Valle Del Sol v. State of Arizona , 709 F.3d 808 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALLE DEL SOL INCORPORATED ; No. 12-15688
C.M., a minor; JOSE ANGEL
VARGAS; COALICION DE DERECHOS D.C. No.
HUMANOS; UNITED FOOD AND 2:10-cv-01061-
COMMERCIAL WORKERS SRB
INTERNATIONAL UNION ; BORDER
ACTION NETWORK; JIM SHEE ; LUZ
SANTIAGO ; ARIZONA SOUTH ASIANS OPINION
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;
2 VALLE DEL SOL V . WHITING
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.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted
October 17, 2012—San Francisco, California
VALLE DEL SOL V . WHITING 3
Filed March 4, 2013
Before: Raymond C. Fisher, Richard C. Tallman and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Fisher
SUMMARY*
Civil Rights
The panel affirmed the district court’s grant of a
preliminary injunction barring the enforcement of two
provisions in Arizona’s Senate Bill 1070, which 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.
The panel held that the district court correctly determined
that, though Arizona has a significant government interest in
promoting traffic safety, the day labor provisions failed the
requirement set forth in Central Hudson Gas & Electric
Corp. v. Public Service Commission of New York, 447 U.S.
557, 566 (1980), that restrictions on commercial speech be no
more extensive than necessary to serve that interest. The
panel held that the district court did not abuse its discretion in
concluding that the plaintiffs were likely to succeed on the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 VALLE DEL SOL V . WHITING
merits and that the other requirements for a preliminary
injunction were satisfied.
COUNSEL
John J. Bouma, Robert A. Henry (argued) and Kelly A.
Kszywienski, Snell & Wilmer L.L.P., Phoenix, Arizona;
Joseph Sciarrotta, Jr., Office of Governor Janice K. Brewer,
Phoenix, Arizona, for Appellants.
Thomas C. Horne, Attorney General, Michael Tryon, Senior
Litigation Counsel, and Evan Hiller, Assistant Attorney
General, Phoenix, Arizona, for Appellant State of Arizona.
Thomas A. Saenz, Victor Viramontes (argued) and Nicholás
Espíritu, Mexican American Legal Defense and Educational
Fund, Los Angeles, California; Omar C. Jadwat and Andre
Segura, American Civil Liberties Union Foundation
Immigrants’ Rights Project, New York, New York; Linton
Joaquin, Karen C. Tumlin, Nora A. Preciado, Melissa S.
Keaney and Álvaro M. Huerta, National Immigration Law
Center, Los Angeles, California; Nina Perales, Mexican
American Legal Defense and Educational Fund, San Antonio,
Texas; Chris Newman and Lisa Kung, National Day Labor
Organizing Network, Los Angeles, California; 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, California; Daniel J. Pochoda and James Duff
Lyall, ACLU Foundation of Arizona, Phoenix, Arizona;
Daniel R. Ortega, Ortega Law Firm, P.C., Phoenix, Arizona;
VALLE DEL SOL V . WHITING 5
Yungsuhn Park, Connie Choi and Carmina Ocampo, Asian
Pacific American Legal Center, a member of Asian American
Center for Advancing Justice, Los Angeles, California, for
Appellees.
Aaron Leiderman, Munger, Tolles & Olson LLP, San
Francisco, California; Bradley S. Phillips, Joseph J. Ybarra,
Benjamin J. Maro, Lika C. Miyake and Margaret G. Ziegler,
Munger, Tolles & Olson LLP, Los Angeles, California, 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, California, for Appellees Service
Employees International Union, Service Employees
International Union, Local 5 and United Food and
Commercial Workers International Union.
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
6 VALLE DEL SOL V . WHITING
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 pre-
existing 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 preliminary injunction barring their enforcement.
1
S.B. 1070 contains other provisions that, although they were
challenged in the same underlying district court action, are not at issue in
this appeal.
VALLE DEL SOL V . WHITING 7
BACKGROUND
The two provisions challenged here were included as part
of Section 5 of Arizona’s recent comprehensive immigration
reform bill, S.B. 1070. See Ariz. 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
2
Specifically, the day labor provisions state:
A. It is unlawful for an occupant of a motor
vehicle that is stopped on a street, roadway or highway
to attempt to hire or hire and pick up passengers for
work at a different location if the motor vehicle blocks
or impedes the normal movement of traffic.
B. It is unlawful for a person to enter a motor
vehicle that is stopped on a street, roadway or highway
in order to be hired by an occupant of the motor vehicle
and to be transported to work at a different location if
the motor vehicle blocks or impedes the normal
movement of traffic.
Ariz. Rev. Stat. § 13-2928(A)-(B).
8 VALLE DEL SOL V . WHITING
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).
VALLE DEL SOL V . WHITING 9
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
Amendment claim. 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 (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., 131 S. Ct. 2653 (2011), required it to apply a
more demanding version of the “not more extensive than
necessary” test to content-based restrictions on commercial
speech. Finding the day labor provisions to be content-based,
the district court applied Sorrell and analyzed whether they
were “drawn to achieve” a substantial government interest.
