In September 2007, the town of Cave Creek, Arizona passed an anti-solicitation ordinance targeting day laborers, who often seek work in traditional public areas subject to constitutional protection, such as sidewalks. The Cave Creek ordinance prohibited a person on or adjacent to a street, including on sidewalks, from soliciting or attempting to solicit employment, business, or contributions from occupants of moving or parked vehicles.
In March 2008, MALDEF challenged the ordinance in U.S District Court for the District of Arizona in Phoenix on behalf of day laborers in Cave Creek. MALDEF argued that the town’s ordinance, which is a content-based restriction on free speech, violated the First Amendment free speech rights of persons who wish to express their availability for work in public areas in the Town of Cave Creek. The case was filed along with the ACLU Foundation Immigrants’ Rights Project and the ACLU Foundation of Arizona.
In June 2008, U.S. District Court Judge Roslyn O. Silver issued a preliminary injunction enjoining the town of Cave Creek from enforcing its anti-solicitation ordinance on the grounds that the ordinance is a content-based restriction on free speech, and as such it unconstitutionally infringes the free speech rights of day laborers from seeking work in traditional public forums in the Town of Cave Creek.
In August 2008, the parties stipulated to a permanent injunction of the ordinance, which permanently enjoins the Town from enforcing its anti-solicitation ordinance against day laborers or anyone else who wishes to exercise their First Amendment free speech right to seek employment in public fora in Cave Creek.
Court Blocks Local Arizona Anti-Solicitation Law
Law Restricted Free Speech Rights Of Day Laborers
August 08, 2008
PHOENIX, AZ — The U.S District Court of Arizona today blocked the town of Cave Creek, Arizona from enforcing an anti-solicitation ordinance that infringes on the free speech rights of day laborers in that town. The order ensures that day laborers will be able to exercise their constitutional rights by expressing their availability to work in public areas.
“The court ordered defendants to stop enforcing an unconstitutional law and allow day laborers to express their willingness to work by peaceably standing on the side of the road,” said Mónica M. Ramírez, a staff attorney with the American Civil Liberties Union Immigrants' Rights Project, which is lead counsel in the case. “The Constitution protects everyone in this country and today's final ruling is a victory for the free speech rights not only of day laborers but of everyone in the town of Cave Creek.”
In late March, the ACLU, the ACLU of Arizona and the Mexican American Legal Defense and Educational Fund (MALDEF) filed a lawsuit against the town of Cave Creek and the town's mayor and deputy mayor on behalf of Hector Lopez, Leopoldo Ibarra and Ismael Ibarra, three longtime day laborers and Arizona residents who in the past successfully solicited employment in Cave Creek by standing in public areas, peaceably indicating to occupants of passing vehicles their availability for temporary employment. The district court issued a preliminary injunction stopping the town from enforcing the ordinance in June.
After June’s preliminary injunction, the town of Cave Creek agreed not to enforce the anti-solicitation ordinance and to accept a final ruling blocking the law. In its ruling today, the court ordered that the ordinance not be enforced for the same reasons set forth in its June order, in which it stressed that other district courts in the Ninth Circuit have uniformly found similar anti-solicitation ordinances unconstitutional.
“Across the country, courts have found that these local anti-solicitation ordinances, which are merely pretext for targeting day laborers and other Latinos, don’t pass constitutional muster,” said Kristina Campbell, MALDEF staff attorney. “Before other states and local municipalities consider passing similar discriminatory and unlawful ordinances, they should remember that these laws will fail under legal scrutiny and open them up to costly litigation.”
Alessandra Soler Meetze, Director of the ACLU of Arizona said, “The courts have continually found that day laborers and others who wish to exercise their First Amendment right to solicit employment in public places have the right to do so without fear that they will be discriminated against simply because of the color of their skin or because they are perceived to be foreign born.”
In September 2007, the Cave Creek Town Council passed an anti-solicitation ordinance that restricted free speech by prohibiting solicitation of employment, business or contributions from the occupants of vehicles when standing on or next to a street or highway. The ordinance went so far as to bar solicitation from occupants in vehicles that are lawfully parked in public areas.
Before the town passed the ordinance, day laborers — who are usually hired by homeowners to perform services like gardening, moving, light construction, housework and painting — solicited work in public areas.
While the town was apparently motivated by a desire to target immigration, the ordinance applied to everyone in Cave Creek regardless of their nationality or immigration status. The ACLU argued that individuals, regardless of their immigration status, have the right to free speech which includes peaceably soliciting employment in public areas.
Lawyers on the case include Ramírez and Cecillia D. Wang of the ACLU Immigrants' Rights Project; Pochoda of the ACLU of Arizona; and Campbell and Cynthia Valenzuela of MALDEF.