FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COMITE DE JORNALEROS DE
REDONDO BEACH; NATIONAL DAY
LABORER ORGANIZING NETWORK, No. 06-55750
Plaintiffs-Appellees,
D.C. No.
v. CV-04-09396-CBM
CITY OF REDONDO BEACH,
Defendant-Appellant.
COMITE DE JORNALEROS DE
REDONDO BEACH; NATIONAL DAY
No. 06-56869
LABORER ORGANIZING NETWORK,
Plaintiffs-Appellees,
D.C. No.
CV-04-09396-CBM
v.
OPINION
CITY OF REDONDO BEACH,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted
May 9, 2008—Pasadena, California
Filed June 9, 2010
8353
8354 COMITE DE JORNALEROS v. REDONDO BEACH
Before: Kim McLane Wardlaw and Sandra S. Ikuta,
Circuit Judges, and Ralph R. Beistline,* District Judge.
Opinion by Judge Ikuta;
Dissent by Judge Wardlaw
*The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
COMITE DE JORNALEROS v. REDONDO BEACH 8357
COUNSEL
Philip Hwang and Robert Rubin, Lawyers’ Committee for
Civil Rights, San Francisco, California, and Cynthia A.
Valenzuela, Mexican American Legal Defense and Educa-
tional Fund, Los Angeles, California, counsel for the appellee.
Julie Fleming, Manning & Marder, Kass, Ellrod, Ramirez
LLP, Los Angeles, California, and Michael Webb, Office of
the City Attorney, Redondo Beach, California, counsel for the
appellant.
8358 COMITE DE JORNALEROS v. REDONDO BEACH
OPINION
IKUTA, Circuit Judge:
This appeal raises a First Amendment challenge to
Redondo Beach Municipal Code § 3-7.1601, which prohibits
the act of standing on a street or highway and soliciting
employment, business, or contributions from the occupants of
an automobile. We have previously upheld a virtually identi-
cal ordinance against a constitutional challenge. See ACORN
v. City of Phoenix, 798 F.2d 1260, 1273 (9th Cir. 1986). We
reach the same result here and hold that the Redondo Beach
ordinance is a valid time, place, or manner restriction.
Accordingly, we reverse the contrary decision of the district
court.
I
The facts giving rise to this controversy can be traced back
to ACORN, where the Association of Community Organiza-
tions for Reform Now (ACORN), a non-profit political action
organization, raised a First and Fourteenth Amendment chal-
lenge to a Phoenix ordinance that read: “No person shall stand
on a street or highway and solicit, or attempt to solicit,
employment, business or contributions from the occupants of
any vehicle.” Id. at 1262. According to ACORN, the chal-
lenged ordinance deterred its members from “tagging.” As we
explained, “[t]agging . . . involves an individual stepping into
the street and approaching an automobile when it is stopped
at a red traffic light. The individual asks the occupants of the
vehicle for a contribution to ACORN and distributes a slip of
paper, or ‘tag,’ providing information about ACORN and its
activities.” Id.
We determined that the restrictions imposed by the Phoenix
ordinance were content neutral, narrowly tailored to serve a
significant government interest, and left open ample alterna-
tive channels of communication. Id. at 1267-71. Accordingly,
COMITE DE JORNALEROS v. REDONDO BEACH 8359
we concluded that the ordinance was a reasonable time, place,
or manner restriction which did not violate ACORN’s First
Amendment rights. Id. at 1273. We also rejected ACORN’s
argument that the ordinance was facially overbroad because
it would deter not only ACORN’s tagging at intersections, but
also persons soliciting “on the sidewalks of Phoenix, during
parades or demonstrations, or on streets closed to vehicle traf-
fic.” Id. at 1272. Because the ordinance was narrow, and pro-
hibited “only solicitation in the streets ‘from the occupants of
any vehicle,’ ” id., we concluded that ACORN’s overbreadth
argument ran “completely contrary to the language of the
ordinance,” id. at 1273.
Some eight months after we decided ACORN, Redondo
Beach’s city attorney proposed that the city adopt an ordi-
nance “identical to one recently approved by the 9th circuit
court of appeals.” A memorandum from the city attorney to
the mayor explained that “the City has had extreme difficul-
ties with persons soliciting employment from the sidewalks
along the Artesia corridor over the last several years. . . .
There can be little question that traffic and safety hazards
occur by this practice.” A later memorandum by the same city
attorney stated that the “ordinance was designed to alleviate
sidewalk congestion and traffic hazards which occurred when
large numbers of persons congregated on the sidewalks during
the rush hours to obtain temporary employment.”
Using ACORN as a guide in drafting its own ordinance,
Redondo Beach enacted Redondo Beach Municipal Code § 3-
7.1601, which provides:
It shall be unlawful for any person to stand on a
street or highway and solicit, or attempt to solicit,
employment, business, or contributions from an
occupant of any motor vehicle. For purposes of this
section, “street or highway” shall mean all of that
area dedicated to public use for public street pur-
poses and shall include, but not be limited to, road-
8360 COMITE DE JORNALEROS v. REDONDO BEACH
ways, parkways, medians, alleys, sidewalks, curbs,
and public ways.1
The first sentence of the Redondo Beach ordinance is identi-
cal to the operative language of the Phoenix ordinance from
ACORN. See 798 F.2d at 1262. The second sentence adds the
California Vehicle Code’s definitions of “street,” and “high-
way.” See Cal. Veh. Code §§ 360, 590 (2009). In 1989,
Redondo Beach added subsection (b) imposing a correlative
restriction on drivers. It states: “It shall be unlawful for any
person to stop, park or stand a motor vehicle on a street or
highway from which any occupant attempts to hire or hires
for employment another person or persons.” As the city attor-
ney explained in an earlier memorandum, “[b]y adopting this
amendment, both the prospective employee and employer
would be subject to a misdemeanor offense for soliciting the
other from a street or highway.”
