriminate against commercial speech—the solicitation of work and offers to hire—without adequate justification. Relying on a Supreme Court case called Central Hudson Gas & Electric v. Public Service Commission, the district court and Ninth Circuit required Arizona to justify the Day Laborer provisions by establishing that there weren’t other ways of coping with the traffic congestion caused by the hiring of day laborers from vehicles. In more doctrinal terms, the courts found the Day Laborer provisions to be inadequately “tailored” with respect to the state’s ostensible goal of orderly street traffic.
But all of this begs the question whether these parts of SB 1070 should be subject to a narrow tailoring requirement in the first place. Laws that single out speech because of its content are indeed subject to a meaningful level of judicial scrutiny, which requires some precision in the fit between the government’s means and ends. For example, in Central Hudson itself, the law in question prohibited the advertising of energy services by utilities. That law targeted certain speech—advertising—because of its content.
But, on their face, the Day Laborer provisions of SB 1070 don’t target any kind of speech; they target conduct—letting someone in your vehicle or getting into someone else’s vehicle for the purpose of creating a contract. Entering into a vehicle is conduct. And entering into a business relationship is also conduct, not speech, even though it may incidentally involve speech. For example, in a recent case involving whether law schools could be required to permit military recruiters on campus to interview job candidates, the Supreme Court unanimously rejected a First Amendment challenge, observing that permitting access of recruiters was conduct, not speech. So too here, the provisions of SB 1070 do not prohibit people in cars from talking on the phone or among existing passengers about the need to hire workers or the terms on which workers should be hired; the provisions simply prohibit the transaction, or attempted transaction, of business in stopped cars.
If a city were to pass a zoning law that prohibits anybody from selling, or attempting to sell, industrial products from their dwelling in a particular neighborhood, nobody would think the law should be subject to meaningful scrutiny on the ground that it, in effect, shuts down commercial speech incident to potential sales. Instead, we would ask only whether the law were minimally reasonable, and if it were, the fit between means and ends would not need to be super tight.
What about the fact that a law that prohibits hiring day laborers from vehicles has a disparate adverse impact on certain kinds of speech—speech between day laborers and potential employers concerning day-laborer employment? The short answer is that, unlike in equal protection cases, the Supreme Court has not generally allowed plaintiffs to inquire into possibly censorial motives behind laws that regulate conduct and mount serious First Amendment challenges (that is, those that require a tight fit between means and ends) based on these laws’ effects on speech; instead, ordinarily a law must target expressive activity on its face to implicate rigorous First Amendment scrutiny.
It is rather surprising that this speech-conduct distinction—which figures prominently in First Amendment case law—was hardly discussed by either the district court or the Ninth Circuit in the SB 1070 day laborer dispute. At one point the Ninth Circuit, in a cursory footnote, rejected the idea that SB 1070 targeted economic activity rather than speech, pointing out that the statute regulates not just hiring people but “attempt[ing]” to hire them as well, and that “attempts” to hire people take the form of negotiations—speech. Putting aside for the moment whether attempted hiring can be distinguished from actual hiring (which is clearly conduct), the Ninth Circuit never even acknowledged that one of the two provisions of SB 1070 it was calling into question—the provision that applied to the laborers rather than the employers—made no mention of attempted hires, but instead simply prohibited the entry into a stopped vehicle in order to be hired. And in any event, if laws regulating attempted economic activity were subject to meaningful scrutiny because such activity takes the form of expression, then many, many laws would be struck down. (It should be noted that actual hiring also takes the form of expression, and yet no one thinks that government can’t regulate hiring practices unless there is a tight fit between means and ends.)
At the end of the day, my sense is that the lower courts in these recent SB 1070 rulings misinterpreted basic Fourteenth and First Amendment doctrine. (I do note that if plaintiffs challenged the Day Laborer provisions based on equal protection, asserting that the Day Laborer part, like the SMYP provision, was intended to hurt Latina(o)s in particular, then that claim would be coherent—assuming that there were adequate proof of bad motive—since the effect of these Day Laborer provisions surely falls harder on Latina(o)s than on other racial groups in Arizona.)
Whether ultimately the Supreme Court will be asked—and choose—to review these SB 1070 disputes down the road I do not know. I do know that in many instances, the district courts and the courts of appeals are in practice the last, best chance to properly apply constitutional doctrine, and it’s somewhat concerning when doctrine gets applied seemingly without full understanding of all the issues involved.