Applying Central Hudson’s threshold requirement that
speech be related to lawful activity and not misleading, the
court ruled that because day labor is lawful activity,
restrictions on the solicitation of day labor merit First
Amendment scrutiny. Applying the “substantial interest”
prong, the court credited Arizona’s uncontroverted assertion
10 VALLE DEL SOL V . WHITING
that Arizona has a substantial government interest in traffic
safety. Applying the “direct advancement” prong, the court
concluded that the day labor provisions directly advance that
interest because they prohibit traffic-blocking activity that
would otherwise take place. Under the “not more extensive
than necessary” prong, however, the district court first held
that the day labor provisions are content-based restrictions
and then held that the “[d]efendants have not shown that
[they] . . . are drawn to achieve the substantial governmental
interest in traffic safety.” On the contrary, the district court
noted, the ordinance “appears to be structured to target
particular speech rather than a broader traffic problem.” The
court cited the purposes clause of S.B. 1070 and the existence
of obvious and less-burdensome alternatives as further
evidence that the day labor provisions were not drawn to
advance Arizona’s interest in traffic safety.
The district court concluded that the plaintiffs are likely
to succeed on the merits because the day labor provisions are
insufficiently tailored under Central Hudson’s fourth prong
as modified by Sorrell. It then found that the other
requirements for a preliminary injunction (irreparable harm,
balance of the equities and the public interest) were met and
granted a preliminary injunction barring enforcement of the
provisions. The intervenor defendants filed this interlocutory
appeal.
STANDARD OF REVIEW
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res.
VALLE DEL SOL V . WHITING 11
Def. Council, Inc., 555 U.S. 7, 20 (2008). We review an
order granting a preliminary injunction for an abuse of
discretion. See Katie A. ex rel. Ludin v. Los Angeles County,
481 F.3d 1150, 1155 (9th Cir. 2007). “Under this standard,
[a]s long as the district court got the law right, it will not be
reversed simply because the appellate court would have
arrived at a different result if it had applied the law to the
facts of the case.” Thalheimer v. City of San Diego, 645 F.3d
1109, 1115 (9th Cir. 2011) (alteration in original) (quoting
Dominguez v. Schwarzenegger, 596 F.3d 1087, 1092 (9th Cir.
2010), vacated on other grounds by Douglas v. Indep. Living
Ctr. of S. Cal., Inc., 132 S. Ct. 1204 (2012)). “This review is
limited and deferential, and it does not extend to the
underlying merits of the case.” Id. (quoting Johnson v.
Couturier, 572 F.3d 1067, 1078 (9th Cir. 2009)) (internal
quotation marks omitted). When the district court bases its
decision on an erroneous legal standard, we review the
underlying issues of law de novo. See Flexible Lifeline Sys.,
Inc. v. Precision Lift, Inc., 654 F.3d 989, 994 (9th Cir. 2011)
(per curiam). “[W]hen a district court grants a preliminary
injunction protecting First Amendment rights, ‘[i]f the
underlying constitutional question is close . . . we should
uphold the injunction and remand for trial on the merits.’”
Thalheimer, 645 F.3d at 1128 (second alteration in original)
(quoting Ashcroft v. ACLU, 542 U.S. 656, 664–65 (2004)).
DISCUSSION
Day laborers are those who, rather than having a fixed
place of employment, perform temporary work such as
gardening, tree trimming, yard clean-up, moving,
construction work, house cleaning and elder care. Because
such day laborers do not have a fixed place of employment,
they advertise their availability for employment by gathering
12 VALLE DEL SOL V . WHITING
in a visible location and then gesturing to motorists or
otherwise communicating their availability to work. Day
laborers frequently congregate on street corners and
sidewalks, and those who would hire day laborers often stop
in the road to negotiate terms and complete the hire. The day
labor provisions restrict speech by penalizing the solicitation
of day labor work when that solicitation impedes traffic. The
plaintiffs introduced declarations showing that, after the
provisions’ passage but before the district court enjoined
enforcement, employers refrained from hiring day laborers on
public streets and day laborers refrained from soliciting work
from the roadside out of fear of prosecution.
Arizona concedes that the day labor provisions restrict
day laborers’ and would-be employers’ speech. But it argues
the provisions are permissible because it is illegal to block
traffic and because day labor solicitation presents unique
traffic safety concerns that justify special treatment of such
speech when it blocks traffic. Plaintiffs counter that
Arizona’s asserted interest in traffic safety is a sham; that the
true purpose of the provisions is to remove day laborers from
public view and to suppress their economic opportunities.
Regulations that inhibit speech must comport with the
requirements of the First Amendment. We recognize that
Arizona has a significant interest in protecting the safe and
orderly flow of traffic on its streets. We similarly credit
Arizona’s assertion that the roadside solicitation of labor may
create dangerous traffic conditions. The First Amendment
requires more than the invocation of a significant government
interest, however. Rather, it requires that the restriction’s
benefits be balanced against the burden on protected speech.
How we conduct this balancing depends on what type of
speech is regulated and whether the regulation is content-
VALLE DEL SOL V . WHITING 13
based or content-neutral. We shall address these questions
before turning to the ultimate question of whether Arizona’s
interest in traffic safety justifies its restriction on day labor
solicitation.
I.
The district court correctly determined that the day labor
provisions are content-based restrictions on commercial
speech.
A. The Day Labor Provisions Restrict Only
Commercial Speech
Commercial speech is that “which does ‘no more than
propose a commercial transaction.’” Va. State Bd. of
Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.
748, 762 (1976) (quoting Pittsburgh Press Co. v. Pittsburgh
Comm’n on Human Relations, 413 U.S. 376, 385 (1973)).
Such speech is protected by the First Amendment, but to a
lesser degree than other types of speech. See United States v.
United Foods, Inc., 533 U.S. 405, 409 (2001) (“We have used
standards for determining the validity of speech regulations
which accord less protection to commercial speech than to
other expression.”). A motorist who pulls over and either
hires or attempts to hire a day laborer has proposed a
commercial transaction.3 By the same token, a day laborer
3
At oral argument, Arizona argued that the day labor provisions apply
only to consummated transactions and not to negotiations or attempts to
hire a day laborer. That argument is belied by the plain language of
Section 5(A), which explicitly penalizes the “attempt to hire . . . and pick
up passengers for work at a different location.” W e will not apply a
limiting construction that is contrary to the plain language of the statute.
