Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay

15-2914-cv
Centro v. Oyster Bay
1 In the
2 United States Court of Appeals
3 For the Second Circuit
4 ________
5
6 August Term, 2016
7
8 No. 15-2914-cv
9
10 CENTRO DE LA COMUNIDAD HISPANA DE LOCUST VALLEY, AND THE
11 WORKPLACE PROJECT,
12 Plaintiffs-Counter-Defendants-Appellees,
13
14 v.
15
16 THE TOWN OF OYSTER BAY, AND JOHN VENDITTO, Town Supervisor of
17 the Town of Oyster Bay,
18 Defendants-Counter-Claimants-Appellants.
19 ________
20
21 Appeal from the United States District Court
22 for the Eastern District of New York.
23 No. 10-cv-02262 (DRH) ¯ Denis R. Hurley, Judge.
24 ________
25
26 Argued: September 12, 2016
27 Decided: August 22, 2017
28 ________
29
30 Before: JACOBS and PARKER, Circuit Judges, and RESTANI, Judge.*
31 ________
*
Judge Jane A. Restani, of the United States Court of International Trade, sitting by
designation.
No. 15-2914-cv
1 Defendants-Appellants The Town of Oyster Bay and Oyster
2 Bay Town Supervisor John Venditto appeal from a judgment of the
3 United States District Court for the Eastern District of New York
4 (Hurley, Judge). The district court held that an ordinance of the
5 Town of Oyster Bay ostensibly designed to regulate the solicitation
6 of work by day laborers in the Town violated the First Amendment.
7 We affirm.
8
9 Judge Jacobs dissents in a separate opinion.
10
11 ________
12 JONATHAN SINNREICH, Sinnreich Kosakoff &
13 Messina LLP, Central Islip, NY, for Defendants-
14 Counter-Claimants-Appellants The Town of Osyter
15 Bay and John Venditto.
16 ARTHUR EISENBERG , JORDAN WELLS, MARIKO
17 HIROSE , New York Civil Liberties Union
18 Foundation, New York, NY; ALAN LEVINE,
19 JACKSON CHIN, Latino Justice PRLDEF, New
20 York, NY, for Plaintiffs-Counter-Defendants-
21 Appellees Centro de la Comunidad Hispana de Locust
22 Valley and The Workplace Project.
23 ________
24
25
26
27
28
29
30
31
32
2
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.**
10 In 2009, the Town of Oyster Bay’s board passed an ordinance
11 titled “Solicitation from Streets and Sidewalks Prohibited” (the
12 “Ordinance”), which principally imposed the following restriction:
13 It shall be unlawful for any person standing within or
14 adjacent to any public right-of-way within the Town of
15 Oyster Bay to stop or attempt to stop any motor vehicle
16 utilizing said public right-of-way for the purpose of
17 soliciting employment of any kind from the occupants
18 of said motor vehicle.
19 Joint Appendix on Appeal (“App’x”) 466–67.1 The Ordinance
20 exempts the solicitation of a wide variety of “[s]ervice related
21 activities such as taxicabs, limousine service, public transportation
22 vehicles, towing operations, ambulance service and similar uses.”
23 App’x 467.
24 The Ordinance’s stated objective is to protect residents from
25 “the dangers of obstruction, distraction and delays of traffic caused
26 by the solicitation of employment by pedestrians.” App’x 466. The
27 record reflects that the actual impetus for the Ordinance was a desire
28 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
No. 15-2914-cv
1 Specifically, the Town of Oyster Bay sought to restrict the effects of
2 daily gatherings of usually 20–30, but sometimes 50, day laborers
3 soliciting employment along a four-block stretch of Oyster Bay’s
4 Forest Avenue (known as the “Forest Avenue shape-up site”). At an
5 initial public meeting, Oyster Bay residents complained that the day
6 laborers were causing dangerous, congestive, unhygienic, and
7 unsightly conditions. See App’x 734. At a subsequent public
8 hearing, residents spoke both in favor of and against a proposed
9 version of the Ordinance. Certain residents discussed traffic
10 problems created by the laborers’ solicitation, see App’x 801, while
11 others premised their objections on their views as to the laborers’
12 immigration status, see App’x 826.
13 Prior to the Ordinance’s enactment, an investigation was
14 conducted at the direction of Oyster Bay Town Supervisor and
15 Defendant John Venditto. In furtherance of that investigation,
16 Oyster Bay’s Commissioner of Public Safety visited the Forest
17 Avenue shape-up site “between 15 and 20” times, and, among the
18 “numerous and repeated” issues he observed caused by the day
19 laborers’ activities were: (i) automobile and pedestrian traffic
20 congestion leading to hazards, delays, and noise disturbance; (ii) 20
21 to 30 day laborers “swarm[ing]” passing cars; and (iii) impeding and
22 forced re-routing of school busses. App’x 1029–33.
23 The Ordinance was unanimously adopted by the town board
24 in September 2009. However, it has never been enforced and no
25 person has been charged with violating it. App’x 1035.