After passage of the ordinance, Redondo Beach continued
to experience traffic problems related to persons soliciting
employment from automobiles at two of the city’s intersec-
tions. In October 2004, Redondo Beach undertook “an
enhanced effort” to enforce the Redondo Beach ordinance at
these two intersections. Throughout October and November
2004, Redondo Beach police officers, sometimes posing as
potential employers, arrested multiple persons for violating
subsection (a) of the ordinance, and cited one person for vio-
lating subsection (b). According to the officer who was in
charge of the enforcement project, “[d]ay laborers were only
contacted and arrested when they were on the sidewalk and
approached a stopped vehicle. The prospective employer who
was charged with violation of Municipal Code Section 3-
7.1601(b) was contacted because he stopped in a traffic lane
to conduct a hiring discussion with day laborers.”
1
In 1989, this text became subsection (a) of the ordinance.
COMITE DE JORNALEROS v. REDONDO BEACH 8361
On November 16, 2004, Comite de Jornaleros de Redondo
Beach (Comite) and the National Day Laborer Organizing
Network (NDLON) filed this suit in district court. Comite
identifies itself as “an unincorporated association comprised
of day laborers who . . . regularly seek work in the City of
Redondo Beach,” and NDLON identifies itself as “a nation-
wide coalition of day laborers and the agencies that work with
day laborers.” Their complaint alleged that the Redondo
Beach ordinance deprived them and others of free speech
rights guaranteed by the First and Fourteenth Amendments,
and sought injunctive, monetary, and declarative relief under
42 U.S.C. § 1983 and 28 U.S.C. § 2201. The district court
issued a temporary restraining order, and later a preliminary
injunction barring enforcement of the Redondo Beach ordi-
nance. We affirmed the preliminary injunction in an unpub-
lished memorandum disposition. 127 Fed. Appx. 994 (9th Cir.
2005).
Both plaintiffs and Redondo Beach moved for summary
judgment, which the district court addressed in a published
opinion. 475 F. Supp. 2d 952 (C.D. Cal. 2006). The district
court held that the Redondo Beach ordinance was content
neutral, but was nevertheless invalid because (1) it was not
“narrowly tailored to promote [Redondo Beach’s] interests in
traffic flow and safety,” and (2) it “failed to establish the exis-
tence of ample alternative channels of communication.” Id. at
966-68. Accordingly, the district court granted the plaintiffs’
motion for summary judgment, permanently enjoined
Redondo Beach from enforcing its ordinance, and ordered
that “all fines, penalties, or records of infractions” of the
Redondo Beach ordinance “be rescinded or removed and res-
titution provided.” Id. at 970. Redondo Beach timely
appealed. The district court subsequently granted Redondo
Beach’s motion to stay the order granting partial relief pend-
ing resolution of the appeal. The district court also awarded
attorneys’ fees to plaintiffs pursuant to 42 U.S.C. § 1988,
which Redondo Beach has also timely appealed.
8362 COMITE DE JORNALEROS v. REDONDO BEACH
We review de novo the district court’s grant of summary
judgment in favor of NDLON. See, e.g., ACLU of Nevada v.
City of Las Vegas (ACLU II), 466 F.3d 784, 790 (9th Cir.
2006). When considering a motion for summary judgment, we
view the evidence in the light most favorable to the nonmov-
ing party, and draw “all justifiable inferences” in that party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
II
Redondo Beach makes the threshold argument that Comite
and NDLON lack standing to challenge the ordinance. To
have standing under Article III, a plaintiff must have suffered
an “injury in fact,” defined as “an invasion of a legally pro-
tected interest which is (a) concrete and particularized, and (b)
actual or imminent.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992) (citations and internal quotation marks omit-
ted). There also must be a causal connection between the
injury and the defendant’s conduct, and the injury must be
redressable by a favorable decision. Id. at 561. Here Redondo
Beach argues that Comite and NDLON fail to satisfy the Arti-
cle III injury-in-fact requirement.
[1] An organization may establish a sufficient injury in fact
if it substantiates by affidavit or other specific evidence that
a challenged statute or policy frustrates the organization’s
goals and requires the organization “to expend resources in
representing clients they otherwise would spend in other
ways.” El Rescate Legal Servs., Inc. v. Executive Office of
Immigration Review, 959 F.2d 742, 748 (9th Cir. 1992); see
also Fair Housing of Marin v. Combs, 285 F.3d 899, 904-05
(9th Cir. 2002). But “standing must be established indepen-
dent of the lawsuit filed by the plaintiff.” Walker v. City of
Lakewood, 272 F.3d 1114, 1124 n.3 (9th Cir. 2001).
