Centro De La Comunidad Hispana v. Town of Oyster Bay

Filing

OPINION, affirm the judgment of the district court, by DJ, BDP, J. RESTANI, FILED.[2106698] [15-2914]

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15-2914-cv
Centro v. Oyster Bay

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In the

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United States Court of Appeals

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For the Second Circuit

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August Term, 2016

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No. 15-2914-cv

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CENTRO DE LA COMUNIDAD HISPANA DE LOCUST VALLEY, AND THE
WORKPLACE PROJECT,
Plaintiffs-Counter-Defendants-Appellees,

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v.

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THE TOWN OF OYSTER BAY, AND JOHN VENDITTO, Town Supervisor of
the Town of Oyster Bay,
Defendants-Counter-Claimants-Appellants.
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Appeal from the United States District Court
for the Eastern District of New York.
No. 10-cv-02262 (DRH) ¯ Denis R. Hurley, Judge.

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Argued: September 12, 2016
Decided: August 22, 2017
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Before: JACOBS and PARKER, Circuit Judges, and RESTANI, Judge.*
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Judge Jane A. Restani, of the United States Court of International Trade, sitting by
designation.

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No. 15-2914-cv

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Defendants-Appellants The Town of Oyster Bay and Oyster
Bay Town Supervisor John Venditto appeal from a judgment of the
United States District Court for the Eastern District of New York
(Hurley, Judge). The district court held that an ordinance of the
Town of Oyster Bay ostensibly designed to regulate the solicitation
of work by day laborers in the Town violated the First Amendment.
We affirm.

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Judge Jacobs dissents in a separate opinion.

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________
JONATHAN SINNREICH, Sinnreich Kosakoff &
Messina LLP, Central Islip, NY, for DefendantsCounter-Claimants-Appellants The Town of Osyter
Bay and John Venditto.
ARTHUR EISENBERG , JORDAN WELLS, MARIKO
HIROSE , New York Civil Liberties Union
Foundation, New York, NY; ALAN LEVINE,
JACKSON CHIN, Latino Justice PRLDEF, New
York, NY, for Plaintiffs-Counter-DefendantsAppellees Centro de la Comunidad Hispana de Locust
Valley and The Workplace Project.
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BARRINGTON D. PARKER, Circuit Judge:

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This appeal requires us to determine whether an ordinance

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passed by the Town of Oyster Bay to regulate the road-side

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solicitation of employment complies with the First Amendment.

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The district court concluded it did not and granted injunctive relief

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to Plaintiffs-Appellees the Workplace Project (“Workplace”) and

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Centro de La Comunidad de Hispana de Locust Valley (“Centro”),

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two entities that work to advance the interests of day laborers in the

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area. We affirm.**
In 2009, the Town of Oyster Bay’s board passed an ordinance
titled “Solicitation from Streets and Sidewalks Prohibited” (the
“Ordinance”), which principally imposed the following restriction:

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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.