26 In May 2010, Plaintiffs sued the Town of Oyster Bay and
27 Town Supervisor Venditto (together, the “Town”) under 42 U.S.C. §
28 1983 to enjoin the Ordinance on the ground that it violated the First
29 and Fourteenth Amendments. App’x 128. The District Court found
30 that the Ordinance likely violated the First Amendment and entered
31 a temporary restraining order that was converted into a preliminary
32 injunction. The Town appealed to this Court contending that
33 Plaintiffs’ members who were subject to the Ordinance were illegal
34 immigrants engaging in illegal speech that was not protected by the
4
No. 15-2914-cv
1 First Amendment and, alternatively, that the Ordinance was
2 narrowly tailored and therefore complied with the First
3 Amendment. We affirmed on the ground that the district court had
4 not abused its discretion in converting the temporary restraining
5 order into a preliminary injunction and remanded to the District
6 Court because the record on appeal contained no factual
7 development. Centro de la Comunidad Hispana de Locust Valley v.
8 Town of Oyster Bay, 420 F. App’x 97 (2d Cir. 2011).
9 On remand, the Town moved for partial summary judgment
10 on the ground that Centro lacked standing. The court denied the
11 motion, concluding that Centro adequately established that the
12 Ordinance would impose actionable injuries to Centro as an
13 organization. Centro de La Comunidad Hispana de Locust Valley v.
14 Town of Oyster Bay, 954 F. Supp. 2d 127, 135-36 (E.D.N.Y. 2013).
15 Subsequently, Plaintiffs moved for summary judgment, which the
16 district court granted. Centro de La Comunidad Hispana de Locust
17 Valley v. Town of Oyster Bay, 128 F. Supp. 3d 597 (E.D.N.Y. 2015).
18 That ruling rejected the Town’s argument that Workplace lacked
19 standing, and, after finding that the Ordinance violated the First
20 Amendment, permanently enjoined the Town from enforcing it. The
21 district court’s basis for finding the Ordinance unconstitutional was
22 that although the Ordinance served a legitimate Town interest, it
23 was insufficiently narrow to serve that interest and consequently
24 could not pass muster under the First Amendment commercial
25 speech framework of Central Hudson Gas & Electric Corp. v. Public
26 Service Commission of New York, 447 U.S. 557 (1980). This appeal
27 followed.
28 I
29 “We review de novo both a district court’s grant of summary
30 judgment and its determination of standing.” Nat. Res. Def. Council,
31 Inc. v. U.S. Food & Drug Admin., 710 F.3d 71, 79 (2d Cir. 2013).
32 Summary judgment is proper only where “the movant shows that
33 there is no genuine dispute as to any material fact and the movant is
5
No. 15-2914-cv
1 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We
2 must “constru[e] the evidence in the light most favorable to the non-
3 moving party and draw[] all reasonable inferences in its favor.”
4 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
7 Centro lack standing because they are essentially disorganized ad-
8 hoc interest groups that aim to vindicate generalized grievances
9 rather than redress concrete and imminent harms. The district court
10 concluded that both organizations have standing to challenge the
11 Ordinance because they both established that enforcement of the
12 Ordinance would pose a “perceptible impairment” to their activities.
13 954 F. Supp. 2d at 134–37 (Centro); 128 F. Supp. 3d at 607–09
14 (Workplace).
15 We conclude that the district court correctly held that
16 Workplace has standing. Because this conclusion is a sufficient
17 predicate for federal jurisdiction, we are not called on to consider,
18 and therefore do not reach, the question of whether Centro has
19 standing. It is well settled that where, as here, multiple parties seek
20 the same relief, “the presence of one party with standing is sufficient
21 to satisfy Article III’s case-or-controversy requirement.” Rumsfeld v.
22 Forum of Acad. and Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006); see also
23 Doe v. Bolton, 410 U.S. 179, 189 (1973); Bowsher v. Synar, 478 U.S. 714,
24 721 (1986).
25 It is undisputed that Workplace is an incorporated
26 membership organization based in Nassau County, New York, the
27 same county in which Oyster Bay is located. App’x 990. Its mission
28 is to “end the exploitation of Latino immigrant workers on Long
29 Island and to achieve socioeconomic justice by promoting the full
30 political, economic and cultural participation of those workers in the
31 communities in which they live.” App’x 990. Workplace furthers its
32 mission “with the participation of Latino immigrant workers on
6
No. 15-2914-cv
1 Long Island through community organizing, legal support,
2 education, leadership development, and building worker
3 cooperatives.” App’x at 990.
4 To establish standing, Workplace, as an organization, bore the
5 burden of showing: (i) an imminent “injury in fact” to itself as an
6 organization (rather than to its members) that is “distinct and
7 palpable”; (ii) that its injury is “fairly traceable” to enforcement of
8 the Ordinance; and (iii) that a favorable decision would redress its
9 injuries. Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011) (quoting
10 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); see also Susan B.
11 Anthony List v. Driehaus, 134 S.Ct. 2334, 2342 (2014) (“The party
12 invoking federal jurisdiction bears the burden of establishing
13 standing” (internal quotation marks omitted)). The Supreme Court
14 has held that an organization establishes an injury-in-fact if it can
15 show that it was “perceptibly impaired” by defendant’s actions.
