The High Cost of Free Speech: Anti-Solicitation Ordinances, Day Laborers, and the Impact of 'Backdoor' Local Immigration Regulations
45 Pages Posted: 4 Oct 2009 Last revised: 8 Aug 2012
Date Written: October 3, 2009
This paper examines how local efforts to regulate the activities of immigrants, while not regulation of immigration per se, can have a substantial and detrimental effect on the civil rights of immigrants and Latinos. The paper discuss how day laborers - individuals, mostly Latino men, who seek short-term employment in public fora - are routinely targeted by state and local governments, federal immigration authorities, anti-immigrant activists, and the general public as a symbol of the employment of unauthorized aliens. Even though many day laborers are lawfully present, or have authorization to work in the United States, due to the high-profile nature of their job search - which usually involves waiting on corners in front of big-box stores or in nearby labor centers for a potential employer to offer them work - day laborers are assumed to be “illegal aliens” and, therefore, implicitly deserving of the derision and scrutiny that accompanies such a categorization. As such, day laborers are a visible and vulnerable population, subject to discriminatory treatment on the basis of real or perceived immigration status on a daily basis.
However, despite the abundance of public scorn and contempt directed at day laborers, federal courts have uniformly upheld their right to solicit employment in public fora and have repeatedly struck down anti-solicitation ordinances designed to chill their First Amendment free speech rights. Immigrants’ rights advocates have successfully litigated on behalf of day laborers in federal courts – particularly in California and Arizona – and, as a result of this litigation strategy, day laborers have continued to be able to seek and obtain day work. Yet despite these repeated vindications of their constitutional rights in court, the day-to-day reality is that day laborers continue to be harassed by law enforcement, businesses, and private citizens, as the public nature of their job search often leads them to be unfairly categorized as the faces of illegal immigration, as nuisances, and as threats to public safety.
This paper explores the gap between the day laborers’ legal successes and their continuing struggle for respect and dignity as employees and human beings, and searches for a remedy in the law that will more forcefully advance day laborers’ fight for equality. Part I gives an overview of the cases concerning day laborers and their free speech right to seek work, and whether or not anti-solicitation ordinances are content-based, content-neutral, or commercial speech. Part II discusses the ways in which day laborers have empowered themselves - not only by challenging the anti-solicitation ordinances directed at them, but by organizing to ensure better wages and working conditions. Part III argues that the First Amendment decisions upholding day laborers’ constitutional right to solicit employment - while significant and important holdings that reaffirm the fundamental right of all persons, even those with unpopular messages, to speak and be heard - are largely pyrrhic victories for the day laborers themselves, as they do not address the underlying problems of discrimination, racial profiling, and selective enforcement that is inherent in day work.
Part IV discusses the tension between the strategy of the First Amendment litigation and the larger struggle for justice and dignity for day laborers, and highlights other litigation strategies that have been used to challenge “backdoor” local regulations of immigration. I argue that the short-term, piecemeal successes that have resulted from challenging state and local anti-solicitation laws, while important as matter of policy, have done little to actually advance day laborers’ struggle for equality in a lasting, tangible manner. Because day laborers are perceived to be undocumented immigrants, anti-solicitation ordinances and other laws targeting day laborers are really “backdoor” attempts by state and local governments to regulate immigration. As such, challenging these laws as First Amendment violations of day laborers’ free speech rights, while allowing the workers to continue to solicit employment in public fora, fails to provide them with a meaningful remedy. This is due to the pernicious motives underlying the creation and passage of anti-solicitation laws targeting day laborers – racism, nativism, and discrimination based on alienage and national origin – and I attempt in this section to identify other meaningful ways to address the root causes of such ordinances in addition to First Amendment litigation. Finally, Part V explores how the successes day laborers have enjoyed in court in vindicating their free speech right to seek employment can be used to develop additional novel legal theories and potential remedies. I argue that in order to meaningfully combat “backdoor” immigration regulations, immigrants’ rights advocates must engage in legal and policy work that will translate into a more practical, every day benefit for the men and women working “on the corner.”
Keywords: Day labor, SB 1070, Arizona, immigration, First Amendment
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