See Bd. of Airport Comm’rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569,
14 VALLE DEL SOL V . WHITING
soliciting work from the roadside proposes a commercial
transaction. Because the day labor provisions are explicitly
limited to attempts to hire, hiring, picking up and transporting
workers to work at a different location, all affected speech is
either speech soliciting a commercial transaction or speech
necessary to the consummation of a commercial transaction.
The plaintiffs, however, argue that day labor solicitation
speech is “core” First Amendment speech because it is
inextricably intertwined with core political and economic
messages. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,
487 U.S. 781, 796 (1988) (holding that commercial speech
does not “retain[] its commercial character when it is
inextricably intertwined with otherwise fully protected
speech”). Plaintiffs may be correct that day laborers convey
vital political and economic messages when they solicit work
from the side of the road, but those messages are not
inextricably intertwined with the speech the day labor
provisions regulate. Nothing in those provisions prohibits a
worker from expressing his views publicly, nor is there any
reason such views cannot be expressed without soliciting
work. See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.
469, 474 (1989) (“No law of man or of nature makes it
impossible to sell housewares without teaching home
economics, or to teach home economics without selling
housewares.”).
Immigration policy and economic equality are matters of
public importance and the mere presence of day laborers on
the street may express something about their own views on
these topics. The presence of day laborers soliciting work in
575 (1987) (refusing to adopt a limiting construction because “the words
of the resolution simply leave no room for a narrowing construction”).
VALLE DEL SOL V . WHITING 15
the streets may also increase the salience of economic or
immigration debates to others who encounter the day
laborers. However compelling these arguments, the Supreme
Court has made clear that “advertising which ‘links a product
to a current public debate’ is not thereby entitled to the
constitutional protection afforded noncommercial speech.”
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 68 (1983)
(quoting Cent. Hudson, 447 U.S. at 563 n.5)). The act of
soliciting work as a day laborer may communicate a political
message, but the primary purpose of the communication is to
advertise a laborer’s availability for work and to negotiate the
terms of such work. The district court correctly concluded
that the day laborer provisions restrict only commercial
speech.
B. The Day Labor Provisions Are Content-Based
Restrictions
The district court also correctly determined that the day
labor provisions are content-based restrictions on commercial
speech. “A regulation is content-based if either the
underlying purpose of the regulation is to suppress particular
ideas or if the regulation, by its very terms, singles out
particular content for differential treatment.” Berger v. City
of Seattle, 569 F.3d 1029, 1051 (9th Cir. 2009) (en banc)
(citation omitted). On their face, the day labor provisions
target one type of speech – day labor solicitation that impedes
traffic – but say nothing about other types of roadside
solicitation and nonsolicitation speech. They are therefore
classic examples of content-based restrictions. Our
conclusion is confirmed by the stated purpose of the
provisions, their legislative history and the disproportionate
sanctions they impose for traffic problems arising from day
labor solicitation. See Sorrell v. IMS Health Inc., 131 S. Ct.
16 VALLE DEL SOL V . WHITING
2653, 2663 (2011) (“Just as the ‘inevitable effect of a statute
on its face may render it unconstitutional,’ a statute’s stated
purposes may also be considered” in determining whether it
is content-based. (quoting United States v. O’Brien, 391 U.S.
367, 384 (1968))); United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803, 812 (2000) (noting that a speech by a bill’s
sponsor supported the Court’s determination that the bill was
content-based); cf. Moss v. U.S. Secret Serv., 675 F.3d 1213,
1224–25 (9th Cir. 2012) (holding that differential treatment
supports an inference of viewpoint discrimination).
The district court reasonably determined that the purpose
of the day labor provisions was to suppress labor-solicitation
speech rather than to promote traffic safety. Significantly, the
purposes clause introducing S.B. 1070 describes it as an
immigration bill, not a traffic safety bill. See S.B. 1070, ch.
113, 2010 Ariz. Sess. Laws § 1 (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 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.”). This clear and unambiguous expression
of purpose contradicts Arizona’s argument that the day labor
provisions are content-neutral traffic regulations. Rather,
they appear expressly intended to deter day labor activity by
undocumented immigrants.
Though not dispositive of legislative intent, portions of
the legislative history also evince hostility to day laborer
solicitation rather than concern with traffic safety. For
instance, State Representative Kavanagh, the day labor
provisions’ principal legislative sponsor, stated at committee
hearings that they would promote traffic safety but that they
VALLE DEL SOL V . WHITING 17
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.”
Finally, the day labor provisions’ punishment is far out of
line with punishments for other similar traffic violations. For
example, conduct that recklessly impedes traffic is punishable
by 30 days’ imprisonment, but day labor solicitation that is
not dangerous or reckless, but merely impedes traffic, is a
class 1 misdemeanor punishable by up to six months’
imprisonment. Compare Ariz. Rev. Stat. § 13-2928(F)
(violation of the day labor provisions is a class 1
misdemeanor), and § 13-707(A)(1) (class 1 misdemeanor
punishable by up to six months’ imprisonment), with § 13-
2906 (recklessly interfering with the passage of any highway
or public thoroughfare is a class 3 misdemeanor), and § 13-
707(A)(3) (class 3 misdemeanor punishable by up to 30 days’
imprisonment). The imposition of a much harsher penalty for
those who block traffic while engaging in labor solicitation
speech evidences the desire to suppress such speech.
