Maryland AG Gives Thumbs Down to Soliciation Ban Aimed at Day Laborers

Last week the Maryland Attorney General issued an opinion that a Gaithersburg, MD prohibition on certain kinds of roadside solicitation is invalid.

A year ago Gaithersburg enacted an ordinance prohibiting pedestrians on the sidewalk or in the roadway from soliciting employment from automobiles. The city cited the risk of traffic accidents posed by day laborers hustling work from passing motorists. The state attorney general acknowledged these concerns, but believed that the city had gone too far toward addressing them.

One problem with the ordinance was that it was pre-empted by state law. The state of Maryland already regulates solicitations by pedestrians from standing in a roadway, intersection, or median divider. Further, the state legislature made clear its intention that these rules would be uniform state-wide, and not subject to patch-work ordinances by local governments.

The rest of the Gaithersburg ordinance-- prohibiting solicitation from vehicles, the sidewalk, and in parking areas-- was an invalid restriction on speech, in violation of the First Amendment to the federal constitution. The attorney general explained that public streets and sidewalks are a tradition public forum, where government regulation of speech is sharply circumscribed. Government may regulate speech in a public forum in a reasonable time, place and manner, without reference to the content of the speech, so long as the regulation is "narrowly tailored" to serve a significant government interest and leaves open alternative channels of communication.

The requirement that the ordinance be "narrowly tailored" is what tripped up Gaithersburg here. The city prohibited more speech than was necessary to protect against traffic accidents. The solicitation ban "would reach a day laborer standing on a public sidewalk, who signaled a driver to pull into an adjacent parking lot," and "an occupant of a vehicle that is legally parked, or stopped on a street with little traffic."

The opinion is certainly a victory for day laborers. But one cannot help but wonder whether even with this battle won, they might still lose the war. Cities intent on driving day laborers out of public view can be expected simply to recur to the attack. Little is stopping municipalities from making roadsides where day laborers congregate no stopping zones. Unless there is a nearby public parking area, or private lot owned by a sympathetic individual, day laborers may be hard pressed to land work with passing motorists. They can waive to them from the sidewalk, but unless the vehicle has a legal place to pull out of traffic, it's no work for day laborers.

Here's a link to the full opinion of the Maryland Attorney General. http://www.oag.state.md.us/Opinions/2008/93oag31.pdf