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Joint Appendix on Appeal (“App’x”) 466–67.1 The Ordinance
exempts the solicitation of a wide variety of “[s]ervice related
activities such as taxicabs, limousine service, public transportation
vehicles, towing operations, ambulance service and similar uses.”
App’x 467.
The Ordinance’s stated objective is to protect residents from
“the dangers of obstruction, distraction and delays of traffic caused
by the solicitation of employment by pedestrians.” App’x 466. The
record reflects that the actual impetus for the Ordinance was a desire
to regulate day laborers seeking employment in Oyster Bay.
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Also on appeal is the district court’s entry of a protective order, which we resolve in a
summary order issued simultaneously with this opinion.
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Except as otherwise noted, the facts recounted here are undisputed.
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Specifically, the Town of Oyster Bay sought to restrict the effects of
daily gatherings of usually 20–30, but sometimes 50, day laborers
soliciting employment along a four-block stretch of Oyster Bay’s
Forest Avenue (known as the “Forest Avenue shape-up site”). At an
initial public meeting, Oyster Bay residents complained that the day
laborers were causing dangerous, congestive, unhygienic, and
unsightly conditions. See App’x 734. At a subsequent public
hearing, residents spoke both in favor of and against a proposed
version of the Ordinance. Certain residents discussed traffic
problems created by the laborers’ solicitation, see App’x 801, while
others premised their objections on their views as to the laborers’
immigration status, see App’x 826.
Prior to the Ordinance’s enactment, an investigation was
conducted at the direction of Oyster Bay Town Supervisor and
Defendant John Venditto. In furtherance of that investigation,
Oyster Bay’s Commissioner of Public Safety visited the Forest
Avenue shape-up site “between 15 and 20” times, and, among the
“numerous and repeated” issues he observed caused by the day
laborers’ activities were: (i) automobile and pedestrian traffic
congestion leading to hazards, delays, and noise disturbance; (ii) 20
to 30 day laborers “swarm[ing]” passing cars; and (iii) impeding and
forced re-routing of school busses. App’x 1029–33.
The Ordinance was unanimously adopted by the town board
in September 2009. However, it has never been enforced and no
person has been charged with violating it. App’x 1035.
In May 2010, Plaintiffs sued the Town of Oyster Bay and
Town Supervisor Venditto (together, the “Town”) under 42 U.S.C. §
1983 to enjoin the Ordinance on the ground that it violated the First
and Fourteenth Amendments. App’x 128. The District Court found
that the Ordinance likely violated the First Amendment and entered
a temporary restraining order that was converted into a preliminary
injunction. The Town appealed to this Court contending that
Plaintiffs’ members who were subject to the Ordinance were illegal
immigrants engaging in illegal speech that was not protected by the
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First Amendment and, alternatively, that the Ordinance was
narrowly tailored and therefore complied with the First
Amendment. We affirmed on the ground that the district court had
not abused its discretion in converting the temporary restraining
order into a preliminary injunction and remanded to the District
Court because the record on appeal contained no factual
development. Centro de la Comunidad Hispana de Locust Valley v.
Town of Oyster Bay, 420 F. App’x 97 (2d Cir. 2011).
On remand, the Town moved for partial summary judgment
on the ground that Centro lacked standing. The court denied the
motion, concluding that Centro adequately established that the
Ordinance would impose actionable injuries to Centro as an
organization. Centro de La Comunidad Hispana de Locust Valley v.
Town of Oyster Bay, 954 F. Supp. 2d 127, 135-36 (E.D.N.Y. 2013).
Subsequently, Plaintiffs moved for summary judgment, which the
district court granted. Centro de La Comunidad Hispana de Locust
Valley v. Town of Oyster Bay, 128 F. Supp. 3d 597 (E.D.N.Y. 2015).
That ruling rejected the Town’s argument that Workplace lacked
standing, and, after finding that the Ordinance violated the First
Amendment, permanently enjoined the Town from enforcing it. The
district court’s basis for finding the Ordinance unconstitutional was
that although the Ordinance served a legitimate Town interest, it
was insufficiently narrow to serve that interest and consequently
could not pass muster under the First Amendment commercial
speech framework of Central Hudson Gas & Electric Corp. v. Public
Service Commission of New York, 447 U.S. 557 (1980). This appeal
followed.

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I

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“We review de novo both a district court’s grant of summary
judgment and its determination of standing.” Nat. Res. Def. Council,
Inc. v. U.S. Food & Drug Admin., 710 F.3d 71, 79 (2d Cir. 2013).
Summary judgment is proper only where “the movant shows that
there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We
must “constru[e] the evidence in the light most favorable to the nonmoving party and draw[] all reasonable inferences in its favor.”
Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).

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II

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The Town’s main argument on appeal is that Workplace and
Centro lack standing because they are essentially disorganized adhoc interest groups that aim to vindicate generalized grievances
rather than redress concrete and imminent harms. The district court
concluded that both organizations have standing to challenge the
Ordinance because they both established that enforcement of the
Ordinance would pose a “perceptible impairment” to their activities.
954 F. Supp. 2d at 134–37 (Centro); 128 F. Supp. 3d at 607–09
(Workplace).
We conclude that the district court correctly held that
Workplace has standing. Because this conclusion is a sufficient
predicate for federal jurisdiction, we are not called on to consider,
and therefore do not reach, the question of whether Centro has
standing. It is well settled that where, as here, multiple parties seek
the same relief, “the presence of one party with standing is sufficient
to satisfy Article III’s case-or-controversy requirement.” Rumsfeld v.
Forum of Acad. and Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006); see also
Doe v. Bolton, 410 U.S. 179, 189 (1973); Bowsher v. Synar, 478 U.S. 714,
721 (1986).
It is undisputed that Workplace is an incorporated
membership organization based in Nassau County, New York, the
same county in which Oyster Bay is located. App’x 990. Its mission
is to “end the exploitation of Latino immigrant workers on Long
Island and to achieve socioeconomic justice by promoting the full
political, economic and cultural participation of those workers in the
communities in which they live.” App’x 990. Workplace furthers its
mission “with the participation of Latino immigrant workers on

