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Solicitation of Employment is First Amendment Speech

In 2009, the Town of Oyster Bay in New York passed a law prohibiting people from soliciting employment along roadways within the Town.  Two public interest groups sued the Town alleging that the law violated the First Amendment’s protection of free speech.  On August 22, 2017, the Second Circuit Court of Appeals upheld the trial court’s determination that the law violates the First Amendment.  Today’s New York civil rights blog discusses the case Centro de la Comunidad Hispana de Locust Valley v. Oyster Bay.

First Amendment Free Speech

The First Amendment prohibits the government from passing laws which restrict speech based on the content of the speech.  For example, a law which generally allows picketing unless the picketing is aimed at a particular type of labor dispute has been declared unconstitutional.  In Centro, the Second Circuit found that Oyster Bay’s law unlawfully regulated content based speech because the government would have to assess what the speaker was saying to determine whether the person was violating the law.  In other words, as described by the Court, Oyster Bay would have to look at whether the person was stopping vehicles and saying “hire me” verse “tell me the time.”  Thus, the Court had no problem finding that Oyster Bay’s law restricted content-based speech.

Commercial Speech is Less Protected Than Other Speech

Constitutional scholars can write lengthy articles about the different kinds of protections the Constitution gives to different types of speech.  For purposes of today’s blog, it is sufficient to say that the Constitution gives very high protections to citizens who exercise the Constitution’s most fundamental rights.  For example, a citizen who speaks about his or her political beliefs receives the highest level of Constitutional protection, called strict scrutiny.

The speech in Centro, however, concerned employment, which the Court determined constitutes “commercial speech.”  The Constitution gives less protections to commercial speech and it is only protected by “intermediate scrutiny.”  Under intermediate scrutiny, courts look at whether (1) the law restricts speech that concerns lawful activity; (2) the government has a substantial interest; (3) the law is connected to that interest; and (4) the law is not any more extensive than necessary to meet that government interest.

In Centro, the Court determined that asking for employment is a lawful activity.  The Court also had little difficulty in finding that the Town’s interest in protecting the safety and welfare of motorists and pedestrians was substantial and that the law furthered that interest.

The last element of intermediate scrutiny is whether the law was “narrowly drawn to further the interests served.”  The Second Circuit agreed with the trial court and found that Oyster Bay failed to establish this element.

First, the Court determined that there are many ways a person could solicit employment which don’t threaten public safety along roadways and so, the law was overbroad.  As examples, the Court noted the law made it illegal for children to sell lemonade on a driveway, the law would prohibit a veteran from holding a sign on the sidewalk saying “will work for food,” and it would prevent students from advertising a school car wash on the side of a road.

The Court further noted that there were many other ways to draft the law such that it would not violate the First Amendment, even citing similar laws passed by Oyster Bay which are constitutional.

In sum, the Centro case invalidated the Oyster Bay employment solicitation law because it impermissibly regulated free speech and thus violated the Constitution’s First Amendment.

Long Island First Amendment Lawyers

If you have questions about the Centro case, or about First Amendment free speech or other rights, contact the Long Island First Amendment lawyers of Famighetti & Weinick, PLLC.  Our lawyers are available on the web at http://linycemploymentlaw.com or at 631-352-0050.

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