WLF Legal Opinion Letter
First Amendment Implications Of Arizona Immigration Law
By Calli Bailey
December 17, 2010 (Vol. 19 No. 28)
Arizona Senate Bill 1070, the "Support Our Law Enforcement and Safe Neighborhoods Act," moved immigration law to the forefront of national debate. Soon after the bill passed in April, the U.S. government and civil liberties groups filed legal challenges focused mostly on federal preemption grounds. On July 28, Judge Susan Bolton ruled that federal law preempts parts of the Arizona law. U.S. v. State of Arizona, No. CV 10-1413-PHX-SRB (D. Ariz.), available at http://www.scribd.com/doc/34998325/U-S-v-Arizona-Order-on-Motion-for-Preliminary-Injunction. But the struggle between federal control and state and local involvement in immigration enforcement is not the only legal issue surrounding Arizona's renewed effort to crack down on illegal immigration within its borders. One overlooked issue, which only the American Civil Liberties Union raised in court and which the District Court referenced only briefly, is the law's First Amendment implications.
Section 13-2928(A) and (B) of S.B. 1070 make it unlawful for an occupant in a motor vehicle and a person outside the vehicle to engage in solicitation--where one party hires and the other seeks to be hired for work--while the vehicle is idling on a street, roadway, or highway. These provisions specifically prohibit this conduct if such solicitation "blocks or impedes the normal movement of traffic." The categories of communication that are subject to regulation under the Arizona provisions are very broad and were not purposely created to target a specific kind of speech. The Arizona provisions reflect the State's legitimate interest in the flow of traffic and the safety of persons on or near the roadways.
It has long been understood that a government can regulate an individual's ability to exercise free speech. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Where the government seeks to regulate speech based on its content, the regulation must "serve a compelling state interest and [be] narrowly drawn to achieve that end," in order to withstand judicial review. See Crawford v. Lungren, 96 F.3d 380, 384 (9th Cir. 1996). On the other hand, where a government seeks to regulate speech regardless of its content, the government may "impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'" Ward, 491 U.S. at 791.
Governments have a significant interest in "the safety and convenience of the people in the use of public highways," and therefore, regulation of such areas has become a "traditional exercise of control by local government." Cox v. State of New Hampshire, 312 U.S. 569, 574 (1941). The Ninth Circuit has summarized this interest in the context of the First Amendment and has found that "[t]o conclude that streets may generally be categorized as traditional public fora may not require us to also conclude that the streets at all times and under all circumstances are susceptible to characterization as a perpetual public forum uniquely available for free expression." ACORN v. City of Phoenix, 798 F.2d 1260, 1266-67 (9th Cir. 1986). Instead, "such areas are not designated as forums for public communication while in use by vehicular traffic." Id. (emphasis in original). This is because while "[a] pedestrian ordinarily has an entitlement to be present upon the sidewalk or on the grounds of a park and thus is generally free at all times to engage in expression and public discourse at such locations," the same is "not true of streets continually filled with pulsing vehicle traffic." Id.
Regulations that restrict the act of solicitation--an act often occurring on or near roadways--are inherently "content-neutral," according to the Supreme Court, and therefore, "undoubtedly subject to reasonable regulation." Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980); see also United States v. Kokinda, 497 U.S. 720, 736 (1990); Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 648-49 (1981). As is true for government regulation of solicitation, "[t]he Government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word." Texas v. Johnson, 491 U.S. 397, 406 (1989). Solicitation, a form of "expressive conduct," although protected by the First Amendment and often occurring in a traditional public forum, can be regulated by the government so long as the regulation satisfies the reasonable "time, place, or manner" test applied in Ward v. Rock Against Racism. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178, 1184-93 (9th Cir. 2010).
Section 13-2928(A) and (B) of S.B. 1070 are directly aimed at conduct which impedes the flow of traffic and puts the safety of pedestrians and other near the roadway in jeopardy--conduct characterized by "in-person demands requiring an immediate response" from vehicle occupants. See Comite, at *9. As the Supreme Court has consistently stated, a regulation need not be the least restrictive alternative available, as long as it does not sweep too broadly. See Ward, 491 U.S. at 798-800.
Sections (A) and (B) leave open alternative avenues of communication--including solicitation by written or oral word, on the sidewalks between pedestrians, in parking lots, or other areas where a vehicle may come to a valid stop, or by phone, mail, and publication. That the provisions leave open these avenues of communication is proof alone that the State of Arizona carefully sought to narrowly tailor its provisions to only that conduct in which it had a significant governmental interest in regulating. The provisions merely implement a minor place and manner restriction on the act of solicitation itself.
The District Court addressed the First Amendment implications of Sections (A) and (B) in a footnote to its discussion of Section 13-2928(C), writing, "The Court finds that the June 9, 2010, decision of the Ninth Circuit Court of Appeals in a case contesting a virtually identical local ordinance in Redondo Beach, California forecloses a challenge to A.R.S. secs. 13-2928 (A) and (B) on First Amendment grounds." U.S. v. Arizona, slip op. at 23-24, n. 16. Judge Bolton cited to the Comite ruling for support for this statement. The First Amendment issues are thus still alive in the District Court but were not included in the now-pending appeal to the Ninth Circuit.
The District Court's reasoning on Sections (A) and (B) with regards to the First Amendment should withstand any future appeals. That the State of Arizona has found that this form of solicitation is often conducted by illegal immigrants does not affect the Bill's constitutionality. Instead, it simply adds an additional provision to the regulation of solicitation, and combines regulation of such acts with the regulation of the State's employment industry. Arizona's effort to combat this problem has not targeted a specific type of speech, the provisions are narrowly tailored to serve the State's legitimate interest in public safety on the roadways and regulation of the employment industry, and they leave open numerous other alternatives to seek employment in a legal manner, without impeding the flow of traffic and the safety of those on or near the roadways.
Calli Bailey, a 2010 Judge K.K. Legett Fellow at Washington Legal Foundation, is a third year law student at Texas Tech University.