Arizona argues that the day labor provisions are content-
neutral because they were enacted to ameliorate “secondary
effects” – the traffic problems created when day laborers
congregate and solicit employment from passing vehicles.
See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48
(1986) (holding that a zoning regulation on adult theaters was
content-neutral because it had been enacted to “prevent
crime, protect the city’s retail trade, maintain property values,
and generally [protect] and [preserve] the quality of [the
City’s] neighborhoods, commercial districts, and the quality
of urban life” (internal quotation marks omitted)). Arizona
18 VALLE DEL SOL V . WHITING
raised this argument before the district court, which implicitly
rejected it by finding that the day labor provisions are
content-based. This rejection was not an abuse of discretion
in light of the facts showing that the purpose of the day labor
provisions was to suppress labor-solicitation speech. Cf. id.
(holding that a content-neutral “‘predominate’ intent[] . . . is
more than adequate to establish that the city’s [purpose] . . .
was unrelated to the suppression of free expression.”).
Arizona’s argument that the day labor provisions are content-
neutral under Hill v. Colorado, 530 U.S. 703, 719–20 (2000),
because they are “justified” by its interest in traffic safety
suffers from the same defect. See ACLU of Nev. v. City of
Las Vegas, 466 F.3d 784, 793 (9th Cir. 2006) (“‘[T]he mere
assertion of a content-neutral purpose [is not] enough to save
a law which, on its face, discriminates based on content.’ . . .
[Instead,] we will hold that [an] ordinance is content-based if
. . . the main purpose in enacting it was to suppress or exalt
speech of a certain content.” (first and second alterations in
original) (emphasis added) (quoting Turner Broad. Sys., Inc.
v. FCC, 512 U.S. 622, 642–43 (1994))).
The district court correctly concluded that the day labor
provisions are content-based restrictions.
II.
The district court also correctly concluded that the day
labor provisions are likely unconstitutional restrictions. We
evaluate restrictions on commercial speech using the four-
part test from Central Hudson:
(1) if the communication is neither misleading
nor related to unlawful activity, then it merits
First Amendment scrutiny as a threshold
VALLE DEL SOL V . WHITING 19
matter; in order for the restriction to withstand
such scrutiny, (2) [t]he State must assert a
substantial interest to be achieved by
restrictions on commercial speech; (3) the
restriction must directly advance the state
interest involved; and (4) it must not be more
extensive than is necessary to serve that
interest.
World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676,
684 (9th Cir. 2010) (alteration in original) (internal quotation
marks omitted) (quoting Metro Lights, L.L.C. v. City of Los
Angeles, 551 F.3d 898, 903 (9th Cir. 2009)). The parties
dispute whether the day labor provisions satisfy Central
Hudson’s first, third and fourth prongs. The parties also raise
the challenging issue of whether Sorrell, 131 S. Ct. at 2664,
2667–68, made the fourth Central Hudson prong for content-
based restrictions on commercial speech even more
demanding for the state. We conclude that the day labor
provisions are deficient under even the pre-Sorrell, arguably
more government-friendly, precedent urged by Arizona. We
will therefore apply that precedent and defer extended
discussion of Sorrell for a more appropriate case with a more
fully developed factual record. We turn to each of Central
Hudson’s four prongs in turn.
A. Day Laborer Solicitation Is Neither Misleading nor
Related to Unlawful Activity
Commercial speech merits First Amendment protection
only if “the communication is neither misleading nor related
to unlawful activity.” World Wide Rush, 606 F.3d at 684
(quoting Metro Lights, 551 F.3d at 903). Arizona argues that
the day labor provisions are permissible because they regulate
20 VALLE DEL SOL V . WHITING
speech only when associated with the unlawful activity of
blocking or impeding traffic. Arizona’s proposed rule would
be a novel extension of Central Hudson’s legality
requirement, which has traditionally focused on the content
of affected speech – i.e., whether the speech proposes an
illegal transaction – instead of whether the speech is
associated with unlawful activity. See Wash. Mercantile
Ass’n v. Williams, 733 F.2d 687, 691 (9th Cir. 1984)
(rejecting the argument that drug paraphernalia’s association
with illegal drug use allows the state to restrict all
paraphernalia advertising; instead holding that paraphernalia
advertising is not protected in states where such sales are
illegal but that paraphernalia advertising warrants First
Amendment scrutiny if the advertising proposes a sale in a
state where such sales are legal). Some decisions have
expressly phrased the legality requirement as whether “the
transactions proposed in the forbidden [communication] are
themselves illegal in any way.” Va. State Bd. of Pharmacy,
425 U.S. at 772; see also Zauderer v. Office of Disciplinary
Counsel of Supreme Court of Ohio, 471 U.S. 626, 638 (1985)
(“The States and the Federal Government are free to prevent
the dissemination of commercial speech that . . . proposes an
illegal transaction . . . .”). Other decisions have used Central
Hudson’s more general “related to unlawful activity”
language. Cent. Hudson, 447 U.S. at 564; see also Fla. Bar
v. Went For It, Inc., 515 U.S. 618, 623–24 (1995) (“Under
Central Hudson, the government may freely regulate
commercial speech that concerns unlawful activity . . . .”).
However it is formulated, we think it clear that Central
Hudson’s legality requirement requires us to evaluate the
content of a commercial message rather than the means by
which that message is conveyed. Here, that means that the
plaintiffs have satisfied the requirement because it is legal to
VALLE DEL SOL V . WHITING 21
hire or be hired for day labor. We find support for this
conclusion both in Pittsburgh Press, the Supreme Court case
upon which Arizona principally relies, and in the Supreme
Court’s explanation in R.A.V. v. City of St. Paul, 505 U.S.
