Centro De La Comunidad Hispana v. Town of Oyster Bay


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

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Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page1 of 23 15-2914-cv Centro v. Oyster Bay 1 In the 2 United States Court of Appeals 3 For the Second Circuit 4 ________ 5 August Term, 2016 6 7 No. 15-2914-cv 8 9 CENTRO DE LA COMUNIDAD HISPANA DE LOCUST VALLEY, AND THE WORKPLACE PROJECT, Plaintiffs-Counter-Defendants-Appellees, 10 11 12 13 v. 14 15 THE TOWN OF OYSTER BAY, AND JOHN VENDITTO, Town Supervisor of the Town of Oyster Bay, Defendants-Counter-Claimants-Appellants. ________ 16 17 18 19 20 23 Appeal from the United States District Court for the Eastern District of New York. No. 10-cv-02262 (DRH) ¯ Denis R. Hurley, Judge. 24 ________ 21 22 25 Argued: September 12, 2016 Decided: August 22, 2017 ________ 26 27 28 29 Before: JACOBS and PARKER, Circuit Judges, and RESTANI, Judge.* ________ 30 31 * Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation. Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page2 of 23 No. 15-2914-cv 1 2 3 4 5 6 7 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. 8 9 Judge Jacobs dissents in a separate opinion. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ________ 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. ________ 24 25 26 27 28 29 30 31 32 2 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page3 of 23 No. 15-2914-cv 1 BARRINGTON D. PARKER, Circuit Judge: 2 This appeal requires us to determine whether an ordinance 3 passed by the Town of Oyster Bay to regulate the road-side 4 solicitation of employment complies with the First Amendment. 5 The district court concluded it did not and granted injunctive relief 6 to Plaintiffs-Appellees the Workplace Project (“Workplace”) and 7 Centro de La Comunidad de Hispana de Locust Valley (“Centro”), 8 two entities that work to advance the interests of day laborers in the 9 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: 10 11 12 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. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. ** 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. 1 Except as otherwise noted, the facts recounted here are undisputed. 3 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page4 of 23 No. 15-2914-cv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 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 4 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page5 of 23 No. 15-2914-cv 27 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. 28 I 29 “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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 30 31 32 33 5 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page6 of 23 No. 15-2914-cv 4 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). 5 II 6 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 1 2 3 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 6 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page7 of 23 No. 15-2914-cv 29 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. 30 A. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31 32 33 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 7 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page8 of 23 No. 15-2914-cv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 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 8 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page9 of 23 No. 15-2914-cv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 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. 9 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page10 of 23 No. 15-2914-cv 24 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. 25 III 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 B. 26 We now turn to the constitutionality of the Ordinance under 27 the First Amendment. Our preliminary task is to determine if the 28 Ordinance is even subject to the First Amendment by asking if it 29 restricts speech based on its content. 30 Ordinance is a content-based restriction, specifically, a restriction on 31 commercial speech. We conclude that the So finding, we then assess whether the 10 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page11 of 23 No. 15-2914-cv 1 Ordinance survives the Central Hudson test applicable to commercial 2 speech restrictions. 3 The district court, applying Central Hudson, concluded that the 4 Ordinance is a content-based commercial speech restriction that was 5 not narrowly drawn and, as a consequence, violated the First 6 Amendment. Specifically, it concluded that the Ordinance targets 7 speech concerning lawful activity; that the Town’s interest is 8 substantial; that the Ordinance directly advances that interest; but 9 that the Ordinance was not narrowly tailored to serve that interest. 10 See Central Hudson, 447 U.S. at 566. 11 We arrive at essentially the same conclusion as the district 12 court. Specifically, we agree that: (i) the Ordinance restricts speech 13 based on its content and is therefore subject to the First Amendment; 14 and (ii) the Ordinance fails the Central Hudson test because it is an 15 overbroad commercial speech prohibition. 16 A. The Ordinance Is a Content-Based Restriction 17 Workplace is correct that the Ordinance implicates the First 18 Amendment because it restricts speech based on its content. 