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Long Island through community organizing, legal support,
education, leadership development, and building worker
cooperatives.” App’x at 990.
To establish standing, Workplace, as an organization, bore the
burden of showing: (i) an imminent “injury in fact” to itself as an
organization (rather than to its members) that is “distinct and
palpable”; (ii) that its injury is “fairly traceable” to enforcement of
the Ordinance; and (iii) that a favorable decision would redress its
injuries. Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); see also Susan B.
Anthony List v. Driehaus, 134 S.Ct. 2334, 2342 (2014) (“The party
invoking federal jurisdiction bears the burden of establishing
standing” (internal quotation marks omitted)). The Supreme Court
has held that an organization establishes an injury-in-fact if it can
show that it was “perceptibly impaired” by defendant’s actions.
Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
Consequently, we have repeatedly held that “only a ‘perceptible
impairment’ of an organization’s activities is necessary for there to
be an ‘injury in fact.’” Nnebe, 644 F.3d at 157 (quoting Ragin v. Harry
Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993)); N.Y. Civil
Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294 (2d Cir.
2011); N.Y. State Citizens’ Coal. for Children v. Velez, 629 F. App’x 92,
94 (2d Cir. 2015). Moreover, we have held that where, as here, a
party seeks review of a prohibition prior to its being enforced,
“somewhat relaxed standing” rules apply. Nat’l Org. for Marriage,
Inc. v. Walsh, 714 F.3d 682, 689 (2d Cir. 2013).
The Town challenges only the district court’s determination as
to the first standing prong, arguing that Workplace failed to
establish injuries that were concrete or imminent. We disagree.

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A.

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Workplace Established Concrete Injuries
Workplace asserted that enforcement of the Ordinance will
injure it in three ways. First, enforcement will adversely impact its
ability to organize day laborers because the Ordinance will
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necessarily disperse and reduce the number of day laborers
gathering in Oyster Bay.
Second, enforcement will require
Workplace to divert resources from other of its activities to combat
the effects of the Ordinance. And third, enforcement will expose its
advocates to risk of arrest because those enforcing the Ordinance
cannot differentiate between advocacy activities and the day
laborers’ solicitation. Tellingly, the Town essentially concedes that
those injuries could confer standing, but argues primarily that
Workplace has not shown they have occurred.
But the Supreme Court has been clear that in a preenforcement action such as this “the injury required for standing
need not be actualized. A party facing prospective injury has
standing to sue where the threatened injury is real, immediate, and
direct.” Davis v. F.E.C., 554 U.S. 724, 734 (2008). Workplace has met
this standard. It presented evidence identifying the concrete and
particularized injuries that the Ordinance will impose.
The record demonstrates that Workplace’s activities include
traveling to day laborer sites in Oyster Bay to speak with laborers
and if the Ordinance achieves one of its principal
objectives—disbursement of day laborers—Workplace will
inevitably face increased difficulty in meeting with and organizing
those laborers. App’x 991. We have held that an organization
shows injury-in-fact where, as here, a “policy has impeded, and will
continue to impede, the organization’s ability to carry out [its]
responsibilit[ies].” N.Y. Civil Liberties Union, 684 F.3d at 295; see also
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d
936, 943 (9th Cir. 2011).
Relatedly, it is also clear that the Ordinance will force
Workplace to divert money from its other current activities to
advance its established organizational interests (i.e., if the laborers
are dispersed, it will be more costly to reach them). In fact,
Workplace offered unrebutted testimony that it has already had to
devote attention, time, and personnel to prepare its response to the
Ordinance. App’x 956–57. And, where an organization diverts its
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resources away from its current activities, it has suffered an injury
that has been repeatedly held to be independently sufficient to
confer organizational standing. See Havens Realty Corp., 455 U.S. at
379 (a “concrete and demonstrable injury to [an] organization’s
activities—with the consequent drain on the organization’s
resources—constitutes far more than simply a setback to the
organization’s abstract social interests”); see also Olsen v. Stark Homes,
Inc., 759 F.3d 140, 158 (2d Cir. 2014); Nnebe, 644 F.3d at 157; Ragin, 6
F.3d at 905. Significantly, the Supreme Court has recently reaffirmed
Havens Realty’s holding that a nonprofit organization establishes an
injury-in–fact if, as here, it establishes that it “spent money to
combat” activity that harms its organization’s core activities. Bank of
Am. Corp. v. City of Miami, 137 S.Ct. 1296, 1303 (2017).
Finally, Workplace offered evidence that those responsible for
enforcing the Ordinance are likely to confuse the conduct of
Workplace’s activists with that of the day laborers. See App’x 727–78
(testimony from a Town law enforcement officer that he is unable to
distinguish day laborers from activists in a photo taken at a shapeup site); App’x 958–60 (testimony from Workplace activist that she
fears her activism will be mistaken for conduct prohibited by the
Ordinance). As the district court concluded, not only might this
create a risk of erroneous arrest, it makes it “perceptible that
enforcement of the Ordinance would prevent Workplace from
engaging in counseling at shape-up sites within the Town and thus
impair its advocacy activities.” 128 F. Supp. 3d at 609.
As discussed, each of Workplace’s demonstrated injuries are
sufficient to constitute an injury-in-fact.
In light of these
considerations, we conclude that Workplace has shown that the
Ordinance threatens the requisite “perceptible impairment” of its
activities and thus imposes concrete injuries for purposes of federal
jurisdiction.