377, 383–84 (1992), of what it means for certain speech to be
“excluded” from First Amendment protection.
Pittsburgh Press, the case from which Central Hudson
drew its legality requirement, considered only the commercial
transaction proposed by an advertisement. There, the
Supreme Court held that a newspaper has no First
Amendment right to publish a discriminatory employment
advertisement. See Pittsburgh Press, 413 U.S. at 388–89.
The Supreme Court reasoned that, just as it would be
permissible to ban an advertisement for narcotics or
prostitution, it was permissible to ban gender-specific job
postings because sex discrimination in hiring is illegal. See
id. at 388. The Court concluded that “[a]ny First Amendment
interest which might be served by advertising an ordinary
commercial proposal and which might arguably outweigh the
governmental interest supporting the regulation is altogether
absent when the commercial activity itself is illegal and the
restriction on advertising is incidental to a valid limitation on
economic activity.” Id. at 389.
In Pittsburgh Press, unlike here, the affected speech
proposed an illegal transaction – the discriminatory hiring of
a worker. The day labor provisions, on the other hand,
regulate speech proposing a legal transaction where the
speech is conducted in an unlawful manner. Nothing in
Pittsburgh Press or any other case Arizona cites suggests that
we should expand our inquiry beyond whether the affected
speech proposes a lawful transaction to whether the affected
speech is conducted in a lawful manner. Moreover, the
22 VALLE DEL SOL V . WHITING
Supreme Court’s discussion in R.A.V. of categorical First
Amendment exemptions cautions that such an expansion
would be improper.
In R.A.V., the Supreme Court discussed its approach to
categorical exemptions from First Amendment scrutiny. It
explained that, although it has sometimes said that the
“protection of the First Amendment does not extend” to
certain categories of speech, that statement is not “literally
true.” R.A.V., 505 U.S. at 383 (quoting Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 504 (1984)).
Instead, what a categorical exclusion means is that, “these
areas of speech can, consistently with the First Amendment,
be regulated because of their constitutionally proscribable
content.” Id. The proposal of an illegal transaction is, like
the obscenity and defamation discussed in R.A.V.,
categorically exempted from First Amendment protection
because it lacks social value. See United States v. Williams,
553 U.S. 285, 297 (2008) (“Offers to engage in illegal
transactions are categorically excluded from First
Amendment protection.” (citing Pittsburgh Press, 413 U.S.
at 388)). The basis of this categorical exclusion is the content
of the speech, not the manner in which that speech is
conducted. See id. (“[O]ffers to give or receive what it is
unlawful to possess have no social value and thus, like
obscenity, enjoy no First Amendment protection.” (citing
Pittsburgh Press, 413 U.S. at 387–89)). Thus, in deciding
whether to apply a categorical exception, we look to the
content of a communication rather than the method of that
communication. Here, the content of the communication –
the solicitation of labor – is perfectly legal.
This approach fits with R.A.V.’s ultimate lesson, which is
that government may not leverage its power to regulate one
VALLE DEL SOL V . WHITING 23
sphere of activity into the ability to favor certain speech
within that sphere. So, though a state may ban all fighting
words, it may not ban only those fighting words that invoke
race, color, creed, religion or gender. See R.A.V., 505 U.S. at
391–96. Similarly, the government may prohibit all outdoor
fires, but it may not specifically prohibit flag burning. Id. at
385 (“[B]urning a flag in violation of an ordinance against
outdoor fires could be punishable, whereas burning a flag in
violation of an ordinance against dishonoring the flag is not.”
(citing Texas v. Johnson, 491 U.S. 397, 406–07 (1989))). In
the commercial speech context, R.A.V. noted that, though a
state may “regulate price advertising in one industry but not
in others, because the risk of fraud . . . is in its view greater
there,” it “may not prohibit only that commercial advertising
that depicts men in a demeaning fashion.” Id. at 388–89
(citations omitted).
Arizona may prohibit pedestrians and motorists from
blocking traffic, and it has done so. See Ariz. Rev. Stat. § 13-
2906(A) (imposing criminal penalties for one who “recklessly
interferes with the passage of any highway or public
thoroughfare by creating an unreasonable inconvenience or
hazard”). But as we discuss below, it may not, consistent
with the First Amendment, use a content-based law to target
individuals for lighter or harsher punishment because of the
message they convey while they violate an unrelated traffic
law. Such disparate treatment implicates the First
Amendment.
In sum, it is legal in Arizona to hire or be hired for day
labor. The day labor provisions limit the ability of day
laborers and employers to solicit, negotiate and consummate
that legally permissible transaction. The district court
therefore correctly held that the day labor provisions are
24 VALLE DEL SOL V . WHITING
subject to First Amendment scrutiny as restrictions on lawful,
nonmisleading speech.
B. Arizona Has Satisfied Central Hudson’s Second
Prong by Demonstrating that it Has a Substantial
Interest in Traffic Safety
Arizona asserts that the day labor provisions are justified
by the state’s desire to promote traffic safety.4 Promoting
traffic safety is undeniably a substantial government interest.
See Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
507–08 (1981) (holding that there can be no “substantial
doubt that the twin goals that the ordinance seeks to further
– traffic safety and the appearance of the city – are substantial
governmental goals”). Arizona has therefore satisfied
Central Hudson’s substantial governmental interest
requirement.
