Ninth Circuit Court Ruling on Ordinance Similar to SB 1070

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The Ninth Circuit Court of Appeals recently struck down a Redondo Beach, California anti-solicitation ordinance that’s very similar to provisions of Arizona’s Senate Bill 1070 that are currently in effect. ASU Law Professor Carissa Hessick shares her views on whether or not the ruling opens the door for a legal challenge on parts of SB 1070.

Ted Simons: Just last week the ninth circuit court of appeals struck done a Redondo Beach, California, ordinance that similar to a provision of Arizona's SB 1070. The ordinance prohibits people from standing on a street or highway to seek employment from occupants of any motor vehicle. The court said the language is too broad and violates the first amendment right to free speech. But does that decision invite a challenge to similar parts of SB 1070 that are still in effect? Here to tell us what she thinks is Carissa Hessick, she's a law professor at ASU's Sandra day O'Connor college of law. Thanks for joining us.

Carissa Hessick: My pleasure. Happy to be here.

Ted Simons: OK, basically the ninth circuit, this is the full ninth circuit, looks at this Redondo Beach ordinance and says, what?

Carisaa Hessick: They said that this ordinance violated the first amendment freedom of speech. It's interesting, you said it was the full ninth circuit that's because the three-judge panel said no, this case was controlled by a 1986 case that actually came out of Arizona here, saying that there are no first amendment problems. But the ninth circuit went on to say all the active judges -- a big group of all the active judges decided to overturn the old case and overturn the panel decision here.

Ted Simons: Because of first amendment rights of people, what, standing in the street or on the sidewalk trying to solicit work?

Carissa Hessick: Exactly. So with the Supreme Court cared about was the fact the ordinance talked about solicitation. And there's some older cases saying when people are soliciting it's a way to get their message across. If I'm raising money for my church, and I'm asking you for money, it's also a way for me to spread the message about that church or group I'm involved with. So the idea of solicitation, the ninth circuit said has special first amendment aspects to it.

Ted Simons: OK. So we've got that, the Redondo Beach ordinance, based on the Phoenix I believe ordinance here from 1986, ninth circuit says no go. What does that mean for SB 1070? Aspects that weren't blocked in the first place?

Carissa Hessick: It's a great question because you're right, some portions of section 5 of SB 1070 dealt with blocking traffic to gain employment. There's one crime that says it's a crime for you to cause someone to block or impede traffic if you are seeking employment, and the other crime is for the person who is in the car blocking the traffic who is trying to hire the person. So the question now becomes, does this Redondo Beach case change the analysis for SB 1070?

Ted Simons: What do you think? Is there a case in? Is it -- is it still so separate in the sense of your -- it seems like 1070 is limiting -- limited to those who are actually getting into vehicles or that sort of thing. Was the Redondo Beach and the Phoenix ordinance too brad broad, do you think? Was 1070 limited enough?

Carissa Hessick: I think they're there are going to be two arguments the state of Arizona can make as to why the Redondo Beach ordinance is different and SB 1070 should be fine. The first, you're right, is that the Redondo Beach ordinance was broader. SB 1070 specifically about blob, the normal flow of traffic. The Redondo Beach decision -- the Redondo Beach ordinance didn't have that language in it, and the ninth circuit was concerned that made the law too broad. So that's the first big difference. The second big difference is that while the Redondo Beach ordinance talked about solicitation, SB 1070 is talked about in terms of employment, which then raises the question, is this commercial speech, which although that's entitled to some protection under the first amend, it doesn't get the same protection. These are two big differences.

Ted Simons: Interesting. Another aspect that's confusing here, you've got this district court judge who blocked certain parts of 1070, allowed these things to go ahead through, basically based on what the ninth circuit ruled. The three panel ninth circuit. Now that the full panel has gone the opposite direction, will the district court judge got opposite direction and block more of SB 1070?

Carissa Hessick: Well, if I were an attorney on this case I would certainly ask the judge to reconsider that decision in light of this new case. But if I were an attorney for the state, I would say maybe that old case doesn't control anymore, but there's still lots of reasons why the city of Redondo Beach don't mean you should change your mind. It's different enough, the judge could basically write on a blank slate, do her own analysis instead of saying the ninth circuit told me what to do.

Ted Simons: Originally wasn't she basing her decision on what the ninth circuit had said? Had ruled?

Carissa Hessick: She was. So now she'd have to do the analysis herself.

Ted Simons: Right. Is the court basically saying there are other ways to control this? You can find loiterring law and you dock other kinds of jaywalking statutes and things, that would take care of this problem as opposed to specifically saying you can't seek employment on the street?

Carissa Hessick: That's one of the lines of analysis that the ninth circuit court talked about. They said, look, there are less restrictive means for accomplishing this, you can enforce your other laws that have to do with impeding traffic. And Arizona certainly has those laws saying it's a tickettable offense time pediatric traffic. What the state's really concerned about is the flow of traffic, they can simply use those laws. But as you and I know, section 1 of SB 1070 makes clear this isn't just about traffic, this is about illegal immigration.

Ted Simons: And that point you made is fascinating, the idea that first amendment rights are here, but this could be commercial and that could be a I have big difference.

Carissa Hessick: It could be. Still get first amendment protection for commercial speech but tests are different and they're not as protective of speech as they are for noncommercial speech.

Ted Simons: Very interesting stuff. Good to have you back on the show. Thanks for joining us.

Carissa Hessick: My pleasure.

Carissa Hessick:ASU Law Professor

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