16 Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
17 Consequently, we have repeatedly held that “only a ‘perceptible
18 impairment’ of an organization’s activities is necessary for there to
19 be an ‘injury in fact.’” Nnebe, 644 F.3d at 157 (quoting Ragin v. Harry
20 Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993)); N.Y. Civil
21 Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294 (2d Cir.
22 2011); N.Y. State Citizens’ Coal. for Children v. Velez, 629 F. App’x 92,
23 94 (2d Cir. 2015). Moreover, we have held that where, as here, a
24 party seeks review of a prohibition prior to its being enforced,
25 “somewhat relaxed standing” rules apply. Nat’l Org. for Marriage,
26 Inc. v. Walsh, 714 F.3d 682, 689 (2d Cir. 2013).
27 The Town challenges only the district court’s determination as
28 to the first standing prong, arguing that Workplace failed to
29 establish injuries that were concrete or imminent. We disagree.
30 A. Workplace Established Concrete Injuries
31 Workplace asserted that enforcement of the Ordinance will
32 injure it in three ways. First, enforcement will adversely impact its
33 ability to organize day laborers because the Ordinance will
7
No. 15-2914-cv
1 necessarily disperse and reduce the number of day laborers
2 gathering in Oyster Bay. Second, enforcement will require
3 Workplace to divert resources from other of its activities to combat
4 the effects of the Ordinance. And third, enforcement will expose its
5 advocates to risk of arrest because those enforcing the Ordinance
6 cannot differentiate between advocacy activities and the day
7 laborers’ solicitation. Tellingly, the Town essentially concedes that
8 those injuries could confer standing, but argues primarily that
9 Workplace has not shown they have occurred.
10 But the Supreme Court has been clear that in a pre-
11 enforcement action such as this “the injury required for standing
12 need not be actualized. A party facing prospective injury has
13 standing to sue where the threatened injury is real, immediate, and
14 direct.” Davis v. F.E.C., 554 U.S. 724, 734 (2008). Workplace has met
15 this standard. It presented evidence identifying the concrete and
16 particularized injuries that the Ordinance will impose.
17 The record demonstrates that Workplace’s activities include
18 traveling to day laborer sites in Oyster Bay to speak with laborers
19 and if the Ordinance achieves one of its principal
20 objectives—disbursement of day laborers—Workplace will
21 inevitably face increased difficulty in meeting with and organizing
22 those laborers. App’x 991. We have held that an organization
23 shows injury-in-fact where, as here, a “policy has impeded, and will
24 continue to impede, the organization’s ability to carry out [its]
25 responsibilit[ies].” N.Y. Civil Liberties Union, 684 F.3d at 295; see also
26 Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d
27 936, 943 (9th Cir. 2011).
28 Relatedly, it is also clear that the Ordinance will force
29 Workplace to divert money from its other current activities to
30 advance its established organizational interests (i.e., if the laborers
31 are dispersed, it will be more costly to reach them). In fact,
32 Workplace offered unrebutted testimony that it has already had to
33 devote attention, time, and personnel to prepare its response to the
34 Ordinance. App’x 956–57. And, where an organization diverts its
8
No. 15-2914-cv
1 resources away from its current activities, it has suffered an injury
2 that has been repeatedly held to be independently sufficient to
3 confer organizational standing. See Havens Realty Corp., 455 U.S. at4 379 (a “concrete and demonstrable injury to [an] organization’s
5 activities—with the consequent drain on the organization’s
6 resources—constitutes far more than simply a setback to the
7 organization’s abstract social interests”); see also Olsen v. Stark Homes,
8 Inc., 759 F.3d 140, 158 (2d Cir. 2014); Nnebe, 644 F.3d at 157; Ragin, 6
9 F.3d at 905. Significantly, the Supreme Court has recently reaffirmed
10 Havens Realty’s holding that a nonprofit organization establishes an
11 injury-in–fact if, as here, it establishes that it “spent money to
12 combat” activity that harms its organization’s core activities. Bank of
13 Am. Corp. v. City of Miami, 137 S.Ct. 1296, 1303 (2017).
14 Finally, Workplace offered evidence that those responsible for
15 enforcing the Ordinance are likely to confuse the conduct of
16 Workplace’s activists with that of the day laborers. See App’x 727–78
17 (testimony from a Town law enforcement officer that he is unable to
18 distinguish day laborers from activists in a photo taken at a shape-
19 up site); App’x 958–60 (testimony from Workplace activist that she
20 fears her activism will be mistaken for conduct prohibited by the
21 Ordinance). As the district court concluded, not only might this
22 create a risk of erroneous arrest, it makes it “perceptible that
23 enforcement of the Ordinance would prevent Workplace from
24 engaging in counseling at shape-up sites within the Town and thus
25 impair its advocacy activities.” 128 F. Supp. 3d at 609.
26 As discussed, each of Workplace’s demonstrated injuries are
27 sufficient to constitute an injury-in-fact. In light of these
28 considerations, we conclude that Workplace has shown that the
29 Ordinance threatens the requisite “perceptible impairment” of its
30 activities and thus imposes concrete injuries for purposes of federal
31 jurisdiction.