[2] NDLON has met the burden to establish its standing as
an organization. The record contains declarations of NDLON
COMITE DE JORNALEROS v. REDONDO BEACH 8363
officials that enforcement of the Redondo Beach ordinance
has frustrated NDLON’s mission “to strengthen and expand
the work of local day laborer organizing groups” because it
“has prevented day laborers from making their availability to
work known in the City of Redondo Beach.” Moreover, the
ordinance has discouraged both employees and employers
from participating in hiring transactions. Redondo Beach has
offered no evidence to dispute these claims. NDLON also has
offered uncontradicted evidence that enforcement of the ordi-
nance has forced it to divert resources, independent of
expenses for this litigation, that it would have spent in other
ways. NDLON’s west coast coordinator testified that she met
with workers at the intersections targeted by Redondo Beach
to discuss enforcement of the ordinance almost daily from the
end of October 2004 until mid-December 2004, and weekly
thereafter through June 2005. She also testified that she went
to the police station to assist day laborers who had been
arrested. NDLON’s national coordinator testified that the time
and resources spent in assisting day laborers during their
arrests and meeting with workers about the status of the ordi-
nance would have otherwise been expended toward
NDLON’s core organizing activities. In sum, NDLON has
established a sufficient organizational injury for standing pur-
poses. See El Rescate, 959 F.2d at 748.
[3] Because there is a causal connection between Redondo
Beach’s ordinance and NDLON’s injury, and NDLON’s
injury would be redressable by a favorable decision, we con-
clude that NDLON has standing to bring this appeal. Accord-
ingly, we have jurisdiction over this facial challenge
irrespective of Comite’s standing. “Where the legal issues on
appeal are fairly raised by one plaintiff [who] had standing to
bring the suit, the court need not consider the standing of the
other plaintiffs.” Planned Parenthood of Idaho, Inc. v. Was-
den, 376 F.3d 908, 918 (9th Cir. 2004) (alteration in original)
(internal quotation marks omitted). Therefore, we do not
address the parties’ remaining standing arguments, including
Redondo Beach’s evidentiary arguments. For ease of refer-
8364 COMITE DE JORNALEROS v. REDONDO BEACH
ence, we will refer to the appellees in this case collectively as
NDLON.
III
[4] The First Amendment guarantees that “Congress shall
make no law . . . abridging the freedom of speech.”2 The
Supreme Court has made clear, however, that:
even in a public forum the government may impose
reasonable restrictions on the time, place, or manner
of protected speech, provided the restrictions “are
justified without reference to the content of the regu-
lated speech, that they are narrowly tailored to serve
a significant governmental interest, and that they
leave open ample alternative channels for communi-
cation of the information.”
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S.
288, 293 (1984)).3
2
Although the text of the First Amendment restricts “Congress,” the
right to free speech “is within the liberty safeguarded by the Due Process
Clause of the Fourteenth Amendment.” First Nat’l Bank of Boston v. Bel-
lotti, 435 U.S. 765, 779 (1978). Accordingly, the First Amendment’s limi-
tation on “abridging the freedom of speech” applies to the states and their
political subdivisions, such as Redondo Beach. City of Ladue v. Gilleo,
512 U.S. 43, 45 n.1 (1994).
3
Amici contend that the ordinance restricts solicitation that “does no
more than propose a commercial transaction,” Bolger v. Young’s Drug
Prods. Corp., 463 U.S. 60, 66 (1983) (internal quotation marks omitted),
and therefore the ordinance should be analyzed as a regulation of commer-
cial speech. Because the appellants did not argue to the district court or
to us that the ordinance imposes restrictions solely on purely commercial
speech, however, we decline to address this argument. See, e.g., Dodd v.
Hood River County, 59 F.3d 852, 863 (9th Cir. 1995). Moreover, we have
narrowly interpreted Supreme Court precedents defining commercial
speech, holding that unless statutes or ordinances expressly “limit the
scope of the regulated activity to purely commercial expression,” S.O.C.,
COMITE DE JORNALEROS v. REDONDO BEACH 8365
Redondo Beach’s ordinance regulates solicitation, which
we have long recognized is a form of expression that consists
of both expressive content and associated conduct or acts. The
“words” component of solicitation includes both written and
spoken communications. See ACLU II, 466 F.3d at 793-94.
The “acts” component of solicitation includes the conduct of
the person soliciting (e.g., in-person demands requiring an
immediate response, such as approaching a person or vehicle
“and demanding a personal response,” ACORN, 798 F.2d at
1269 n.8). It also includes the effects of such conduct, such
as impeding the flow of traffic, causing the target of solicita-
tion to dodge an “implied threat of physical touching,” Hill v.
Colorado, 530 U.S. 703, 724 (2000), and other “disruption
and delay caused by solicitation,” United States v. Kokinda,
497 U.S. 720, 734 (1990). See Int’l Soc’y for Krishna Con-
sciousness, Inc. v. Lee, 505 U.S. 672, 683-84, 705 (1992)
(“Passengers who wish to avoid the solicitor may have to alter
their paths, slowing both themselves and those around
them.”). The dual nature of solicitation does not change the
fact that solicitation is a form of expression and “[e]xpression,
whether oral or written or symbolized by conduct, is subject
to reasonable time, place, or manner restrictions.” Clark, 468
U.S. at 293.4
Inc. v. County of Clark, 152 F.3d 1136, 1143-44 (9th Cir. 1998), such laws
must be analyzed as if they imposed restrictions on fully protected speech.