C. The District Court’s Determination that the Day
Labor Provisions Directly Advance Arizona’s Interest
in Traffic Safety Was Not an Abuse of Discretion
Central Hudson’s third prong requires that a restriction on
commercial speech must “directly advance” the state’s
substantial interest. Cent. Hudson, 447 U.S. at 564. One
“consideration in the direct advancement inquiry is
‘underinclusivity . . . .’” Metro Lights, 551 F.3d at 904.
4
Arizona identifies several other substantial interests, including crime
reduction, economic development and protecting the aesthetics of its
communities. As before the district court, Arizona identifies these
interests as substantial but fails to argue that the day labor provisions are
narrowly tailored to achieve them. W e therefore decline to address these
additional interests.
VALLE DEL SOL V . WHITING 25
“Central Hudson requires a logical connection between the
interest a law limiting commercial speech advances and the
exceptions a law makes to its own application.” Id. at 905.
We term a law that distinguishes among types of commercial
speech without such a logical connection “underinclusive.”
As we discuss here, underinclusivity is relevant to Central
Hudson’s direct advancement prong because it “may diminish
the credibility of the government’s rationale for restricting
speech in the first place.” Id. at 904–05 (quoting City of
Ladue v. Gilleo, 512 U.S. 43, 52 (1994)). As we discuss in
Section II.D, infra, underinclusivity is also relevant to
Central Hudson’s narrow tailoring prong.
Above, we held that the day labor provisions are content-
based because they distinguish between day labor solicitation
speech and all other types of roadside solicitation. In Ballen
v. City of Redmond, 466 F.3d 736 (9th Cir. 2006), we struck
down an ordinance that prohibited many commercial signs
but exempted real estate signs, because “[t]he City . . . failed
to show how the exempted signs reduce vehicular and
pedestrian safety or besmirch community aesthetics any less
than the prohibited signs.” Id. at 743. The adoption of a
content-based restriction, absent justification, “indicate[d]
that the City ha[d] not carefully calculated the costs and
benefits associated with the burden on speech.” Id.
The day labor provisions, however, are not automatically
underinclusive simply because they are content-based and fail
to regulate all forms of roadside communication. See Metro
Lights, 551 F.3d at 910 (noting that a regulation that bans
some, but not all, advertising signs is not automatically
underinclusive). Similarly, Arizona may discriminate
between different types of roadside communication if it
determines that roadside labor solicitations present more
26 VALLE DEL SOL V . WHITING
acute safety concerns than other roadside communications.
See id. (holding that the additional danger posed by
“uncontrolled and incoherent proliferation” of offsite signs
was sufficient justification for treating uncontrolled offsite
advertising differently from regulated advertising at transit
stops). Finally, Arizona may consider the benefits of
different types of roadside communications when determining
which communications to restrict. See id. at 910–11
(respecting city’s decision that the value it derives from one
form of advertising, but not another, “is stronger than the
city’s interests in traffic safety and esthetics.” (quoting
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 512
(1981))).
Arizona does not argue that day labor solicitation is less
valuable than other types of roadside solicitation. The inquiry
is therefore whether anything in the record supports Arizona’s
assertion that day labor solicitation creates more acute traffic
safety concerns than other types of roadside communication.
The plaintiffs say no, arguing that jaywalking, protesting,
selling food or goods at the side of the road and a number of
other activities present the same traffic concerns as day labor
solicitation but are unregulated by the day labor provisions.
Arizona counters that the plaintiffs’ assertion is the one
unsupported by the record, which includes news articles,
declarations and photographs of day laborers and vehicles
blocking traffic. We take the point that day labor solicitation
may create traffic safety concerns. This evidence is
nonprobative, however, on the key question of whether those
concerns are more acute than the traffic safety concerns
caused by other types of roadside communication.
Arizona introduced declarations from two former police
officers explaining the particular traffic problems caused by
VALLE DEL SOL V . WHITING 27
day laborer solicitation. Most of the officers’ declarations
discuss the hazards of roadside pedestrian-motorist
communications generally; while they would support
penalizing pedestrian-motorist interactions generally, they do
not support singling out day labor solicitation. One officer
did, however, represent that day laborer interactions require
the parties to negotiate multiple terms, and so take longer
than other types of in-street solicitation. Whether this
statement is admissible, accurate or generally applicable is far
from clear, but at this stage of the proceedings we must
accept it as an asserted fact that might justify harsher
sanctions than for other roadside speech that blocks traffic.
The district court applied the correct legal standard and
determined that the day labor provisions, while
“underinclusive to some degree,” still ban enough traffic-
blocking solicitation that they directly advance Arizona’s
interest in traffic safety. Although the evidence was weak,
the court’s conclusion was not an abuse of discretion.
D. There Is a Substantial Likelihood that Plaintiffs Will
Succeed on Their Claim that the Day Labor Provisions
Restrict More Speech than Necessary to Serve
Arizona’s Interest in Traffic Safety
Finally, Central Hudson requires that a regulation “is not
more extensive than is necessary to serve” a substantial
government interest. 447 U.S. at 566. The test is sometimes
phrased as requiring a “‘reasonable fit’ between
[government’s] legitimate interests” and the means it uses to
serve those interests, City of Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 416 (1993), or that the government
employ a “means narrowly tailored to achieve the desired
objective,” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.