9
No. 15-2914-cv
1 B. Workplace Established Imminent Injuries
2 The Town next argues that even if the Ordinance could affect
3 advocates working on behalf of day laborers in the ways Workplace
4 asserts, Workplace has not shown that it will conduct such work
5 within the relevant area of Oyster Bay. Br. of Appellants 33–34.
6 Consequently, according to the Town, any potential injury to
7 Workplace is not imminent. We disagree.
8 The record establishes that Workplace had substantially more
9 than an imminent intention to engage in the activity that would
10 subject it to the injuries it asserted. Workplace has actively worked
11 in Oyster Bay and actively campaigned against the Ordinance on
12 behalf of its members. This conduct amounted to much more than a
13 “‘some day’ intention” or a “vague desire” to engage in the activities
14 that will subject it to its asserted injuries. See Summers v. Earth Island
15 Inst., 555 U.S. 488, 496 (2009). The case law makes clear that
16 Workplace’s injuries are sufficiently imminent. In Davis, 554 U.S. at17 734, for example, Justice Alito, writing for a majority of the court,
18 held that a political candidate faced injury sufficiently imminent to
19 challenge campaign disclosure requirements by simply declaring his
20 intention to run for office and to spend more than the amount for
21 which disclosure was required. Here, Workplace has done at least
22 as much as what passed muster in Davis and, as a consequence, has
23 established imminent injuries. In sum, Workplace established its
24 standing.
25 III
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. We conclude that the
30 Ordinance is a content-based restriction, specifically, a restriction on
31 commercial speech. So finding, we then assess whether the
10
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.” This is a content-based
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
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). Because the Ordinance targets
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
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
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).
4 i. The Restricted Speech Concerns Lawful Activity
5 “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.” Central Hudson, 447 U.S. at 566. The district court
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.”
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
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. To combat underage drinking, Virginia’s Alcoholic
26 Beverage Control Board prohibited “college student publications”
27 from advertising alcoholic beverages. Two student newspapers
28 sued. The Fourth Circuit concluded that the prohibition was a
29 restriction on commercial speech that concerned lawful activity. It
30 concluded as such because even though the newspapers’ readers
14
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
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.
17 128 F. Supp. 3d at 615. We are in accord, and, consequently, we
18 conclude that the Ordinance restricts speech concerning lawful
19 activity.
20 ii. The Town’s Asserted Interest is Substantial
21 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). This interest is
26 substantial under Central Hudson. See, e.g., Metromedia, Inc. v. City of
27 San Diego, 453 U.S. 490, 507 (1981).
16
No. 15-2914-cv
1 iii. The Ordinance Directly Advances That Interest
2 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.” For good reason, this prong is
8 largely unchallenged by Workplace. Clearly, prohibiting
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. Although the Ordinance may be
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).
17 iv. The Ordinance is Not Narrowly Drawn
18 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).
28 The district court correctly concluded that the Town failed to
29 meet this obligation. It held that the Ordinance is “extremely far-
17
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. Even a person standing on the
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
18
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). Here, it is without question that Workplace’s activities
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, 632 (1980) (basic First Amendment activities include
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
19
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
No. 15-2914-cv
1 doubts about whether Florida is, in fact, serving, with this statute,
2 the significant interests which appellee invokes.”). And, as
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.
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
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. Dissenting op. at 15–19. This
27 contention is the exclusive concern of our dissenting colleague, not
28 of the parties. Plaintiffs have sought invalidation of the entire
29 Ordinance since the inception of this litigation. During the seven
30 years that this litigation has been pending, the Town has never
22
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. In any
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 CONCLUSION
13 The judgment of the district court is AFFIRMED.
23
DENNIS JACOBS, Circuit Judge, dissenting:
I respectfully dissent.
This case was brought by two plaintiffs; one is an organization that seems
not to exist except as a vehicle for this litigation; the other is an organization that
claims standing by casting some of its own elective (and slight) conduct as injury,
and by speculating about future harm that it is unlikely to incur. I would
therefore order dismissal for lack of standing. Beyond that (if one can get beyond
that), the injunction entered by the district court is more broad than the First
Amendment violation found can justify, and is obviously formulated to remedy
harms that were not found and were in any event not inflicted on these plaintiffs.
The mess is unusually thick.
An Ordinance of the Town of Oyster Bay bars pedestrians from soliciting
work from areas adjacent to a roadway and bars drivers from pulling over to
pick them up. The complaint alleges that the Ordinance, which seems clearly
aimed at conditions created by the recruitment of day laborers, violates rights of
free speech, equal protection, and due process. The district court found that the
bar on solicitation violates the First Amendment and declined to reach other
claimed grounds for relief. Unaccountably, however, the district court enjoined
the enforcement of the entire Ordinance—including its regulation of drivers,
which has no First Amendment ramification. The majority on appeal affirms the
injunction in whole, and finds jurisdiction on the basis that one of the
organizations had standing (without reaching the standing of the other). Because
I would dismiss for lack of standing, I reach the standing question as to both
plaintiff organizations.