Id. Because the Redondo Beach ordinance does not include such an
express limitation, we cannot analyze it as commercial speech.
4
Because solicitation combines “ ‘speech’ and ‘nonspeech’ elements,”
solicitation could be categorized as expressive conduct. See United States
v. O’Brien, 391 U.S. 367, 376 (1968). The Supreme Court has explained
that the government can regulate expressive conduct, id. at 376-77, and
that the test to determine whether such a regulation violates the First
Amendment is essentially the same as that articulated in Ward for time,
place, and manner restrictions. See Clark, 468 U.S. at 298 & n.8; see also
Ward, 491 U.S. at 798. Here, Redondo Beach did not argue that its ordi-
nance was a valid restriction on expressive conduct, so we apply only the
test articulated in Ward to determine whether the ordinance is constitu-
tional. 491 U.S. at 791.
8366 COMITE DE JORNALEROS v. REDONDO BEACH
The issue here is whether Redondo Beach’s ordinance was
a valid limitation on speech. As in ACORN, we will assume
that the streets of Redondo Beach constitute a perpetual pub-
lic forum, even when they are in use by vehicular traffic. 798
F.2d at 1267; see Frisby v. Schultz, 487 U.S. 474, 481 (1988)
(“[A]ll public streets are held in the public trust and are prop-
erly considered traditional public fora.”). Accordingly, we
must consider whether the Redondo Beach ordinance is con-
tent neutral, narrowly tailored to serve a significant govern-
mental interest, and leaves open ample alternative channels
for communication of information. Clark, 468 U.S. at 293.
NDLON, in its cross-appeal, argues that the district court
erred in concluding that the ordinance was content neutral,
while Redondo Beach argues that the district court erred in
holding that the ordinance was not narrowly tailored and that
ample alternative channels of communication were lacking.
We consider these arguments in turn, mindful of the Supreme
Court’s direction that we may, and generally should, construe
an enactment in a manner that will allow us to uphold its con-
stitutionality. See City of Lakewood v. Plain Dealer Publ’g
Co., 486 U.S. 750, 770 n.11 (1988) (“[T]his court will pre-
sume any narrowing construction or practice to which the law
is fairly susceptible.” (internal quotation marks omitted)).
A
We have held that restrictions on acts of solicitation that
were passed to support legitimate government concerns unre-
lated to suppressing any particular message are content neu-
tral. See ACLU II, 466 F.3d at 794 & n.10 (noting that “courts
have held that bans on the act of solicitation are content-
neutral,” while courts have determined that bans separating
out “words of solicitation for differential treatment” are con-
tent based (citing cases)); see also Berger v. City of Seattle,
569 F.3d 1029, 1051 (9th Cir. 2009) (en banc) (stating that
“regulations that ban certain conduct associated with solicita-
tion do not violate the prohibition on content-based regulation
of speech”). Indeed, this principle is well grounded in
COMITE DE JORNALEROS v. REDONDO BEACH 8367
Supreme Court precedent, which establishes that a regulation
affecting speech-related activities is content neutral if it
“serves purposes unrelated to the content of expression . . .
even if it has an incidental effect on some speakers or mes-
sages but not others.” Ward, 491 U.S. at 791.
Justice Kennedy made this point in his concurring opinion
in Lee, 505 U.S. at 705, which we have relied on in ACLU II,
466 F.3d at 795, and Berger, 569 F.3d at 1050. In Lee, Justice
Kennedy interpreted the Port Authority’s ban on solicitation
in an airport as being aimed at abusive acts associated with
the physical exchange of money, described as “an element of
conduct interwoven with otherwise expressive solicitation.”
505 U.S. at 705 (Kennedy, J., concurring). Because the Port
Authority’s regulation prohibiting solicitation was “directed at
these abusive practices and not at any particular message,
idea, or form of speech, the regulation [was] a content-neutral
rule serving a significant government interest.” Id. at 706. In
sum, where a regulation is aimed at actions entwined with
expressive content, the principal inquiry is whether “restric-
tions of this kind . . . are justified without reference to the
content of the regulated speech.” Clark, 468 U.S. at 293-94
(citing cases).
A restriction aimed at conduct does not satisfy this content
neutrality test, however, when the restriction “by its very
terms, singles out particular content for differential treat-
ment.” Berger, 569 F.3d at 1051; see ACLU II, 466 F.3d at
794. For example, in ACLU II we concluded that a municipal
ordinance prohibiting solicitation throughout a five-block
tract of downtown Las Vegas was content based.5 Although
we determined that the “uncontroverted evidence supports
5
The ordinance “broadly” defined solicitation as “to ask, beg, solicit or
plead, whether orally, or in a written or printed manner, for the purpose
of obtaining money, charity, business or patronage, or gifts or items of
value for oneself or another person or organization.” Id. at 788 (internal
quotation marks omitted).
8368 COMITE DE JORNALEROS v. REDONDO BEACH
that the ordinance was enacted with the purpose of controlling
the secondary effects of solicitation, rather than the content of
the soliciting requests themselves,” id. at 793, we held the
ordinance nevertheless “discriminates based on content on its
face” because it prohibited the distribution of handbills “re-
questing financial or other assistance” while permitting the
distribution of handbills that did not make such a request, id.
at 794.