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Workplace Established Imminent Injuries
The Town next argues that even if the Ordinance could affect
advocates working on behalf of day laborers in the ways Workplace
asserts, Workplace has not shown that it will conduct such work
within the relevant area of Oyster Bay. Br. of Appellants 33–34.
Consequently, according to the Town, any potential injury to
Workplace is not imminent. We disagree.
The record establishes that Workplace had substantially more
than an imminent intention to engage in the activity that would
subject it to the injuries it asserted. Workplace has actively worked
in Oyster Bay and actively campaigned against the Ordinance on
behalf of its members. This conduct amounted to much more than a
“‘some day’ intention” or a “vague desire” to engage in the activities
that will subject it to its asserted injuries. See Summers v. Earth Island
Inst., 555 U.S. 488, 496 (2009). The case law makes clear that
Workplace’s injuries are sufficiently imminent. In Davis, 554 U.S. at
734, for example, Justice Alito, writing for a majority of the court,
held that a political candidate faced injury sufficiently imminent to
challenge campaign disclosure requirements by simply declaring his
intention to run for office and to spend more than the amount for
which disclosure was required. Here, Workplace has done at least
as much as what passed muster in Davis and, as a consequence, has
established imminent injuries. In sum, Workplace established its
standing.

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III

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B.

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We now turn to the constitutionality of the Ordinance under

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the First Amendment. Our preliminary task is to determine if the

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Ordinance is even subject to the First Amendment by asking if it

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restricts speech based on its content.

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Ordinance is a content-based restriction, specifically, a restriction on

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commercial speech.

We conclude that the

So finding, we then assess whether the

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Ordinance survives the Central Hudson test applicable to commercial

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speech restrictions.

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The district court, applying Central Hudson, concluded that the

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Ordinance is a content-based commercial speech restriction that was

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not narrowly drawn and, as a consequence, violated the First

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Amendment. Specifically, it concluded that the Ordinance targets

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speech concerning lawful activity; that the Town’s interest is

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substantial; that the Ordinance directly advances that interest; but

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that the Ordinance was not narrowly tailored to serve that interest.

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See Central Hudson, 447 U.S. at 566.

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We arrive at essentially the same conclusion as the district

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court. Specifically, we agree that: (i) the Ordinance restricts speech

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based on its content and is therefore subject to the First Amendment;

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and (ii) the Ordinance fails the Central Hudson test because it is an

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overbroad commercial speech prohibition.

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The Ordinance Is a Content-Based Restriction

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Workplace is correct that the Ordinance implicates the First

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Amendment because it restricts speech based on its content.

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Although the Ordinance has a conduct component—the attempted

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stopping of a vehicle—the Ordinance only punishes such conduct if

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done “for the purpose of soliciting employment.” Consequently,

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Town officials must monitor and evaluate the speech of those

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stopping or attempting to stop vehicles and they may sanction the

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speaker only if a suspect says the wrong thing, for example, “hire

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me” as opposed to “tell me the time.”

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restriction and it is well settled that such restrictions implicate the

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First Amendment. For example, in Police Department of the City of

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Chicago v. Mosley, 408 U.S. 92, 95 (1972), the Supreme Court assessed

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a city ordinance which prohibited peaceful picketing unless it was
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aimed at a school labor-management dispute. The Court invalidated

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the ordinance as content-based because “it describe[d] permissible

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picketing in terms of its subject matter,” in that, as here, the

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“operative distinction [between the permissible and impermissible

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conduct] is the message.” Id.

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B.

Central Hudson Test for Commercial Speech

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The district court correctly concluded that, because the

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Ordinance restricts speech only if it constitutes soliciting of

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employment, the speech targeted by the Ordinance is commercial

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speech. It is well settled that speech that is no more than a proposal

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of possible employment is a “classic example” of commercial speech.

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Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S.

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376, 385 (1973); see also Moldonado v. Holder, 763 F.3d 155, 173 (2d Cir.

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2014) (Lynch, J., dissenting).

