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

Oyster Bay Town Hall, in Oyster Bay on

Oyster Bay Town Hall, in Oyster Bay on March 27, 2016. Credit: Anthony Lanzilote

A Town of Oyster Bay ordinance restricting day laborers from soliciting work on the streets is unconstitutional, a federal appeals court ruled Tuesday.

The decision upheld a lower court ruling that found the town’s 2009 ordinance violated the First Amendment rights of workers by restricting legally protected commercial speech.

The suit was brought against Oyster Bay by Centro de la Comunidad Hispana de Locust Valley and The Workplace Project, a Hempstead-based nonprofit that advocates for Latino rights, in 2010. In 2015, U.S. District Judge Denis Hurley ruled against the town, which appealed.

“The ordinance restricts speech based on its content and is therefore subject to the First Amendment,” the 2nd U.S. Circuit Court of Appeals in Manhattan held.

Two of the three judges ruled that the ordinance “is an overbroad commercial speech prohibition.”

The ordinance was enacted in response to concerns over day laborers who sought work on Forest Avenue in Locust Valley.

“Oyster Bay enacted an unconstitutional law directed specifically at hard-working day laborers and Latinos in particular,” New York Civil Liberties Union legal director and plaintiffs’ attorney Arthur Eisenberg said in a statement. “It was designed to prevent such workers from entering the town and seeking employment within the town, and the court properly invalidated it.”

The plaintiffs were also represented by Manhattan-based Latino Justice.

The court rejected the town’s argument that the ordinance was concerned with public safety that could arise from cars stopping in the road.

“The ordinance does not require any connection between the prohibited speech — solicitation of employment — and the asserted interest — traffic and pedestrian safety,” the court wrote, noting the lower court had said the ordinance would also apply to “children selling lemonade at the end of a neighbor’s driveway.”

Oyster Bay Town Supervisor Joseph Saladino said Tuesday the town will ask the Supreme Court to consider reviewing the case.

“I cannot understand why any court in this nation would allow illegal aliens to gather on residential streets seeking illegal working while avoiding paying taxes,” Saladino said in a statement. “This is a quality of life issue and I have always been on the side of protecting the safety of our residents, the integrity of our communities and protecting jobs for our citizens.”

Asked how Saladino knew the workers affected by the ordinance did not have legal status, town spokesman Brian Nevin said, “That’s obviously who it is.”

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