28 VALLE DEL SOL V . WHITING
469, 480 (1989). The district court concluded that the
plaintiffs had established a likelihood of success on their
claim that the day labor provisions are not “drawn to achieve”
Arizona’s substantial interest in traffic safety. The court
derived this standard from Sorrell v. IMS Health, Inc., 131
S. Ct. 2653, 2667–68 (2011), which held that “[t]o sustain [a]
targeted, content-based burden . . . on protected expression,
the State must show at least that . . . the measure is drawn to
achieve that interest.” The parties debate whether this
standard is more stringent than Central Hudson’s formulation
that a restriction must be no “more extensive than is
necessary to serve that interest.” Cent. Hudson, 447 U.S. at
566. At the least, Sorrell articulates the test the Supreme
Court most recently applied to a content-based restriction on
commercial speech, so the district court did not err in
applying it. Whether Sorrell intended to make the
commercial speech test more exacting for the state to meet is
a question that we need not decide, because we conclude
plaintiffs are likely to succeed even under Central Hudson’s
formulation of the standard and our cases interpreting it.
Under those decisions, a restriction on commercial speech
“must not be more extensive than is necessary to serve” a
substantial government interest – i.e., it should not be
overinclusive. World Wide Rush, LLC v. City of Los Angeles,
606 F.3d 676, 684 (9th Cir. 2010) (quoting Metro Lights,
551 F.3d at 903) (internal quotation marks omitted). We
recently evaluated a similar in-street solicitation ban and held
it to be impermissibly overinclusive. See Comite de
Jornaleros de Redondo Beach v. City of Redondo Beach
(Redondo Beach), 657 F.3d 936, 950 (9th Cir. 2011) (en
banc). Redondo Beach applied the “time, place or manner”
test for content-neutral restrictions on core First Amendment
speech. Id. at 945. Like Central Hudson’s for restrictions on
VALLE DEL SOL V . WHITING 29
commercial speech, that test requires that a regulation be
narrowly tailored to serve a significant government interest.
See id. at 948 (“To satisfy the [time, place or manner] narrow
tailoring requirement, ‘the Government . . . bears the burden
of showing that the remedy it has adopted does not burden
substantially more speech than is necessary to further the
government’s legitimate interests.’” (quoting Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994))). Because the
test for commercial speech is “‘substantially similar’ to the
application of the test for validity of time, place, and manner
restrictions,” Redondo Beach provides a helpful framework
for analyzing this case. Fox, 492 U.S. at 477 (quoting S.F.
Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522,
537 n.16 (1987)).
In Redondo Beach, as here, the government sought to
justify an in-street solicitation ban by its interest in traffic
flow and safety. Redondo Beach, 657 F.3d at 947. The ban
applied to all in-street solicitation, regardless of whether the
solicitation blocked traffic. See id. at 941–42. We
recognized, as we do here, that traffic safety is an important
government interest and that solicitation may create
dangerous traffic conditions. See id. at 947–48.
Nevertheless, we held that Redondo Beach’s law was
overinclusive because it restricted more speech than
necessary to serve Redondo Beach’s interest in traffic safety.
See id. at 947–51.
Arizona’s law is less restrictive than Redondo Beach’s
because the day labor provisions regulate only labor
solicitation that blocks traffic, whereas Redondo Beach’s
ordinance regulated all roadside solicitation. Nevertheless,
one line of analysis from Redondo Beach is highly relevant
and persuasive. The Redondo Beach ordinance restricted
30 VALLE DEL SOL V . WHITING
more speech than necessary because “[t]he City has various
other laws at its disposal that would allow it to achieve its
stated interests while burdening little or no speech.” Id. at
949. That holding was based on the longstanding rule that,
because restricting speech should be the government’s tool of
last resort, the availability of obvious less-restrictive
alternatives renders a speech restriction overinclusive. See id.
at 950 (citing Discovery Network, 507 U.S. at 417 n.13 (“[I]f
there are numerous and obvious less-burdensome alternatives
to the restriction on commercial speech, that is certainly a
relevant consideration in determining whether the ‘fit’
between ends and means is reasonable.”); Village of
Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 637
(1980) (“The Village’s legitimate interest in preventing fraud
can be better served by measures less intrusive than a direct
prohibition on solicitation. Fraudulent misrepresentations can
be prohibited and the penal laws used to punish such conduct
directly.”); Schneider v. New Jersey, 308 U.S. 147, 162
(1939) (“There are obvious methods of preventing littering.
Amongst these is the punishment of those who actually throw
papers on the streets.”)).
Plaintiffs have cited a number of preexisting Arizona laws
that could be used to address legitimate traffic safety
concerns without burdening speech. These include Arizona
Revised Statutes Sections 28-873(A) (civil penalties for
stopping or parking a car in various situations), 28-905 (civil
penalties for opening a car door if it interferes with traffic),
and 13-2906(A) (criminal penalties for one who “recklessly
interferes with the passage of any highway or public
thoroughfare by creating an unreasonable inconvenience or
hazard.”). Arizona responds that “the existing traffic laws
had insufficient or no deterrent effect on in-street
VALLE DEL SOL V . WHITING 31
employment solicitation.” This argument misses the point
and is in any event unsupported.
First, Arizona’s substantial government interest is in
traffic flow and safety, not in curbing in-street employment
solicitation. The question is therefore not whether existing
laws are sufficient to deal with in-street employment
solicitation, but rather whether existing laws are sufficient to
deal with the traffic problems that may attend in-street
employment solicitation. Arizona, which bears the burden of
proof on this issue, has introduced no evidence addressing it.
Second, our consideration is not limited to Arizona’s
actual traffic safety regulations, but includes any potential or
actual traffic safety regulations that are obviously available.
See, e.g., Discovery Network, 507 U.S. at 417 (“The fact that
the city failed to address its recently developed concern about
newsracks by regulating their size, shape, appearance, or
number indicates that” the restriction was not narrowly
tailored). As discussed above, Redondo Beach identified a
number of existing laws the city could have invoked that were
broad enough to address the traffic concerns attending in-
street employment solicitation without implicating speech.