19 Although the Ordinance has a conduct component—the attempted 20 stopping of a vehicle—the Ordinance only punishes such conduct if 21 done “for the purpose of soliciting employment.” Consequently, 22 Town officials must monitor and evaluate the speech of those 23 stopping or attempting to stop vehicles and they may sanction the 24 speaker only if a suspect says the wrong thing, for example, “hire 25 me” as opposed to “tell me the time.” 26 restriction and it is well settled that such restrictions implicate the 27 First Amendment. For example, in Police Department of the City of 28 Chicago v. Mosley, 408 U.S. 92, 95 (1972), the Supreme Court assessed 29 a city ordinance which prohibited peaceful picketing unless it was 11 This is a content-based Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page12 of 23 No. 15-2914-cv 1 aimed at a school labor-management dispute. The Court invalidated 2 the ordinance as content-based because “it describe[d] permissible 3 picketing in terms of its subject matter,” in that, as here, the 4 “operative distinction [between the permissible and impermissible 5 conduct] is the message.” Id. 6 B. Central Hudson Test for Commercial Speech 7 The district court correctly concluded that, because the 8 Ordinance restricts speech only if it constitutes soliciting of 9 employment, the speech targeted by the Ordinance is commercial 10 speech. It is well settled that speech that is no more than a proposal 11 of possible employment is a “classic example” of commercial speech. 12 Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 13 376, 385 (1973); see also Moldonado v. Holder, 763 F.3d 155, 173 (2d Cir. 14 2014) (Lynch, J., dissenting). 15 commercial speech, which is afforded less protection than other 16 constitutionally safeguarded forms of expression, it is subject to the 17 Central Hudson analysis, to which we now turn.2 Because the Ordinance targets 18 In contrast to the strict scrutiny applied to, for example, core 19 political speech restrictions, the Central Hudson test for commercial 20 speech restrictions is a form of intermediate scrutiny. See Safelite 21 Grp., Inc. v. Jepsen, 764 F.3d 258, 261 (2d Cir. 2014). It requires us to 22 ask: (i) if the Ordinance restricts speech that concerns lawful activity; 23 (ii) if the Town’s asserted interest is substantial; (iii) if the Ordinance 24 directly advances that interest; and (iv) if the Ordinance is more 25 extensive than necessary to serve that interest? Central Hudson, 447 2 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. 12 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page13 of 23 No. 15-2914-cv 1 U.S. at 566. The government bears the burden of justifying the 2 restriction. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n.20 3 (1983). 5 i. The Restricted Speech Concerns Lawful Activity “For commercial speech to come within [the protection of the 6 First Amendment], it at least must concern lawful activity and not be 7 misleading.” 8 concluded that the speech targeted by the Ordinance—the 9 solicitation of employment—“is not in and of itself illegal,” and 10 therefore the speech prohibited by the Ordinance is protected by the 11 First Amendment. 128 F. Supp. 2d at 614. We too conclude that the 12 Ordinance restricts First Amendment protected speech that 13 “concern[s] lawful activity.” 4 Central Hudson, 447 U.S. at 566. The district court 14 The Supreme Court has offered guidance on what it means for 15 speech to “concern lawful activity.” Notably, in Pittsburgh Press, it 16 held a prohibition against gender-based placement of help-wanted 17 ads restricted speech that did not concern lawful activity, concluding 18 that the ads were entitled to no First Amendment protection because 19 “[d]iscrimination in employment . . . is illegal commercial activity.” 20 413 U.S. at 388; see also id. (“We have no doubt that a newspaper 21 constitutionally could be forbidden to publish a want ad proposing a 22 sale of narcotics or soliciting prostitutes.”). The basis for stripping 23 such speech of all First Amendment protection was that “the 24 commercial activity itself is illegal.” Id. at 389. Our cases decided 25 after Pittsburgh Press offer additional clarity. 26 In Swedenburg v. Kelly, 358 F.3d 223 (2d Cir. 2004), rev’d on 27 unrelated grounds, 544 U.S. 460 (2005), we assessed a New York 28 statute prohibiting unlicensed persons from sending into the state 29 “publication[s] of any kind containing an advertisement or a 13 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page14 of 23 No. 15-2914-cv 1 solicitation of any order for any alcoholic beverages.” Id. at 240. 2 New York law prohibited unlicensed persons from shipping alcohol 3 into the state, and New York argued that it interprets its prohibition 4 to apply only to the solicitation of such illegal orders. However, we 5 affirmed invalidation of the statute because its “broad language” 6 also restricted the advertisement (and not just solicitation) of alcoholic 7 beverages. Id. at 240–41. Consequently, because the statute could be 8 applied to restrict speech promoting lawful activity, we held the 9 restricted speech “concerns lawful activity” per Central Hudson. Id. 10 In Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010), we interpreted 11 the “not be misleading” component of Central Hudson’s first prong. 12 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 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page15 of 23 No. 15-2914-cv 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 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page16 of 23 No. 15-2914-cv 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 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page17 of 23 No. 15-2914-cv 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 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page18 of 23 No. 15-2914-cv 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 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page19 of 23 No. 15-2914-cv 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 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page20 of 23 No. 15-2914-cv 1 “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 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page21 of 23 No. 15-2914-cv 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 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page22 of 23 No. 15-2914-cv 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 Case 15-2914, Document 142-1, 08/22/2017, 2106698, Page23 of 23 No. 15-2914-cv 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

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