Arizona Considering Barring Day Labor From Public Streets

The Arizona legislature is considering making it a crime to seek day labor work on a public street or nearby area. House Bill 2412 would make it a misdemeanor for anyone to be found "Standing or remaining on any public highway or public street or any property adjacent to any public highway or public street and disrupting vehicle or pedestrian traffic for the purpose of soliciting day labor employment." The Arizona House of Representatives passed the bill in March and sent it to the Arizona Senate. That body has thus far failed to pass it, but last week granted a motion to reconsider the bill.

The Senate should be mindful of the First Amendment. Seeking day labor work is communicative activity. Laws restricting it implicate the First Amendment. Legal challenges have been brought against a number of similar ordinances, including a few on behalf of day laborers. First amendment law is famously complex, and the validity of any particular restriction on expressive activity turns on a whole host of issues, such as whether the solicitation takes place in a “public forum,” and whether the ordinance is content neutral, is narrowly tailored to achieve a significant government purpose, and allows alternative channels of communication. The outcome of individual cases is difficult to predict.

Some solicitation ordinances have been upheld. For example, in Calderon v. City of Vista, Civil No. 06cv1443-L(LSP), 2006 U.S. Dist. LEXIS 54736 (S.D. Cal. 2006), a San Diego area federal court denied an application for temporary restraining order based on First Amendment against enforcement of a city ordinance that required employers of day laborers to register with the city.

But several other ordinances like the one now being considered in Arizona have been overturned in the courts. In Comite De Jornaleros De Rendondo Beach v. Redondo Beach, 475 F. Supp. 2d 952 (C.D. Cal. 2006) the federal court for the Los Angeles area overturned fines imposed on day laborers by the City of Redondo Beach, California. The court found that though the city's anti-solicitation ordinance was content-neutral, it was not narrowly tailored to address city's asserted interests, nor did it leave open ample alternative channels for speech. A similar result was reached in suburban Washington DC. In Town of Herndon v. Thomas, MI-2007-644, 2007 Va. Cir. LEXIS 161 (Circuit Court of Fairfax County, Virginia, August 29, 2007), a Virginia state court addressed the validity of a Herndon, Virginia ordinance that prohibited motorists and pedestrians from soliciting employment except at a temporary site. The court reasoned that, though the ordinance was content-neutral, nevertheless it violated the First Amendment because it did not provide for ample alternative channels of communication.

Arizona House Bill 2412 risks running into the same First Amendment thicket that caught these earlier ordinances. The Arizona state legislature should instead reflect on this country's rich history of allowing day laborers to hustle work on the street. As pointed out by Nels Anderson, a century ago day laborers were called "hobos," and were mostly native born. Arizona's proposed ban, if enforced, would only make it more difficult for workers and employers to find one another. Let's hope that, as summer temperatures rise in sunny Phoenix, cooler heads prevail.