I
According to the complaint, plaintiff Centro de la Comunidad Hispana de
Locust Valley (“Centro”) is an “unincorporated membership organization.” That
is a boast. It has no organization to speak of: no charter, no bylaws, no bank
accounts, no funding, no expenditures. And it seems to have no members:
anybody who shows up at a meeting (if there are any) is deemed a member; the
only member identified in the record is one Luz Torres, who is the chairperson of
whatever it is; and she conceded at deposition that “we don’t have membership.”
This supposed organization was formed (according to Torres) at a
community meeting a few months after the Town of Oyster Bay adopted the
challenged Ordinance. Although Torres says that Centro has some other
generalized reasons to exist, she admits that the Ordinance was “the principal
2
reason” it was formed. App. 529. That is easily demonstrated. There has been
for twenty years an organization of similar name (Centro Cultural Hispano de
Oyster Bay y Vecindades), of which Torres was a co-founder; Torres proposed
that it sue the Town over the Ordinance; and only after at least some portion of
the board disapproved did Torres think of creating a new organization.1 A
document memorializing a community meeting shortly before (new) Centro’s
supposed formation includes bullet points of items discussed: the first bullet
point is “Create an organization that is responsible and will support us”; and the
third bullet point is “File the lawsuit.” (The second and fourth agenda items are
“Be united to reach our goals” and “Attend Meetings.”)2 Aside from Torres,
attendees of the formational meeting are described in the record only generically,
and prominently among them are “the lawyers.” App. 541. The record does not
1
It is unclear whether the board formally declined to sue the Town or if Torres
voluntarily withdrew the proposal after encountering opposition. Reasons for declining
are not stated in the record, though they might be inferred from the fact that the
organization has a long-standing (and apparently ongoing) relationship with the Town,
which grants it free use of facilities and provides funds for its English classes and youth
programs.
2
This document and the portion of the deposition transcript that includes the
admission that Centro has no membership are filed under seal as part of a “Confidential
Appendix.” The reason for confidentiality is obscure, and suppression is contrary to the
public interest. Confidentiality was not required to preserve the privacy of members,
who are not listed if indeed they exist.
3
say what the lawyers were doing there, but they were evidently not helping
Centro to incorporate, since it is unincorporated.
Everything supports the inference that Centro is a special-purpose
litigation vehicle, created to bring this lawsuit. It is unclear whether it has done
anything else in the seven years since it filed the complaint.3 This pretext does
not satisfy Article III, which requires that “the decision to seek [judicial]
review . . . be placed in the hands of those who have a direct stake in the
outcome,” and not “in the hands of concerned bystanders, who will use it simply
as a vehicle for the vindication of value interests.” Diamond v. Charles, 476 U.S.
54, 62 (1986) (internal citation and quotation marks omitted). Centro cannot
suffer actual or threatened injury if it exists only as the vehicle for this litigation,
or as the alter-ego of some concerned bystander.
II
The second plaintiff, The Workplace Project, was apparently enlisted as a
hedge against the court’s realization that Centro lacks standing. Workplace is a
real organization that has existence and function outside this litigation. But it is
not based in the Town of Oyster Bay; it is in the Town of Hempstead, which is (of
3
A Google search for “Centro de la Comunidad Hispana de Locust Valley”
returns about 250 results, all of which pertain to this litigation.
4
course) not subject to the challenged Ordinance. It claims nevertheless that the
scope of its mission encompasses all of Long Island, and it asserts standing on
three grounds. Of the three, the district court premised standing solely on the
idea that the Ordinance might be (erroneously) enforced against Workplace or its
agents if its organizing and counseling activities are mistaken for roadside
employment solicitation. The district court did not consider the other two other
injuries claimed by Workplace as a pretext for standing: that the Ordinance
harms its mission to serve day laborers by either dispersing them or reducing
their number; and that its effort to fight the Ordinance diverts resources from its
other activities. The majority is convinced that each of these three purported
injuries is real and independently sufficient to confer standing. But none of them
constitutes “an ‘injury in fact’—an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citation
and quotation marks removed).
The risk of mistaken enforcement against the organization’s advocates is a
fine example of a conjectural and hypothetical harm—I suppose it could
5
materialize, but it has not, and it might never. That is no “actual or imminent”
injury.4
The supposed interference with the organizational mission of serving day
laborers is conjectural, vague, and generalized. Worse, if it were sufficient, a
pop-up organization could gin up standing by alleging a mission to oppose any
law it wished to challenge. The majority is persuaded that by dispersing Oyster
Bay’s day laborers, the Ordinance will make it harder for Workplace to meet with
them; but this would be an indirect and remote consequence, even assuming that
Workplace operates in the Town of Oyster Bay. These arguments fail to establish
“the irreducible constitutional minimum of standing.” Id.The argument that the Ordinance injures Workplace by diverting its
resources from other activities relies on a line of cases beginning with Havens
Realty Corp. v. Coleman, 455 U.S. 363 (1982), and culminating in Nnebe v. Daus, 644
F.3d 147 (2d Cir. 2011). The thrust of those cases (as to organizational standing)
4
To show imminence, the majority cites Davis v. F.E.C., 554 U.S. 724 (2008), which
“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.” Op. 8. The
candidate in Davis thus challenged a law that would apply to him, whereas here, a law
that does not apply to the plaintiff is challenged because the plaintiff thinks it might be
enforced against it by mistake.