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commercial speech, which is afforded less protection than other

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constitutionally safeguarded forms of expression, it is subject to the

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Central Hudson analysis, to which we now turn.2

Because the Ordinance targets

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In contrast to the strict scrutiny applied to, for example, core

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political speech restrictions, the Central Hudson test for commercial

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speech restrictions is a form of intermediate scrutiny. See Safelite

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Grp., Inc. v. Jepsen, 764 F.3d 258, 261 (2d Cir. 2014). It requires us to

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ask: (i) if the Ordinance restricts speech that concerns lawful activity;

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(ii) if the Town’s asserted interest is substantial; (iii) if the Ordinance

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directly advances that interest; and (iv) if the Ordinance is more

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extensive than necessary to serve that interest? Central Hudson, 447
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Workplace argues that the speech restricted by the Ordinance is “ideological advocacy and

political speech,” rather than commercial speech. Br. of Appellees at 19–24. Because we
conclude that the Ordinance fails even assuming the restricted speech is commercial speech,
which is “afford[ed] less protection” than political speech, Connecticut Bar Association v.
United States, 620 F.3d 81, 93 (2d Cir. 2010), we need not resolve this question.
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U.S. at 566.

The government bears the burden of justifying the

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restriction. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n.20

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(1983).

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i.
The Restricted Speech Concerns Lawful Activity
“For commercial speech to come within [the protection of the

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First Amendment], it at least must concern lawful activity and not be

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misleading.”

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concluded that the speech targeted by the Ordinance—the

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solicitation of employment—“is not in and of itself illegal,” and

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therefore the speech prohibited by the Ordinance is protected by the

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First Amendment. 128 F. Supp. 2d at 614. We too conclude that the

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Ordinance restricts First Amendment protected speech that

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“concern[s] lawful activity.”

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Central Hudson, 447 U.S. at 566. The district court

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The Supreme Court has offered guidance on what it means for

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speech to “concern lawful activity.” Notably, in Pittsburgh Press, it

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held a prohibition against gender-based placement of help-wanted

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ads restricted speech that did not concern lawful activity, concluding

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that the ads were entitled to no First Amendment protection because

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“[d]iscrimination in employment . . . is illegal commercial activity.”

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413 U.S. at 388; see also id. (“We have no doubt that a newspaper

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constitutionally could be forbidden to publish a want ad proposing a

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sale of narcotics or soliciting prostitutes.”). The basis for stripping

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such speech of all First Amendment protection was that “the

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commercial activity itself is illegal.” Id. at 389. Our cases decided

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after Pittsburgh Press offer additional clarity.

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In Swedenburg v. Kelly, 358 F.3d 223 (2d Cir. 2004), rev’d on

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unrelated grounds, 544 U.S. 460 (2005), we assessed a New York

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statute prohibiting unlicensed persons from sending into the state

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“publication[s] of any kind containing an advertisement or a
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solicitation of any order for any alcoholic beverages.” Id. at 240.

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New York law prohibited unlicensed persons from shipping alcohol

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into the state, and New York argued that it interprets its prohibition

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to apply only to the solicitation of such illegal orders. However, we

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affirmed invalidation of the statute because its “broad language”

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also restricted the advertisement (and not just solicitation) of alcoholic

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beverages. Id. at 240–41. Consequently, because the statute could be

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applied to restrict speech promoting lawful activity, we held the

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restricted speech “concerns lawful activity” per Central Hudson. Id.

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In Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010), we interpreted

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the “not be misleading” component of Central Hudson’s first prong.

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There, we held attorney advertising restrictions that prohibited

13

“potentially misleading ads” were subject to Central Hudson. Id. at

14

89. We noted that “‘States may not place an absolute prohibition on

15

certain types of potentially misleading information . . . if the

16

information also may be presented in a way that is not deceptive.’”

17

Id. at 89 (quoting In re R.M.J., 455 U.S. 191, 203 (1982)). Although not

18

addressing Central Hudson’s “concern[s] lawful activity” language,

19

Alexander shows that commercial speech is not categorically

20

removed from the First Amendment on a specified basis if that basis

21

is not applicable to all manifestations of the restricted speech. See id.

22

at 90.

23

The Fourth Circuit’s decision in Educational Media Co. at

24

Virginia Tech, Inc. v. Swecker, 602 F.3d 583 (4th Cir. 2010) is also

25

instructive.

26

Beverage Control Board prohibited “college student publications”

27

from advertising alcoholic beverages.

28

sued.

29

restriction on commercial speech that concerned lawful activity. It

30

concluded as such because even though the newspapers’ readers

To combat underage drinking, Virginia’s Alcoholic
Two student newspapers

The Fourth Circuit concluded that the prohibition was a

14

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1

were primarily under the legal drinking age, the restriction applied to

2

ads that could be viewed by those who were of age:

3

On its face, § 5-20-40(B)(3) does not restrict commercial

4

speech solely distributed to underage students; rather, it

5

applies to commercial speech that, though primarily

6

intended for underage students, also reaches of-age

7

readers. Therefore, the commercial speech regulated by

8

§ 5-20-40(B)(3) concerns lawful activity.

9

Id. at 589.