We came to a similar conclusion in Berger. There, we ana-
lyzed a rule that prohibited street performers from “actively
solicit[ing] donations” at the Seattle Center.6 Berger, 569 F.3d
at 1035. We acknowledged that Seattle passed the rule for the
content-neutral purpose of “protect[ing] Center patrons from
harassment” caused by active solicitation conduct, id. at 1051,
but held that the ordinance was content based because on its
face it differentiated between messages. Specifically, the ordi-
nance “restrict[ed] street performers from communicating a
particular set of messages—requests for donations, such as
‘I’d like you to give me some money if you enjoyed my per-
formance,’ ” but did not prohibit street performers from
actively communicating other messages. Id. We stated that
while “this distinction [may be] innocuous or eminently rea-
sonable, it is still a content-based distinction because it ‘sin-
gles out certain speech for differential treatment based on the
idea expressed.’ ” Id. (quoting ACLU II, 466 F.3d at 794).
[5] Distilling these cases, we derive the general rule that an
ordinance regulating solicitation is content neutral if it is
aimed at acts of solicitation and “not at any particular mes-
sage, idea, or form of speech,” Lee, 505 U.S. at 706 (Ken-
6
Seattle Center Campus Rule F.3.a states: “No performer shall actively
solicit donations, for example by live or recorded word of mouth, gesture,
mechanical devices, or second parties.” Berger, 569 F.3d. at 1050. This
rule “does allow performers ‘passively’ to solicit donations by setting out
a receptacle that ‘may include a written sign that informs the public that
such donations are sought.’ ” Id.
COMITE DE JORNALEROS v. REDONDO BEACH 8369
nedy, J., concurring). An ordinance that “by its very terms,
singles out particular content for differential treatment” does
not satisfy this test. See Berger, 569 F.3d at 1051. With these
principles in mind, we analyze Redondo Beach’s ordinance.
[6] There is no meaningful distinction between the Phoe-
nix and Redondo Beach ordinances, and therefore we are
bound by our determination in ACORN that the Phoenix ordi-
nance was content neutral because it was aimed narrowly at
barring acts of solicitation directed toward the occupants of
vehicles, 798 F.2d at 1273, and was not related to any particu-
lar message or content of speech, id. at 1267. Indeed, the lan-
guage of the two ordinances is identical in all material
respects. Although Redondo Beach’s ordinance mentions
“sidewalks,” and the Phoenix ordinance does not, this differ-
ence is immaterial because ACORN interpreted the Phoenix
ordinance as applying to persons soliciting vehicles from the
sidewalk, as well as those soliciting from the street. Id. at
1269 n.9; see infra at 8375. Similarly, while the Redondo
Beach ordinance applies to the conduct of potential employers
while the Phoenix ordinance does not, this distinction does
not affect the scope of prohibited conduct, i.e., in-person
demands directed at drivers that require an immediate
response.
Nor does the record include evidence of any “binding judi-
cial or administrative construction, or well-established prac-
tice” suggesting that Redondo Beach has adopted an
interpretation different from that described in ACORN. Santa
Monica Food Not Bombs v. City of Santa Monica, 450 F.3d
1022, 1035 (9th Cir. 2006) (internal quotation marks omitted).
Redondo Beach’s enforcement efforts have focused exclu-
sively on conduct without reference to content. The record
establishes that officers charged only individuals who “soli-
cit[ed] vehicles so as to cause a driver to stop in traffic,” or
who “approached a stopped vehicle” when the vehicle was
“stopped in a traffic lane.” Those who “solicit[ed] from
behind the sidewalk line in adjacent shopping centers’ parking
8370 COMITE DE JORNALEROS v. REDONDO BEACH
lots [were] not regulated by the Ordinance.” Redondo Beach
also has not prevented people from “leafleting empty parked
cars, approaching cars already legally parked in the street, or
holding up signs to be seen by passing cars.” No one has been
arrested for communicating a message by means that did not
adversely affect traffic. Although the dissent notes that per-
sons soliciting contributions challenged the Phoenix ordi-
nance, while persons soliciting employment brought the
challenge here, see Dissent at 8396, the dissent fails to explain
why this makes a difference for purposes of a First Amend-
ment analysis. So long as the ordinance targets conduct unre-
lated to the content of the message, it does not matter whether
the ordinance impacts solicitation undertaken to secure
employment, as in Redondo Beach, or to secure contributions,
as in Phoenix. Because there is no meaningful distinction
between the Phoenix ordinance and the Redondo Beach ordi-
nance as drafted, interpreted, and enforced, we conclude that
the Redondo Beach ordinance is likewise aimed at acts, does
not single out particular ideas for differential treatment, and
is content neutral. See Forsyth County v. Nationalist Move-
ment, 505 U.S. 123, 131 (1992) (“In evaluating respondent’s
facial challenge, we must consider the county’s authoritative
constructions of the ordinance, including its own implementa-
tion and interpretation of it.”); see also Ward, 491 U.S. at
795-96 (“Administrative interpretation and implementation of
a regulation are, of course, highly relevant to our analysis, for
in evaluating a facial challenge to a state law, a federal court
must consider any limiting construction that a state court or
enforcement agency has proffered.” (alterations and internal
quotation marks omitted)).