See Redondo Beach, 657 F.3d at 949–50 (citing California
ordinances prohibiting jaywalking, stopping in traffic
alongside a red-painted curb, stopping a car “so as to obstruct
the normal movement of traffic,” standing in a roadway “if
such action interferes with the lawful movement of traffic”
and standing or stopping “except as near as is physically
possible to the building line or the curb line”). Our
discussion in Redondo Beach highlights the animating First
Amendment principle that government must consider
pursuing its interests through conduct-based regulations
before enacting speech-based regulations.
32 VALLE DEL SOL V . WHITING
Nothing in the record shows that Arizona could not
effectively pursue its interest in traffic safety by enforcing or
enacting similar kinds of speech-neutral traffic safety
regulations. Therefore, even under the Central Hudson
standard Arizona urges, plaintiffs are likely to succeed on the
merits of their claim that the day labor provisions are
overinclusive because they restrict more speech than
necessary to serve Arizona’s interest in traffic safety.5
The day labor provisions are a poor fit with Arizona’s
interest in traffic safety because, in this context, they are also
underinclusive. As we previously discussed, the district court
did not abuse its discretion in concluding that the day labor
provisions are underinclusive but not so much so that they fail
to directly advance Arizona’s interest in traffic safety. That
the day labor provisions are underinclusive is still relevant,
however, to whether they satisfy Central Hudson’s no-more-
extensive-than-necessary prong. The district court correctly
noted the relevance of underinclusivity to this inquiry and
correctly determined that the provisions’ underinclusivity
contributes to the plaintiffs’ likelihood of success on the
merits. See Metro Lights, 551 F.3d at 905 n.8 (explaining
that underinclusivity is relevant to both whether a speech
restriction directly advances the government’s interest and
whether it is more extensive than necessary).
A statute that “discriminat[es] on the basis of content”
may be “‘more extensive than necessary’ to advance the
government’s interest” if there is no valid reason for the
5
W e reiterate that we consider only the limited record before us and
only as a predictive matter at the preliminary injunction stage. Nothing in
our opinion should be read as foreclosing the parties from introducing
additional evidence as this case proceeds.
VALLE DEL SOL V . WHITING 33
discrimination. Id. (quoting Cent. Hudson, 447 U.S. at 566)
(citing Ballen, 466 F.3d at 743–44). In Ballen, we held that,
where there is no reason related to the government’s asserted
interest for distinguishing based on content, a content-based
law restricts more speech than necessary because it indicates
that the government “has not carefully calculated the costs
and benefits associated with the burden on speech imposed by
its discriminatory, content-based prohibition.” 466 F.3d at
743.
The day labor provisions are content-based restrictions
designed to suppress the economic activity of undocumented
immigrants. Unlike in Ballen, Arizona has proffered at least
some legitimate basis for distinguishing between day labor
solicitation and other roadside communications. See Section
II.C, supra. As noted, however, that justification is only
marginally supported by the record. In its narrow tailoring
analysis, the district court correctly discounted it and
emphasized S.B. 1070’s purposes clause, the fact that the day
labor provisions provide penalties drastically out-of-
proportion to those for other traffic violations and the
legislative record. These factors all support the court’s
conclusion that the day labor provisions are underinclusive
because they are “structured to target particular speech rather
than a broader traffic problem.” That conclusion, whether
under Central Hudson or Sorrell, undercuts Arizona’s
argument that the day labor provisions are narrowly tailored
to serve its interest in traffic safety.
In sum, Arizona could have advanced its interest in traffic
safety directly, without reference to speech. The availability
of such obvious and less-restrictive alternatives makes the
day labor provisions overinclusive. They are also
underinclusive because they draw content-based distinctions
34 VALLE DEL SOL V . WHITING
that appear motivated by a desire to eliminate the livelihoods
of undocumented immigrants rather than to address Arizona’s
interest in traffic safety. Being both overinclusive and
underinclusive, the day labor provisions restrict more speech
than necessary to serve Arizona’s interest in traffic safety.
The district court correctly determined that plaintiffs are
likely to succeed on the merits of their First Amendment
claim.
III.
In addition to likelihood of success on the merits, a court
granting a preliminary injunction must consider the likelihood
of irreparable harm in the absence of preliminary relief, the
balance of equities and the public interest. See Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The
district court considered each of these factors. Its conclusion
that plaintiffs would suffer irreparable harm in the absence of
an injunction was appropriate because “[t]he loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v.
Burns, 427 U.S. 347, 373 (1976). The court correctly found
that the equities tip in favor of the plaintiffs because they
have a significant First Amendment and economic interest in
engaging in solicitation speech and Arizona need not impede
that speech in order to pursue its traffic safety goals. Finally,
the court correctly found that an injunction is in the public
interest because the day labor provisions, if enforced, would
infringe the First Amendment rights of many persons who are
not parties to this lawsuit.
VALLE DEL SOL V . WHITING 35
CONCLUSION
Laws that limit commercial speech must not be more
extensive than necessary to serve a substantial government
interest. The district court correctly determined that, though
Arizona has a significant government interest in promoting
traffic safety, the day labor provisions fail Central Hudson’s
requirement that restrictions on commercial speech be no
more extensive than necessary to serve that interest. The
district court did not abuse its discretion in concluding that
the plaintiffs are likely to succeed on the merits and that the
other requirements for a preliminary injunction are satisfied.
We therefore affirm the preliminary injunction barring
enforcement of the day labor provisions.
AFFIRMED