Centro De La Comunidad His-pana De Locust Valley v. Town of Oyster Bay
128 F. Supp. 3d 597
E.D.N.Y2015Background
- In 2009 the Town of Oyster Bay enacted an ordinance (Ch. 205-32) banning persons standing within or adjacent to public rights-of-way from stopping or attempting to stop motor vehicles to solicit or be offered employment; drivers are similarly barred from stopping to solicit or accept offers of employment.
- The ordinance defines “solicit” very broadly (requests, offers, enticements; examples include waving, shouting, standing facing vehicles, approaching vehicles) and treats a solicitation as complete when made.
- Plaintiffs Centro de la Comunidad Hispana de Locust Valley and Workplace sued the Town and its Supervisor seeking a permanent injunction, alleging First Amendment (and other) violations; the Town has not enforced the ordinance because of preliminary injunctions and delays.
- The ordinance was adopted in response to recurring day‑labor “shape‑up” gatherings on Forest Avenue in Locust Valley, where Town officials and residents reported traffic and pedestrian-safety problems caused by large groups of day laborers and drivers stopping to hire.
- The Town defended the law as a content‑neutral safety measure and argued the speech is commercial or unlawful; Plaintiffs argued the ordinance is content‑based and overbroad and thus violates the First Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ordinance regulates speech or only conduct | Ordinance regulates communicative conduct (solicitation) and thus speech | Ordinance targets conduct (stopping vehicles) not speech | Court: regulates speech and expressive conduct (not merely nonexpressive conduct) |
| Whether the speech is protected commercial or unprotected unlawful speech | Solicitation of employment is commercial speech entitled to protection | Speech is commercial and may be tied to illegal activity (tax, immigration violations) so not protected | Court: solicitation is commercial speech and not inherently unlawful; entitled to Central Hudson analysis |
| Whether the ordinance is content‑based | Ordinance targets only employment solicitation (singles out topic/purpose); enforcement requires examining message | Town framed law as safety measure, not viewpoint discrimination | Court: ordinance is content‑based (facially and in application) and subject to heightened scrutiny within commercial‑speech framework |
| Whether the ordinance survives Central Hudson (lawful speech, substantial interest, advancement, narrow tailoring) | Plaintiffs: ordinance is overbroad, reaches protected expressive conduct, and there are less restrictive alternatives | Town: substantial interest in traffic/pedestrian safety; evidence supports advancing interest; exemptions reasonable | Court: interest substantial and evidence supports safety concerns, but ordinance is not narrowly tailored and burdens substantially more speech than necessary — invalid under Central Hudson (overbroad) |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (facial content‑based regulation test)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (content‑based commercial‑speech analysis and heightened scrutiny)
- Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of N.Y., 447 U.S. 557 (1980) (four‑part test for commercial speech regulation)
- McCullen v. Coakley, 573 U.S. 464 (2014) (narrow tailoring and fit requirement for speech restrictions)
- Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) (factors for identifying commercial speech)
- Loper v. New York City Police Dep’t, 999 F.2d 699 (2d Cir. 1993) (expressive conduct can be speech)
- Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134 F.3d 87 (2d Cir. 1998) (commercial speech factors; minimal information can be commercial)
- Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973) (distinguishing inherently illegal commercial speech)