Court: Day laborers have 1st Amendment right to solicit jobs

By LARRY NEUMEISTER Markets Associated Press

Day laborers in a Long Island town have a First Amendment right to solicit passing truck drivers for jobs, a divided federal appeals court said Tuesday.

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The 2nd U.S. Circuit Court of Appeals in Manhattan by a 2-to-1 vote on Tuesday struck down the 2009 law that banned the solicitation in Oyster Bay, saying it was content-driven and aimed at stopping workers from reaching out to motorists on a four-block section of the suburban New York town's roads.

Circuit Judge Barrington D. Parker, writing for the majority, said the ordinance was a restriction on commercial speech in a town with a population of roughly 300,000 people.

It was passed after residents complained that day laborers were causing dangerous, congestive, unhygienic and unsightly conditions. Town lawyers said it was necessary to fix traffic and safety issues that arose when trucks stopped to pick up workers.

The law banned efforts to stop a vehicle "only if a suspect says the wrong thing, for example, 'hire me' as opposed to 'tell me the time,'" Parker wrote. "This is content-based restriction and it is well settled that such restrictions implicate the First Amendment."

The law, challenged by two entities that try to advance the interests of day laborers in the town, had not been enforced as the courts considered its legality.

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Lawyers for the town had defended the law, saying the daily roadside gatherings of between 20 and 50 job seekers permitted illegal immigrants to get jobs without paying taxes or otherwise obeying work-related laws.

"Our neighborhoods will not become sanctuaries for illegal aliens under my watch," Town Supervisor Joseph Saladino said in a statement Tuesday as he promised to appeal the decision to the U.S. Supreme Court.

"I cannot understand why any court in this nation would allow illegal aliens to gather on residential streets seeking illegal work while avoiding paying taxes," he said as he described his town as a "melting pot" of people from all origins.

In a dissent, 2nd Circuit Judge Dennis Jacobs said two organizations that brought the lawsuit lacked standing. He also wrote that it was not necessary to toss out the entire law to remedy its flaws.