10

The Ninth Circuit has addressed Central Hudson’s “concerns

11

lawful activity” component specifically in the context of a day labor

12

solicitation restriction. Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 821

13

(9th Cir. 2013). In Valle, the government argued that the speech

14

concerned unlawful activity because the prohibition only applied to

15

solicitation “when associated with the unlawful activity of blocking

16

or impeding traffic.” Id. The Court rejected the argument, and held

17

plaintiffs met their burden of demonstrating that their solicitation

18

concerns lawful activity, “because it is legal to hire or be hired for

19

day labor.” Id.

20

In sum, the First Amendment offers no protection to speech

21

that proposes a commercial transaction if consummation of that

22

transaction would necessarily constitute an illegal act. However, if,

23

as here, there are plausible ways to complete a proposed transaction

24

lawfully, speech proposing that transaction “concerns lawful

25

activity” and is therefore protected commercial speech.

26

The Town argues that because each proposed employment

27

transaction by a day laborer whom the Ordinance targets would be

28

an under-the-table illegal employment arrangement, in violation of

15

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1

immigration, tax, and labor laws, that solicitation of those

2

transactions does not and cannot “concern lawful activity.” Br. of

3

Appellants at 47.

4

This argument lacks merit. It is without question that the

5

Ordinance could be applied to prohibit speech proposing no illegal

6

transaction. As the district court correctly noted:

7

[The Ordinance] extends to any individual soliciting

8

employment positioned on property “adjacent to” the

9

Town’s streets and sidewalks – even if that individual

10

does not enter the roadway and is a U.S. citizen, who

11

appropriately discloses all his income to federal, state

12

and local income tax authorities, and is the only person

13

in the immediate area on a lightly traveled road with

14

ample parking spaces for any solicited vehicle to

15

lawfully pull over. In other words, it reaches speech

16

that is potentially lawful.

17
18
19

128 F. Supp. 3d at 615. We are in accord, and, consequently, we
conclude that the Ordinance restricts speech concerning lawful
activity.

21

ii.
The Town’s Asserted Interest is Substantial
The Town’s asserted interest in the Ordinance “is to protect

22

the health, safety and welfare of motorists and pedestrians using

23

public rights-of-way in the Town of Oyster Bay from the traffic and

24

other dangers brought about by street side solicitation.” Dkt. 10-cv-

25

02262, No. 132-1 at 32 (S.D.N.Y. Dec. 1, 2014).

26

substantial under Central Hudson. See, e.g., Metromedia, Inc. v. City of

27

San Diego, 453 U.S. 490, 507 (1981).

20

16

This interest is

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2

iii.
The Ordinance Directly Advances That Interest
The third step of Central Hudson concerns the relationship

3

between the harm underlying the Town’s interest and the means

4

identified by the Town to advance that interest. Greater New Orleans

5

Broad. Ass’n v. United States, 527 U.S. 173, 188 (1999) cautions that the

6

speech restriction must “directly and materially advance[] the

7

asserted government interest.”

8

largely

9

individuals from stopping traffic to seek employment furthers the

10

interest of traffic and pedestrian safety. Moreover, the Town offered

11

evidence of the hazards caused by laborers’ congregation at the

12

Forest Avenue shape-up site.

13

underinclusive, “in the commercial speech context, the Supreme

14

Court has made clear that underinclusiveness will not necessarily

15

defeat a claim that a state interest has been materially advanced.”

16

Anderson v. Treadwell, 294 F.3d 453, 463 (2d Cir. 2002).

1

unchallenged

by

For good reason, this prong is

Workplace.

Clearly,

prohibiting

Although the Ordinance may be

18

iv.
The Ordinance is Not Narrowly Drawn
Under Central Hudson’s fourth prong, the Town bore the

19

burden of establishing that the Ordinance is “narrowly drawn to

20

further the interests served.” United States v. Caronia, 703 F.3d 149,

21

167 (2d Cir. 2012). The Town did not have to show that it chose the

22

least restrictive means of advancing its asserted interests, nor that

23

there was no conceivable alternative. Rather, its obligation was to

24

establish that the regulation not burden substantially more speech

25

than necessary to further its legitimate interests. Safelite Grp., Inc.,

26

764 F.3d at 265; Clear Channel Outdoor, Inc. v. City of New York, 594

27

F.3d 94, 104 (2d Cir. 2010).

17

28

The district court correctly concluded that the Town failed to

29

meet this obligation. It held that the Ordinance is “extremely far17

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1

reaching,” in that it prohibits speech that “pose[s] [no] threat to

2

safety on the Town’s streets and sidewalks.” 128 F. Supp. 3d at 618.

3

It then found that the Town had available to it “less burdensome

4

alternatives available to address street and sidewalk safety,” citing

5

to numerous state and local public safety laws. Id. at 619–20. On

6

those bases, the district court concluded that the Ordinance fails

7

Central Hudson’s fourth prong. We agree.