NDLON raises two challenges to this conclusion. First,
NDLON argues that the ordinance differentiates between
messages because it prohibits individuals from conveying the
message “I need a job” while allowing the message “I need
a vote.” Second, NDLON asserts that the ordinance singles
out three categories of speech (employment, business, or con-
COMITE DE JORNALEROS v. REDONDO BEACH 8371
tributions) for regulation while leaving other categories free
from censor.
Both of these arguments are foreclosed by ACORN and
Berger. As we explained in Berger, the type of ordinance at
issue in ACORN and in this case does not restrict words of
solicitation or forbid “passing out handbills asking car drivers
or passengers to contribute by mail to a charity or cause.”
Berger, 569 F.3d at 1052 n.23. Rather, it is aimed at acts of
on-the-spot solicitation. Id. An ordinance aimed at acts of
solicitation rather than words “is not a content-based regula-
tion of speech, and so does not run afoul of the content neu-
trality requirement.” Id.; see ACLU II, 466 F.3d at 795.
NDLON’s second argument, that the Redondo Beach ordi-
nance is not content neutral because it singles out three cate-
gories of speech (employment, business or contributions) for
regulation, similarly fails in light of ACORN and Berger.
Moreover, an ordinance does not single out specific messages
for different treatment merely because it regulates broad cate-
gories of communication. In Hill, the Supreme Court held that
Colorado’s ban on “oral protest, education, or counseling”
near health care facilities without the consent of the listener
is not content based. 530 U.S. at 724. According to the Court,
such an ordinance “places no restrictions on—and clearly
does not prohibit—either a particular viewpoint or any subject
matter that may be discussed by a speaker.” Id. at 723. Rather,
it simply “establishes a minor place restriction on an
extremely broad category of communications.” Id. When an
ordinance is framed as applying to such broad categories of
communication, it does not “draw[ ] distinctions based on the
subject that the approaching speaker may wish to address.” Id.
Like the enactment at issue in Hill, Redondo Beach’s ordi-
nance establishes a place restriction on particular manners of
expression that fall within certain broad categories, but does
not impose limitations based on disagreement with the mes-
sage’s content.
8372 COMITE DE JORNALEROS v. REDONDO BEACH
NDLON argues that because a police officer enforcing the
Redondo Beach ordinance must listen to the content of the
speech to determine whether it falls within an impermissible
or a permissible category, it fails the “officer must read it”
test. NDLON refers to Foti v. City of Menlo Park, 146 F.3d
629 (9th Cir. 1998), which held that a restriction is content
based if “a law enforcement officer must examine the con-
tent” of the speaker’s message to determine whether it falls
within the restriction. Id. at 636 (internal quotation marks
omitted); see ACLU II, 466 F.3d at 794-96.
[7] NDLON’s reliance on the “officer must read it” test is
misplaced. Two years after we decided Foti, the Supreme
Court clarified in Hill that it has “never held, or suggested,
that it is improper to look at the content of an oral or written
statement in order to determine whether a rule applies to a
course of conduct.” Hill, 530 U.S. at 721 (emphasis added).
Instead, “the kind of cursory examination” of the content of
a conversation to determine whether it includes “oral protest,
education, or counseling” does not make a regulation content
based. Id. at 721-22; see ACLU II, 466 F.3d at 796 n.12. Simi-
larly, Berger noted that the “officer must read it” test is only
“evidence that the regulation is content-based . . . not disposi-
tive” of it. Berger, 569 F.3d at 1052 n.22. Given the clear
instructions in Hill and Berger, the “officer must read it” test
is limited to those situations where an officer must conduct
something more than a cursory examination of the content of
a communication, such as where the officer must thoroughly
review the communication to evaluate its “substantive mes-
sage” or “idea expressed.” ACLU II, 466 F.3d at 794, 796
n.12 (internal quotation marks omitted). Like the ordinance
upheld in Hill, the Redondo Beach ordinance regulates broad
categories of expression which require an officer to make
only a cursory examination of the solicitor’s communication,
not a substantive evaluation of a speaker’s message. There-
fore, the “officer must read it” test, as formulated in ACLU II
and Berger, does not support NDLON’s argument that the
Redondo Beach ordinance must be content based.
COMITE DE JORNALEROS v. REDONDO BEACH 8373
B
[8] We next turn to the question whether the Redondo
Beach ordinance is “narrowly tailored to serve a significant
governmental interest.” Clark, 468 U.S. at 293. A regulation
is narrowly tailored if it “promotes a substantial government
interest that would be achieved less effectively absent the reg-
ulation.” Ward, 491 U.S. at 798-99 (internal quotation marks
omitted). “So long as the means chosen are not substantially
broader than necessary to achieve the government’s interest,
however, the regulation will not be invalid simply because a
court concludes that the government’s interest could be ade-
quately served by some less-speech-restrictive alternative.”
Id. at 799.7
[9] NDLON does not dispute the district court’s holding
that “it is virtually axiomatic that the City has a ‘significant’
interest in traffic flow and safety.” 475 F. Supp. 2d at 964.
Nor could it raise any serious challenge to this well-
established principle. See, e.g., Schenck v. Pro-Choice Net-
work of W. N.Y., 519 U.S. 357, 376 (1997) (recognizing the
government’s substantial interest in “promoting the free flow
of traffic on streets and sidewalks”); Long Beach Area Peace
Network v. City of Long Beach, 574 F.3d 1011, 1022 (9th Cir.
