Valle Del Sol Inc. v. Whiting

• Decision Date: 04 March 2013
• Docket Number: No. 12–15688.,12–15688.
• Parties: VALLE DEL SOL INCORPORATED; C.M., a minor; Jose Angel Vargas; Coalicion De Derechos Humanos; United Food and Commercial Workers International Union; Border Action Network; Jim Shee; Luz Santiago; Arizona South Asians for Safe Families; Japanese American Citizens League; Local 5 Service Employees International Union; Southside Presbyterian Church; Muslim American Society; Tonatierra Community Development Institute; Asian Chamber of Commerce of Arizona; Service Employees International Union; Arizona Hispanic Chamber of Commerce; Pedro Espinoza; Maura Castillo; Maria Morales, Plaintiffs–Appellees, v. Michael B. WHITING; Edward G. Rheinheimer; David W. Rozema; Daisy Flores; Kenny Angle; Derek D. Rapier; Sam Vederman; Richard M. Romley; Matthew J. Smith; Bradley Carlyon; Barbara Lawall; James P. Walsh; George Silva; Shila S. Polk; Jon R. Smith, County Attorneys in their official capacities; Joseph Dedman, Jr.; Larry A. Dever; Bill Pribil; John R. Armer; Preston J. Allred; Steven N. Tucker; Donald Lowery; Joseph M. Arpaio; Tom Sheahan; Kelly Clark; Clarence W. Dupnik; Paul R. Babeu; Tony Estrada; Steve Waugh; Ralph Ogden, County Sheriffs, in their official capacities, Defendants, and State of Arizona; Janice K. Brewer, Intervenor–Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

709 F.3d 808

VALLE DEL SOL INCORPORATED; C.M., a minor; Jose Angel Vargas; Coalicion De Derechos Humanos; United Food and Commercial Workers International Union; Border Action Network; Jim Shee; Luz Santiago; Arizona South Asians for Safe Families; Japanese American Citizens League; Local 5 Service Employees International Union; Southside Presbyterian Church; Muslim American Society; Tonatierra Community Development Institute; Asian Chamber of Commerce of Arizona; Service Employees International Union; Arizona Hispanic Chamber of Commerce; Pedro Espinoza; Maura Castillo; Maria Morales, Plaintiffs–Appellees,

v.Michael B. WHITING; Edward G. Rheinheimer; David W. Rozema; Daisy Flores; Kenny Angle; Derek D. Rapier; Sam Vederman; Richard M. Romley; Matthew J. Smith; Bradley Carlyon; Barbara Lawall; James P. Walsh; George Silva; Shila S. Polk; Jon R. Smith, County Attorneys in their official capacities; Joseph Dedman, Jr.; Larry A. Dever; Bill Pribil; John R. Armer; Preston J. Allred; Steven N. Tucker; Donald Lowery; Joseph M. Arpaio; Tom Sheahan; Kelly Clark; Clarence W. Dupnik; Paul R. Babeu; Tony Estrada; Steve Waugh; Ralph Ogden, County Sheriffs, in their official capacities, Defendants,andState of Arizona; Janice K. Brewer, Intervenor–Defendants–Appellants.

No. 12–15688.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Oct. 17, 2012.

Filed March 4, 2013.

Validity Called into Doubt

Ariz.Rev.Stat. § 13–2928(A)–(B)John J. Bouma, Robert A. Henry (argued) and Kelly A. Kszywienski, Snell & Wilmer L.L.P., Phoenix, AZ; Joseph Sciarrotta, Jr., Office of Governor Janice K. Brewer, Phoenix, AZ, for Appellants.

Thomas C. Horne, Attorney General, Michael Tryon, Senior Litigation Counsel, and Evan Hiller, Assistant Attorney General, Phoenix, AZ, for Appellant State of Arizona.

Thomas A. Saenz, Victor Viramontes (argued) and Nicholás Espíritu, Mexican American Legal Defense and Educational Fund, Los Angeles, CA; Omar C. Jadwat and Andre Segura, American Civil Liberties Union Foundation Immigrants' Rights Project, New York, NY; Linton Joaquin, Karen C. Tumlin, Nora A. Preciado, Melissa S. Keaney and ´Alvaro M. Huerta, National Immigration Law Center, Los Angeles, CA; Nina Perales, Mexican American Legal Defense and Educational Fund, San Antonio, TX; Chris Newman and Lisa Kung, National Day Labor Organizing Network, Los Angeles, CA; Marita Etcubañez and Jessica Chia, Asian American Justice Center, Washington, D.C.; Cecillia D. Wang, American Civil Liberties Union Foundation Immigrants' Rights Project, San Francisco, CA; Daniel J. Pochoda and James Duff Lyall, ACLU Foundation of

Arizona, Phoenix, AZ; Daniel R. Ortega, Ortega Law Firm, P.C., Phoenix, AZ; Yungsuhn Park, Connie Choi and Carmina Ocampo, Asian Pacific American Legal Center, a member of Asian American Center for Advancing Justice, Los Angeles, CA, for Appellees.

Aaron Leiderman, Munger, Tolles & Olson LLP, San Francisco, CA; Bradley S. Phillips, Joseph J. Ybarra, Benjamin J. Maro, Lika C. Miyake and Margaret G. Ziegler, Munger, Tolles & Olson LLP, Los Angeles, CA, for all Appellees except Maria Morales and Service Employees International Union, Service Employees International Union, Local 5, United Food and Commercial Workers International Union and Japanese American Citizens League.