8

The Ordinance does not require any connection between the

9

prohibited speech—solicitation of employment—and the asserted

10

interest—traffic and pedestrian safety. There are numerous ways in

11

which an individual, “adjacent to any public right-of-way,” might

12

“attempt to stop [a] motor vehicle utilizing said public right-of-way

13

for the purpose of soliciting employment” that would cause no

14

threat whatever to public safety. The district court offered several

15

apt examples:

16

[The Ordinance] reaches a lone person standing on the

17

sidewalk, away from the curb, who attempts to make

18

known to the occupants of vehicles his availability for

19

work even if it does not result in a car stopping in traffic

20

or double parking. It reaches children selling lemonade

21

at the end of a neighbor’s driveway (which is, after all,

22

“adjacent to” a public right of way), the veteran holding

23

a sign on a sidewalk stating “will work for food,” and

24

students standing on the side of a road advertising a

25

school carwash.

26

sidewalk holding a sign “looking for work - park at the

27

curb if you are interested in hiring me” would violate

28

the ordinance as it contains no specific intent element

29

and no requirement that the “attempt to stop” result in

Even a person standing on the

18

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1

traffic congestion, the obstruction of other vehicles, or

2

double parking.

3

Id. at 618.

4

The Town argues at the outset that this reasoning by the

5

district court was faulty because it erroneously assessed the impact

6

of the Ordinance on individuals not before the court (i.e., day

7

laborers or lemonade stand vendors). Specifically, the Town posits

8

that because Workplace only established organizational (rather than

9

representational) standing, it was error for the district court to

10

evaluate the impact of the Ordinance on anyone but Workplace as

11

an organization. See Br. of Appellants at 6–7 (describing this as a

12

“bait-and-switch”). The Town’s argument appears to depend on the

13

principle announced in Village of Hoffman Estates v. Flipside, Hoffman

14

Estates, Inc., 455 U.S. 489, 497 (1982), that it “is irrelevant whether

15

[an] ordinance has an overbroad scope encompassing protected

16

commercial speech of other persons, because the overbreadth

17

doctrine does not apply to commercial speech.”

18

This argument fails because the Supreme Court has been clear

19

that overbreadth challenges to commercial speech restrictions may

20

be brought if the prohibition “reach[es] some noncommercial

21

speech.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 482

22

(1989).

23

impacted by the Ordinance constitute core First Amendment

24

activity. See Vill. of Schaumburg v. Citizens for a Better Env’t., 444 U.S.

25

620,

26

“communication of information, the dissemination and propagation

27

of views and ideas, and the advocacy of causes”); see also N.A.A.C.P.

28

v. State of Ala. ex rel. Patterson, 357 U.S. 449, 462 (1958) (First

29

Amendment activities of advocacy groups are particularly sensitive

Here, it is without question that Workplace’s activities

632

(1980)

(basic

First Amendment activities

19

include

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“where a group espouses dissident beliefs”). Because of the Town’s

2

restriction on commercial speech, Workplace’s ability to engage in

3

those core First Amendment activities will be directly and adversely

4

impacted in the manners we previously described, supra 7–10.

5

Accordingly, the Ordinance clearly “reach[es] some noncommercial

6

speech,” and the district court was free to assess its broader impact

7

on hypothetical individuals.3 And we agree with the district court

8

that the Ordinance’s impact on the commercial speech of those

9

hypothetical individuals is too broad to survive Central Hudson.

10

We also find it significant that the Ordinance does not apply

11

to the most common forms of solicitation involving the stopping of

12

vehicles on public rights of way, such as the hailing of a taxi or a

13

public bus. These exemptions strongly suggest that in the great

14

majority of situations, stopping a vehicle on a public right of way

15

creates no inherent safety issue. Entirely prohibiting one speech-

16

based subset of an activity that is not inherently disruptive raises the

17

question whether the Town’s actual motivation was to prevent

18

speech having a particular content, rather than address an actual

19

traffic and pedestrian congestion issue. See Glickman v. Wileman Bros.

20

& Elliott, Inc., 521 U.S. 457, 493 (1997) (Souter, J. dissenting)

21

(“‘[E]xemptions and inconsistencies’ in alcohol labeling ban ‘bring

22

into question the purpose of the . . . ban,’ such that it does not

23

survive the Central Hudson test”) (quoting Rubin v. Coors Brewing Co.,

24

514 U.S. 476, 489 (1995)); The Florida Star v. B.J.F., 491 U.S. 524, 540

25

(1989) (“[T]he facial underinclusiveness of § 794.03 raises serious
3

That the Ordinance adversely impacts certain core First Amendment activity does not
remove the Ordinance from the less-strict review of our commercial speech jurisprudence.
A commercial speech prohibition that leads to coincident “restrictions on expressive speech,”
is still assessed under commercial speech doctrine if the restrictions on expression “properly
are characterized as incidental to the primary congressional purpose of” the prohibition. S.F.
Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 536-37 (1987).
20

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1

doubts about whether Florida is, in fact, serving, with this statute,

2

the significant interests which appellee invokes.”).