6
is that even the slight diversion of resources to remedy some harm or to fight
some harmful conduct or policy can constitute an injury-in-fact sufficient to
confer standing if the injury is perceptible, concrete, and demonstrable. In those
cases, however, the organizational plaintiff did not put itself in the way of harm
as a pretext to achieve standing; rather, the challenged conduct or policy came
unbidden to the organizational plaintiff, and diverted its limited resources. The
distinction raises the problem of “manufactured” standing that is identified by
the court in Nnebe. Synthetic standing was not found in that case; but it is
present in this one, and the majority therefore distorts rather than applies those
cases.
In Havens Realty, the organizational plaintiff provided housing counseling
services to homeseekers of limited means, and investigated complaints of
discrimination. The Supreme Court held that if the defendants’ alleged racial-
steering practices “perceptibly impaired” the organization’s ability to provide its
counseling and referral services, then “there can be no question that the
organization has suffered injury in fact. Such concrete and demonstrable injury
to the organization’s activities—with the consequent drain on the organization’s
7
resources—constitutes far more than simply a setback to the organization’s
abstract social interests.” 455 U.S. at 379 (citation omitted).
In Nnebe, the organizational plaintiff was a taxi-drivers’ union; it had
standing to challenge a license-suspension policy of the Taxi and Limousine
Commission because it counseled those of its own members who were
potentially affected, helped them obtain lawyers, and impressed upon the
lawyers the heightened stakes that resulted from the policy. 644 F.3d at 157. We
reasoned that the union needed to allocate resources to assist its members once
the city initiated proceedings against them, and that need—which the union did
not invite, choose, or provoke—created an injury sufficient for standing.
The organizational plaintiffs in those cases had their activities perceptibly
impaired by the conduct or policy they challenged, and they diverted at least
some of their limited resources to remedy the harm that the conduct or policy
imposed. That is, the challenged conduct or policy arrived at the organization’s
door and either created new work for it or burdened the work it was already
doing.
In this case, the only evidence that the Ordinance touched Workplace in
any way is: the testimony of two people who worked for Workplace and who
8
believe that some third employee visited day laborers in Oyster Bay at some time
in the past, though they are vague about when and where and for what purpose,
App. 937–38, 944–51; that some Workplace personnel attended a rally against the
Ordinance, id. 947–48; and that Workplace “had to put some time into finding out
about the ordinance” and tried “to support [Centro]” and “work on that issue to
some degree,” id. 956.
None of that is a cognizable injury to Workplace. The crucial question is
whether any of it required curtailing Workplace’s normal work; but as to that,
the testimony was “I don’t remember.” Id. 957. The Ordinance may represent “a
setback to [Workplace]’s abstract social interests,” Havens Realty, 455 U.S. at 379,
but mere organizational opposition does not constitute organizational injury.
Even if Workplace invokes the “perceptible impairment” standard of Havens
Realty and Nnebe, those cases do not relieve plaintiffs of the constitutional
requirement of showing injury that is “concrete and particularized” and “actual
or imminent.” Lujan, 504 U.S. at 560.
In sum, the majority opinion premises standing on purported
organizational injury that is speculative and generalized, and—to the extent that
it exists—both elective and negligible. Workplace has not shown that the
9
Ordinance inflicts unbidden injury on it as an organization, and it therefore does
not have standing as an organization to bring this litigation.
III
This case, of course, is not about injury to any organization. To the
contrary, the complaint affirmatively alleges that this is “a civil rights action
about the ability of predominantly Latino, immigrant day laborers to exercise
their right to solicit work on the streets and sidewalks of their towns and villages
without fear of being targeted because of their race and national origin.” App.
115. In other circuits, an organization composed of members with standing (such
as day laborers in Oyster Bay) can itself have standing in cases under the Civil
Rights Act; but the precedent of this Circuit forecloses such representational
standing. Since we (and apparently we alone) prevent representational standing,
we require that in such cases the organization show injury to itself as an
organization. The result has been an erosion over time of what constitutes
institutional injury as we try to replicate representational standing by other
means. This distortion explains what has happened in this case, in which
“perceptible” impairment is treated merely as the opposite of “imperceptible,”
and in which we dispense altogether with the constitutional requirement of
10
injury that is both “concrete” and “demonstrable,” and either “actual” or
“imminent.”
The rule in this Circuit—that an organization lacks standing to sue under
the Civil Rights Act for violations of the rights of its members—was adopted
over forty years ago in a case that may have outlived its usefulness. In Aguayo v.
Richardson, 473 F.2d 1090 (2d Cir. 1973), this court reasoned that the statute
“confers a cause of action on ‘any citizen of the United States or other person
within the jurisdiction thereof’ who has been deprived under color of state law
‘of any rights, privileges, or immunities secured by the Constitution and laws,’”
and that “[n]either this language nor the history” of the statute suggests that
organizations can sue in the place of others. Id. at 1099. The court cited Hague v.
