Day laborers in Oyster Bay. Source: New York Times.

On Tuesday, the Second Circuit Court of Appeals ruled that the Town of Oyster Bay, New York’s prohibition on motor vehicle solicitation of employment violated the First Amendment.  The appellate court’s ruling affirms an earlier district court ruling that found similarly.  The plaintiffs in the case were two groups that advocate for the interests of day laborers.

Oyster Bay enacted an ordinance in 2009 that read, in relevant part, “It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.”  Oyster Bay’s ordinance was ostensibly an effort to curb day laborer solicitation.

Prior to any enforcement of the ordinance, in 2010, the plaintiff groups sued the town.  The district issued a temporary restraining order, and later, a preliminary injunction.  The Second Circuit affirmed that ruling in an earlier decision.  The town then moved for partial summary judgment on the grounds that the plaintiffs lacked standing, which was denied by the district court.  The district court granted a motion for summary judgment by the plaintiffs on the merits of the case.  The district court found that the plaintiffs had standing, and also that the ordinance violated the First Amendment because it was not narrowly tailored under the Central Hudson test.

On appeal, the Second Circuit affirmed.  The court first found that, although no enforcement action had been taken by the town, the plaintiffs had organizational standing.  The court reasoned that the organizations in question experienced injury because the ordinance in question adversely impacted the groups’ organizing, that the organizations would be forced to divert resources away from other initiatives in response to the ordinance, and that the organizations’ activists might be confused with day laborers.  The court also found that the organizations would experience imminent injury.

On the merits, the Second Circuit analyzed the ordinance as a regulation of commercial speech.  Following the approach taken by the U.S. Supreme Court in Sorrell v. IMS Health, the court found that the ordinance was a content based regulation of commercial speech, because it singled out employment-related speech, among other forms of commercial speech, for differential treatment.  The court found that the regulation did not target illegal activity—a position advocated by the town—because it could not be said that all day laborers work illegally.  The court also agreed that the town’s interests in motorist and pedestrian safety were substantial, as necessary to satisfy Central Hudson.  The court also conceded that the ordinance directly advanced those interests.

Ultimately, however, the court found that the regulation was not narrowly drawn.  Because the ordinance broadly prohibited employment-related speech, the court found that there was not a sufficiently narrow connection between the regulation and the town’s asserted interests in vehicle and pedestrian safety.

Notably, the Second Circuit also found that the plaintiffs’ overbreadth challenges were valid as against the town’s regulation of commercial speech.  The overbreadth doctrine, which allows a party to bring a facial First Amendment claim on behalf of another party, is typically not available in the context of commercial speech.  But the court determined that, because some of the plaintiff organizations’ noncommercial speech could be implicated by the regulation, an overbreadth challenge was available to the plaintiffs.

Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, ___ F.3d ___, 2017 WL 3596995 (2d Cir. Aug. 22, 2017).

Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.