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Genesee Valley Chapter — SWL Outlawed In Oyster Bay

SWL Outlawed In Oyster Bay

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on December 23, 2009. Long Island’s Oyster Bay may be best known for Sagamore Hill, the residence of Teddy Roosevelt. Many historians rate him as one of our best presidents. Teddy had a dark side, however. He was a racist, some historians say, and allowed his disdain for people significantly different from himself color his policy decisions. A century later, some residents of Oyster Bay appear to exhibit the same disdain. Their target today is day laborers — usually undocumented immigrants from Latin America who gather at street corners or empty parking lots to sell their labor for the day, the hour or for a particular job. Out of fear the day laborers are taking away jobs that would otherwise go to legal residents, impeding traffic flow and, most of all, are unsightly, the town board was convinced to adopt a law banning all solicitation of employment on any public right of way. The law, passed Sept. 29, defines solicitation as “any request, … which announces the availability for” employment. “Examples of behavior which constitute solicitation” include “waving arms,” “jumping up and down, “waving signs” and “shouting to someone in a vehicle.” The only exception for such displays now is hailing a cab. Employment covers “services, industry or labor performed … for wages or other compensation.” A violation is an offense punishable by a fine of $250. The ban impacts everyone, not just day laborers. A child cannot set up a lemonade stand on a sidewalk because he or she will be selling the industry of his or her efforts. A soccer team cannot conduct a car wash that includes waving signs or shouting at drivers. Those examples did not dissuade the town board. The board also ignored the advice of the ACLU that the law on its face violates the Free Speech Clause. Several courts reviewing similar laws have so held. See, e.g, Lopez v. Town of Cave Creek, No. CV 08566PHXROS (Dist. Ct. Ariz. 2008). Solicitation is a form of expression entitled to the same protections as traditional speech. The protections are at their strictest when the expression occurs in traditional public forums, such as sidewalks. A law may differentiate among certain types of solicitation, i.e., be content-based, only if the lines drawn are the least restrictive and further a compelling government interest. In fact, many laws fail such strict scrutiny. The U.S. Supreme Court has taken a dim view of rules that invite government officials to examine the content of speech to determine whether it is acceptable. Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992). Oyster Bay’s law clearly draws lines based on content. It prohibits speech soliciting employment, but not speech soliciting support for a candidate, an issue or an event. Worse, it bans the actual words of solicitation, the “request” for employment. The board stated its intent in adopting the law was to protect the “safety of pedestrians and motorists,” including the solicitors themselves. While such a purpose may be a compelling interest, the means chosen to achieve it are not the least restrictive. A person violates the law in Oyster Bay simply by asking for work. The town does not have to prove the act of solicitation impeded traffic or endangered the solicitor or others. The board also has not explained why New York’s Vehicle and Traffic Law was not up to the task of regulating safety on the town’s roads. Apparently the law has had its intended effect. One resident told Newsday recently: “I would say it’s a little better; I don’t see as many of them out there, but you know what — one is too many. I have nothing against the men personally, but this is not the way we look for work in this country.” Until the board repeals the law or a court strikes it down, certain residents of, and visitors to Oyster Bay need to watch out. The town now punishes the apparent crime of SWL, or Standing While Latino.

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