CIO, 307 U.S. 496 (1939), in which the Supreme Court dismissed organizational
plaintiffs (while affirming a holding in favor of individual plaintiffs) on the
ground that the Privileges and Immunities Clause, 307 U.S. at 514, and the liberty
guarantee of the Due Process Clause, id. at 527, apply only to “natural, not
artificial, persons.” Id.11
Hague thus suggests that organizations cannot sue on their own behalf
(because they lack the rights they would seek to vindicate);5 but it says nothing
about whether they can stand in the place of their members. And two years after
Aguayo, the Supreme Court observed (albeit in dicta) that “[e]ven in the absence
of injury to itself, an association may have standing solely as the representative
of its members” if its members are harmed. Warth v. Seldin, 422 U.S. 490, 511
(1975). The Supreme Court later cited Warth when it formulated a three-part test
for this “representational” or “associational” standing:
an association has standing to bring suit on behalf of its members
when: (a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted nor the
relief requested requires the participation of individual members in
the lawsuit.
Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).
Did Warth and Hunt abrogate Aguayo? Hunt was not a § 1983 case, though
it relied on Warth, which was; and the relevant portion of Warth is dicta.
Nevertheless, several of our sister circuits, unburdened by Aguayo, have applied
the Hunt test for representational standing in § 1983 cases. See, e.g., Nat’l Fed’n of
5
The Supreme Court has lately taken a more expansive view of the rights of
artificial persons. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014);
Citizens United v. FEC, 558 U.S. 310 (2010).
12
Blind of Mo. v. Cross, 184 F.3d 973, 981 (8th Cir. 1999); Retired Chi. Police Ass’n v.
City of Chicago, 7 F.3d 584, 600–07 (7th Cir. 1993); Contractors Ass’n of E. Pa., Inc. v.
City of Philadelphia, 945 F.2d 1260, 1264–66 (3d Cir. 1991); Md. Highways
Contractors Ass’n, Inc. v. State of Maryland, 933 F.2d 1246, 1251–53 (4th Cir. 1991);
Associated Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equity, 950 F.2d 1401,
1405–09 (9th Cir. 1991). The Fifth and Sixth Circuits have expressly held that
organizations possess standing to sue under § 1983 for violations of the rights of
their members in such circumstances. See Church of Scientology v. Cazares, 638
F.2d 1272, 1276–77 (5th Cir. 1981); Memphis Am. Fed’n of Teachers v. Board of Educ.,
534 F.2d 699 (6th Cir. 1976).6
This Circuit has adhered to Aguayo without ever expressly considering the
impact of Warth or Hunt. See League of Women Voters v. Nassau County Board of
Supervisors, 737 F.2d 155, 160–61 (2d Cir. 1984) (“This Circuit has restricted
organizational standing under § 1983 by interpreting the rights it secures to be
personal to those purportedly injured. . . . Necessarily, we adhere to our prior
6
Additionally, one district court in this circuit held (in a decision that was
evidently never appealed) that “[t]he premises upon which the Aguayo decision was
based . . . are no longer viable in light of” Warth and Hunt. Huertas v. E. River Hous.
Corp., 81 F.R.D. 641, 651 (S.D.N.Y. 1979) (Carter, J.).
13
decisions . . . .”). Nnebe likewise followed Aguayo (this time over the objection
that it had been cast into doubt by Warth), observing in a footnote that
we reaffirmed the Aguayo rule in League of Women Voters nine years
after Warth and have not since reconsidered it. Accordingly, we are
bound by the implicit determination of prior panels that the rule
survives Warth ‘until such time as [our prior decisions] are overruled
either by an en banc panel of our Court or by the Supreme Court.’
644 F.3d at 156 n.5 (quoting United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir.
2004)) (emphasis added).
We continue to rely on that “implicit determination.” Nnebe posits that we
await Second Circuit in banc review to overrrule Aguayo (or, presumably, even to
consider for the first time explicitly whether its rule is abrogated by Warth and
Hunt). But that may be a vain hope given the desuetude of our in banc practice.
In the meantime, our indulgence of increasingly tenuous and pretextual claims of
injury to organizations themselves now threatens to swallow Article III
limitations: the majority opinion holds, in essence, that an organization can
achieve standing to challenge a law relevant to its mission by “allocating
resources” to learning about the law and attending a protest rally.
The plaintiffs preserve by footnote the argument that they have
representational standing, noting that “Aguayo is contradicted by subsequent
14
Supreme Court authority . . . and is inconsistent with the principles underlying
§ 1983.” Appellee Br. 51 n.16. They may be right about Aguayo, and a time may
come when we rethink organizational standing, or when the Supreme Court does
an intervention.
IV
Since on this record no plaintiff has shown standing, I would go no further.
The majority does go further, however; and while there is appreciable merit to its
analysis, it affirms a remedy considerably broader than that analysis can support.
