Ariz. Can’t Block Immigrant Day Laborers from Work, Court Says

Posted March 15, 2013 in Government Immigration Litigation by

Yet another part of Arizona’s controversial 2010 immigration law has been blocked from enactment – this time by the 9th U.S. Circuit Court of Appeals, which on Mar. 4 said SB 1070’s targeting of “traffic obstructions” by day laborers violates their First Amendment right to commercial speech.

A lower federal court in February 2012 issued an injunction blocking two of the law’s sections that make it illegal both to try, from a car, to hire day laborers and to be hired that way. The federal appeals court ruled in Valle del Sol v. Whiting that the law should remain blocked – for now.


Too Broad for First Amendment 

Arizona argued that the provisions of SB 1070 are traffic safety measures that are simply designed to promote the safe and orderly flow of traffic, according to the opinion. The appellate court said the state clearly has an interest in traffic safety.

“Arizona, however, has failed to justify a need to serve that interest through targeting and penalizing day labor solicitation that blocks traffic,” said the court.

Instead, the state should have targeted people who create traffic hazards, and not referred to their speech. “Laws like this one that restrict more protected speech than is necessary violate the First Amendment,” the court wrote.

Day laborers engage in commercial speech when they solicit employment, most often on street corners, according to the opinion. While it is not protected as strongly as political speech, commercial speech is also protected by the First Amendment.

In order to regulate commercial speech, according to law professor Doug Linder’s blog, the government only has to show that a law directly advances an important state interest (like the safety of its citizens, for example) and that the law doesn’t restrict commercial speech more than is absolutely necessary to achieve its goal. Arizona’s law failed the second part of that test. 


States Don’t Fear to Tread…

“Today’s opinion reaffirms that the freedom to seek work is a constitutionally protected right,” said the ACLU, which argued for the plaintiffs in the suit, a coalition of organizations representing the laborers, who are often immigrants. 

“The decision also recognizes that the explicit intent of the anti-day labor provisions of SB 1070 was to drive immigrants from the state of Arizona,” continued the ACLU, “not, as the state had argued in court, to preserve traffic safety.”

Lawyers point out that at this point, only a preliminary injunction has been upheld, and the case is not over yet. “A trial might be held,” observes Kevin Johnson, dean of UC Davis School of Law, who has written about the case.

Dean Kevin Johnson headshot

Dean Kevin Johnson

“However, ordinarily in cases like this courts are likely to enter a permanent injunction,” he says. Or, “the State of Arizona could seek review in the U.S. Supreme Court.”

SB 1070’s chances at the high court don’t look good at this point. “Last year, the Supreme Court upheld an injunction barring enforcement of several core provisions of SB 1070,” Johnson points out.

Other states have passed similar laws designed as immigration enforcement measures, he says, including Alabama, Georgia, Oklahoma and others. “States like Arizona claim that the federal government is failing to enforce U.S. immigration laws.”

And while the states’ attempts to wrest control of the issue away from the feds may end up being unsuccessful, it may spark changes after all. “The pressure from the states has contributed to the congressional decision to return to discussing comprehensive immigration reform,” says Johnson.

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