2009) (recognizing “a somewhat greater governmental inter-
est in regulating expressive activity on city streets because of
the public safety concerns raised by vehicular traffic”). Thus,
we agree with the district court that Redondo Beach has a
substantial interest in promoting traffic flow and safety.
[10] We now consider whether the Redondo Beach ordi-
7
The dissent loses sight of this rule when it states that Redondo Beach’s
asserted interests are equally furthered by existing traffic ordinances. Dis-
sent at 8407-08. The question is not whether existing ordinances could
advance the government’s legitimate goals, but whether the ordinance at
issue is substantially broader than necessary to achieve those goals. Ward,
491 U.S. at 799.
8374 COMITE DE JORNALEROS v. REDONDO BEACH
nance is narrowly tailored to serve this significant interest. A
regulation may be narrowly tailored for First Amendment pur-
poses even if it restricts more speech or conduct than is abso-
lutely necessary. See Hill, 530 U.S. at 726 (holding that
“when a content-neutral regulation does not entirely foreclose
any means of communication, it may satisfy the tailoring
requirement even though it is not the least restrictive or least
intrusive means of serving the statutory goal” (footnote omit-
ted)); Ward, 491 U.S. at 798 (holding that “a regulation of the
time, place, or manner of protected speech must be narrowly
tailored to serve the government’s legitimate, content-neutral
interests but that it need not be the least restrictive or least
intrusive means of doing so”).
In ACORN, we determined that the Phoenix ordinance was
“narrowly tailored to address legitimate traffic safety con-
cerns.” 798 F.2d at 1270. We agreed with Phoenix’s determi-
nation that “[t]he distraction of motorists occasioned by
solicitation not only threatens to impede the orderly flow of
traffic, but also raises serious concerns of traffic and public
safety.” Id. at 1269. For example, we recognized “the evident
dangers of physical injury and traffic disruption that are pres-
ent when individuals stand in the center of busy streets trying
to engage drivers.” Id. (internal quotation marks omitted). We
also noted that the solicitation of employment, business, or
contributions demanding an immediate response from drivers
was more disruptive to traffic flow than the “oral advocacy of
ideas, or even the distribution of literature.” See id. at
1268-69. Because the Phoenix ordinance aimed “at the dis-
ruptive nature of fund solicitation from the occupants of vehi-
cles,” id. at 1268, and not at “[d]irect communication of ideas,
including the distribution of literature to occupants in vehi-
cles,” id., we concluded that the Phoenix ordinance was nar-
rowly drawn to address the government’s legitimate concerns,
id. at 1270.
[11] Redondo Beach, like Phoenix, contends that the key
purposes of the ordinance are to avoid disruptions of traffic
COMITE DE JORNALEROS v. REDONDO BEACH 8375
and to address safety concerns. 475 F. Supp. 2d at 963. Our
conclusion in ACORN that solicitation demanding an immedi-
ate response from drivers increases the risks of traffic disrup-
tion and injury is equally applicable to Redondo Beach.
Nothing in the record suggests that solicitation for employ-
ment raises a less significant risk of disruption in traffic flow
than solicitation for contributions. And, as in ACORN, we find
that an ordinance prohibiting in-person demands requiring an
immediate response from vehicle occupants, but allowing the
distribution of literature to those same occupants, is narrowly
tailored to meet traffic and safety concerns. See ACORN, 798
F.2d at 1268. We therefore hold that the Redondo Beach ordi-
nance is narrowly tailored.
We disagree with the district court’s decision that the
Redondo Beach ordinance is distinguishable from the Phoenix
ordinance because it “sweeps in a much larger amount of
‘solicitation’ speech and speech-related conduct than the ordi-
nance at issue in ACORN.” 475 F. Supp. 2d at 964. The dis-
trict court based this conclusion on the ground that the
Redondo Beach ordinance applied to individuals standing on
the sidewalk, and could be broadly construed to reach an indi-
vidual “who merely holds up a sign inviting the occupants of
vehicles to drive to a private location to confer.” Id. at 964-65.
[12] In ACORN, we construed the nearly identical Phoenix
ordinance as prohibiting solicitation from the sidewalk. 798
F.2d at 1272-73. We noted that the Phoenix ordinance’s pro-
hibition of solicitation while persons were “on” the street,
rather than “in” the street, applied “more generally to solicita-
tion occurring in direct proximity to the street,” including
from sidewalks. Id. at 1269 n.9 (italics and internal quotation
marks omitted); see id. at 1272-73. We also noted that the
“apparent thrust” of the Phoenix ordinance was “to identify
the prohibited target of such solicitation—the occupants of
vehicles—rather than the location where such conduct
occurs.” Id. at 1269 n.9. Because both the Phoenix and
Redondo Beach ordinances, as construed, prohibit solicitors’
8376 COMITE DE JORNALEROS v. REDONDO BEACH
in-person demands from the sidewalk to vehicles in the street,
the district court erred in distinguishing the Redondo Beach
ordinance from the Phoenix ordinance on this basis.