The consistent focus of the majority opinion is the First Amendment rights
of people soliciting work while standing at the roadside. The speakers whose
rights are at issue are the people who are saying (as the majority puts it), “hire
me,” Op. 9, and the restriction on that commercial speech is the premise for all
that follows (right up to the examples of a lemonade stand and the veteran who
will work for food), Op. 16–17. This, it seems to me, is sound as far as it goes.
Even the “conduct component” of attempting to stop vehicles is essentially
expressive since all a pedestrian can do from the lawful vantage of a sidewalk is
signal availability to passing drivers. The persuasive force of this analysis has
bearing on subdivision C of the Ordinance, which restricts the conduct of
15
persons adjacent to the roadside. It does not, however, support an injunction
against enforcement of the Ordinance as a whole, which in subdivision D
regulates traffic, and in particular the conduct of the truck-drivers, who are not
engaged in speech.
“[T]he normal rule [is] that partial, rather than facial, invalidation is the
required course,” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985), and we
therefore “should refrain from invalidating an entire statute when only portions
of it are objectionable.” Nat’l Advert. Co. v. Town of Niagara, 942 F.2d 145, 148 (2d
Cir. 1991). Severance is a question of state law, and New York follows the
standard described by Justice Cardozo:
The principle of division is not a principle of form. It is a
principle of function. The question is in every case whether
the Legislature, if partial invalidity had been foreseen, would
have wished the statute to be enforced with the invalid part
exscinded, or rejected altogether. The answer must be reached
pragmatically, by the exercise of good sense and sound
judgment, by considering how the statutory rule will function
if the knife is laid to the branch, instead of at the roots.
People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 60 (1920). The
Ordinance contains separate commands, separately lettered, and the separate
command of subdivision D can operate independently. It can hardly be doubted
16
that the Town would wish to enforce this traffic rule: as the majority opinion
recognizes, the Town’s asserted interest is substantial, Op. 14, and the Ordinance
directly advances that interest, Op. 15.
According to the Town, the goal of the Ordinance is to fix the traffic and
safety problems that arise when trucks stop along a roadway to pick up day
laborers. This problem is addressed directly by subdivision D, which applies to
drivers only. And since driving is not speech, subdivision D does not burden
speech—and it raises no thorny problems (arguably raised by subdivision C)
such as the uncertain scope of proscribed conduct or discriminatory enforcement.
This is fully consistent with the majority’s analysis: the conclusion that the
Ordinance is overbroad would be strengthened by the observation that the Town
can advance its important governmental purpose just as well without the
offending subsection C.
True, the parties have not argued or briefed severability, but severance is
unlike ordinary defenses, which are abandoned unless raised; a severance issue
arises only when a court finds a statutory infirmity and must craft a remedy, and
the issue inheres in the judicial act of ordering a remedy. Sua sponte invocation
of this prudential rule may be a case-by-case decision, but when a plaintiff seeks
17
an injunction more broad than necessary to remedy the wrong that is found, it is
prudent to tailor the injunction (or revisit it) even if the defendant imprudently
made all-or-nothing arguments.
Waiver is a prudential doctrine, and its invocation here would conflict
with the “general rule [that] a court should refrain from invalidating an entire
statute when only portions of it are objectionable.” Nat’l Advert. Co., 942 F.2d at
148. “Our right to destroy is bounded by the limits of necessity. Our duty is to
save unless in saving we pervert.” Alpha Portland Cement Co., 230 N.Y. at 62–63.
The Supreme Court has instructed that, ordinarily, “partial, rather than facial,
invalidation is the required course.” Brockett, 472 U.S. at 504 (emphasis added).
The appellees’ brief in Brockett argued that the appellants should be precluded
from raising severability because they failed to raise it below (Brockett, Appellees
Br. at 44 (1984 WL 565782)); yet Brockett did not consider waiver, and held that
“severability is no obstacle to partial invalidation, which is the course the Court
of Appeals should have pursued.” 472 U.S. at 507 (emphasis added).7
7
The Supreme Court’s decision in Legal Services Corp. v. Velazquez, 531 U.S. 533(2001), is not to the contrary. In that case, the Second Circuit had invalidated only a
portion of a statute, and because the parties did not discuss the severability
determination at the Supreme Court, that Court “in the exercise of [its] discretion and
prudential judgment . . . decline[d] to address it.” Id. at 549. There is a difference,
however, between an exercise of discretion and prudence that leaves in place part of a
law, and one that invalidates more of a law than necessary.
18
If some plaintiff had standing, and if the majority were correct at every
other point in its opinion, the proper remedy would be severance and an
injunction limited to subdivision C of the Ordinance. Of course, the overbreadth
of the injunction here is no drafting error. The transparent purpose of seeking an
injunction to protect the expressive rights of day laborers is to enable the open-
air traffic in day labor; and the complaint seeks to vindicate the Equal Protection
and Due Process rights of those day laborers against what the plaintiffs allege is
the discriminatory motive of the Town. The enjoining of subsection C—which is
the appropriate remedy for the First Amendment infirmity found—would be an
insufficient means to those broader ends. However, the district court did not
rule on the Equal Protection or Due Process claims, and the majority now affirms
an injunction suited to claims that were never reached.
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