Stephen P. Berzon and Jonathan Weissglass, Altshuler Berzon LLP, San Francisco, CA, for Appellees Service Employees International Union, Service Employees International Union, Local 5 and United Food and Commercial Workers International Union.

Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. 2:10–cv–01061–SRB.

Before: RAYMOND C. FISHER, RICHARD C. TALLMAN and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

FISHER, Circuit Judge:

Two provisions in Arizona's Senate Bill 1070 make it unlawful for a motor vehicle occupant to hire or attempt to hire a person for work at another location from a stopped car that impedes traffic, or for a person to be hired in such a manner. These provisions raise First Amendment concerns because they restrict and penalize the commercial speech of day laborers and those who would hire them. Arizona defends the provisions as traffic safety measures, designed to promote the safe and orderly flow of traffic. We acknowledge that Arizona has a real and substantial interest in traffic safety. Arizona, however, has failed to justify a need to serve that interest through targeting and penalizing day labor solicitation that blocks traffic, rather than directly targeting those who create traffic hazards without reference to their speech, as currently proscribed under the State's preexisting traffic laws. Laws like this one that restrict more protected speech than is necessary violate the First Amendment.¹

Arizona has also singled out day labor solicitation for a harsh penalty while leaving other types of solicitation speech that blocks traffic unburdened. Arizona defends this content-based distinction by invoking the “unique” dangers posed by labor solicitation. That justification is only minimally supported by the record and, tellingly, S.B. 1070's introduction says nothing about traffic safety. Rather it emphasizes that its purpose is to encourage self-deportation by stripping undocumented immigrants of their livelihood. Adopting content-based restrictions for reasons apparently unrelated to traffic safety further supports the conclusion that the day labor provisions restrict more speech than necessary.

Accordingly, the district court did not abuse its discretion in concluding that the plaintiffs were likely to succeed on the merits of their First Amendment challenge to the day labor provisions. We therefore affirm the district court's grant of a preliminaryinjunction barring their enforcement.

Background

The two provisions challenged here were included as part of Section 5 of Arizona's recent comprehensive immigration reform bill, S.B. 1070. SeeAriz.Rev.Stat. § 13–2928(A)–(B) (Sections 5(A) and (B), collectively the day labor provisions). Section 5(A) makes it a crime for an occupant of a motor vehicle to solicit or hire a day laborer if the motor vehicle blocks or impedes traffic. Section 5(B) makes it a crime for a day laborer to enter a motor vehicle to work at a different location if the motor vehicle blocks or impedes traffic.² Following several years of deliberation, the Arizona House of Representatives passed the day labor provisions in February 2010 as a standalone bill. State Representative John Kavanagh, the provisions' principal legislative sponsor, said at committee hearings that the provisions would promote traffic safety but would also discourage the “shadow economy” of day labor and address illegal immigration because “[a] large number of these people are illegal immigrants and this is the way they get work, and this work is one of the anchors that keeps them in the country.” After the day labor provisions passed the Arizona House of Representatives, the Arizona Senate adopted them as an amendment to S.B. 1070, an omnibus immigration bill.

S.B. 1070 includes a purposes clause, common to all sections of the bill, which states that the “intent of [S.B. 1070] is to make attrition through enforcement the public policy of all state and local government agencies in Arizona” and that the “provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” See S.B. 1070, ch. 113, 2010 Ariz. Sess. Laws § 1.

In May 2010, the plaintiffs filed suit in the District of Arizona seeking a declaration that S.B. 1070 is unconstitutional in its entirety. The plaintiffs are various organizations and individuals affected by S.B. 1070. The defendants are various county officials as well as the state of Arizona and Arizona Governor Janice Brewer, who intervened as defendants. In June 2010, the plaintiffs moved for a preliminary injunction, arguing that the day labor provisions violate the First Amendment. They renewed their motion in October 2011, after we held in Comite de Jornaleros de Redondo Beach v. City of Redondo Beach (Redondo Beach), 657 F.3d 936 (9th Cir.2011) (en banc), that a Redondo Beach ordinance restricting all roadside solicitation violates the First Amendment. See id. at 950–51 (holding that the restriction inhibited more speech than necessary to serve the city's goal of promoting traffic safety).

The district court issued a preliminary injunction barring enforcement of the day labor provisions in February 2012. The key issue before the district court was whether the plaintiffs are likely to succeed on the merits of their First Amendmentclaim. The district court first held that Redondo Beach does not control this case because the day labor provisions, unlike the Redondo Beach ordinance, are explicitly limited to commercial speech. The court then evaluated the day labor provisions under the four-pronged test for restrictions on commercial speech the Supreme Court first set out in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Under that test, we first evaluate whether the affected speech is misleading or related to unlawful activity. See World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676, 684 (9th Cir.2010) (quoting Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898, 903 (9th Cir.2009)). If not, the government bears the burden of showing that it has a substantial interest, that the restriction directly advances that interest and that the restriction is not more extensive than necessary to serve the interest. See id. The district court held that Sorrell v. IMS Health, Inc., ––– U.S. ––––, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011), required it to apply a more demanding version of the “not more extensive than necessary” test to...