3

discussed below, it is relevant to the “narrowly drawn” analysis if

4

the Town was principally motivated in restricting a particular

5

category of speech, rather than the “traffic safety” interests it has

6

asserted.

And, as

7

The Town responds by arguing that the Ordinance is

8

narrowly drawn despite its broad exemptions because the

9

Ordinance is aimed at the specific situation at the Forest Avenue

10

shape-up site, which, unlike a singular taxi hailer for example,

11

involves large numbers of people gathered in groups to stop cars.

12

But the Ordinance does not limit solicitation of employment when

13

done in large groups, it broadly extends to all types of solicitation.

14

Therefore, the Ordinance is not “narrowly drawn.”

15

Finally, it is an “important consideration” to the “narrowly

16

drawn” requirement if there existed “numerous and obvious less-

17

burdensome alternatives to the restriction on commercial speech”

18

Florida Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995). The district

19

court cited to “a number of less burdensome alternatives to address

20

street and sidewalk safety.” 128 F. Supp. 3d at 619. As one notable

21

example, Section 173-4 of the Town’s Code prohibits a “solicitor”

22

from (i) “occupy[ing] any stationary location in any street or any

23

public property”; or (ii) “solicit[ing] in any congested place or an

24

area when or where such activity may impede or inconvenience the

25

public or add to the congestion of such place or area.” Section 173-4

26

is probative not only because it is an example of a less content-based

27

tool than the Ordinance to stop the precise harm the Town claims

28

motivated the Ordinance. It also demonstrates how the Town could

29

have drawn the Ordinance such that it would advance its asserted

30

interest while limiting the impact on constitutionally protected
21

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1

speech by tying the prohibition to a manifestation of the harm

2

sought to be avoided.

3

The Town argues that the regulations identified by the district

4

court do “not address the full panoply of dangers that have arisen

5

and are concomitant with a bustling street-side labor market.” Br. of

6

Appellants at 60. Even assuming, arguendo, this to be true, it is of no

7

moment. The Ordinance does not prohibit a “bustling street-side

8

labor market”; it broadly prohibits any attempt to stop a vehicle to

9

solicit employment anywhere in Oyster Bay irrespective of its effect.

10

It is therefore clear that the Ordinance simply adds a speech-

11

based component to an already existing prohibition. This is another

12

indication that the principal interest the Town aimed to serve was

13

the suppression of that particular speech, rather than the interests in

14

traffic and pedestrian safety that it asserted before the district court.

15

We refuse to conclude that the Ordinance is narrowly drawn where

16

it broadly impacts protected speech and only narrowly addresses the

17

Town’s stated interest. In Edenfeld v. Fane, 507 U.S. 761, 768 (1993),

18

the Court cautioned that under Central Hudson, courts should not

19

“turn away if it appears that the stated interests are not the actual

20

interests served by the restriction.”

21

For these reasons, we conclude that the district court correctly

22

held that the Ordinance is an unconstitutional restriction of

23

commercial speech in violation of the First Amendment.

24

Finally, we note that the dissent faults us for affirming the

25

invalidation of the entire Ordinance, including subdivision D, rather

26

than severing subdivision C.

27

contention is the exclusive concern of our dissenting colleague, not

28

of the parties.

29

Ordinance since the inception of this litigation. During the seven

30

years that this litigation has been pending, the Town has never

Dissenting op. at 15–19.

This

Plaintiffs have sought invalidation of the entire

22

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1

raised the prospect of severing the Ordinance, not in its pleadings,

2

not during extensive summary judgment proceedings, and not in the

3

two appeals taken to this Court. If the Town wanted severance as an

4

alternative remedy it, presumably, would have said so.

5

event, the law is well settled that arguments as to severability are

6

waived where, as here, a party fails to raise the issue. See, e.g.,

7

Redondo Beach, 657 F.3d at 951 n.10; Bishop v. Smith, 760 F.3d 1070,

8

1095 (10th Cir. 2014); Lozano v. City of Hazelton, 620 F.3d 170, 182 &

9

n.13 (3d Cir. 2010), rev’d on irrelevant grounds, 563 U.S. 1030 (2011);

10

Telecomm’s Reg. Bd. of Puerto Rico v. CTIA-Wireless Ass’n, 752 F.3d 60,

11

62 n.2 (1st Cir. 2014).

12
13

CONCLUSION
The judgment of the district court is AFFIRMED.

23

In any