We also disagree with NDLON and the dissent’s argument
that we should disregard ACORN because in that case, we did
not consider myriad hypothetical enforcement situations that
suggest the ordinance applies more broadly than necessary for
traffic safety and flow. ACORN’s conclusion regarding a sub-
stantially similar ordinance is binding on us, even when a
party raises new arguments, absent an intervening en banc or
Supreme Court opinion. See United States v. Contreras, 593
F.3d 1135, 1136 (9th Cir. 2010) (en banc) (per curiam) (hold-
ing that a three-judge panel cannot overrule prior decisions,
even if those decisions failed to address arguments regarding
the effect of intervening authority); see also CBOCS W., Inc.
v. Humphries, 553 U.S. 442, 128 S. Ct. 1951, 1961 (2008);
Miller, 335 F.3d at 893. In addition, ACORN explicitly
rejected an argument similar to NDLON’s, namely “that
Phoenix could have equally served its interests through a less
restrictive means by prohibiting only solicitation that dis-
rupted traffic.” 798 F.2d at 1270. The argument failed because
hypothetical examples of how the government could theoreti-
cally apply an ordinance to target “more than the exact source
of the ‘evil’ it seeks to remedy,” ACLU II, 466 F.3d at 796
n.13 (internal quotation marks omitted), are not sufficient to
establish inadequate tailoring. See Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 449-50 (2008).
For the same reason, NDLON’s imaginary concerns that chil-
dren selling lemonade or Girl Scouts selling cookies outside
a school will be impacted by Redondo Beach’s ordinance do
not convince us that the ordinance is not narrowly tailored.
See Members of City Council of L.A. v. Taxpayers for Vincent,
466 U.S. 789, 801 (1984) (“[T]here must be a realistic danger
that the statute itself will significantly compromise recognized
First Amendment protections of parties not before the Court
for it to be facially challenged on overbreadth grounds.”
(emphasis added)).
COMITE DE JORNALEROS v. REDONDO BEACH 8377
Further, we reject NDLON’s argument that ACLU II com-
pels the conclusion that the Redondo Beach ordinance is not
narrowly tailored. ACLU II held that Las Vegas’s ordinance
“targets a substantial amount of constitutionally protected
speech that is not the source of the ‘evils’ it purports to com-
bat.” 466 F.3d at 796 n.13. The Redondo Beach ordinance
does not suffer the same constitutional defect. Unlike the Las
Vegas ordinance, it is not aimed at the speech component of
solicitation, which might include “a substantial amount of
constitutionally protected speech.” Id. The Redondo Beach
ordinance is aimed at the “acts” component of solicitation; it
targets only in-person demands directed at occupants of vehi-
cles, and thus specifically addresses traffic flow and safety,
the evils Redondo Beach sought to combat.
Therefore, as indicated by ACORN and our subsequent
cases, we conclude that the Redondo Beach ordinance is nar-
rowly tailored to serve Redondo Beach’s significant interests
in traffic flow and safety.
C
Third, we consider whether Redondo Beach’s ordinance
leaves open alternative avenues of communication. We
addressed this issue in ACORN and concluded that the Phoe-
nix ordinance met this criteria because it allowed the distribu-
tion of literature, even to occupants of vehicles, and also
allowed a range of solicitation methods “including solicitation
on the sidewalk from pedestrians, canvassing door-to-door,
telephone campaigns, or direct mail.” ACORN, 798 F.2d at
1271.
[13] We reach the same conclusion here. The alternative
avenues of communication identified as adequate in ACORN
are also available in Redondo Beach. As in ACORN, the
Redondo Beach ordinance permits persons to solicit “busi-
ness, employment, or contributions” from people on side-
walks or in similar public forums within Redondo Beach, so
8378 COMITE DE JORNALEROS v. REDONDO BEACH
long as the act does not take place when the target of the
solicitation is actually driving in the street.8 See id. Prospec-
tive employers or contributors can park legally and respond to
solicitations made by individuals on foot without either party
to the transaction violating the ordinance. Therefore, the ordi-
nance does not require solicitors to resort to substitutes like
advertising in phone books, newspapers, or by mail, which
may require longer lead times and greater financial resources.
See Long Beach Area Peace Network, 574 F.3d at 1025 (not-
ing that “we consider the cost and convenience of alterna-
tives” as one factor in the ample alternatives analysis).
The district court held that the alternative avenues of com-
munication identified by Redondo Beach were inadequate
because they were not as commercially viable or effective as
solicitation in the street. 475 F. Supp. 2d at 967-68. But alter-
native means of expression need not be as effective as the
restricted means, so long as the message itself can still reach
the intended audience. See One World One Family Now, 76
F.3d at 1014-15 (holding that a Honolulu ordinance banning
the sale of merchandise in city streets left open ample alterna-
tive channels because the ordinance allowed the plaintiffs to
express their message to the intended audience through
“handing out literature, proselytizing or soliciting donations,”
as well as giving away t-shirts, wearing t-shirts bearing their
message, and “sell[ing] [t]-shirts through local retail outlets or
by opening their own stores”); see also ACORN, 798 F.2d at
1271 (upholding a restriction on ACORN’s “uniquely effec-
tive method of fundraising”). For instance, we held that a
restriction which had the effect of banning protests in “a por-
tion of [Seattle]’s downtown area where protestors could not
deliver their message directly to [the World Trade Organiza-
tion] delegates” left open ample alternative channels of com-
8
Because the Redondo Beach ordinance leaves open ample alternative
channels irrespective of the availability of local shopping centers for solic-
itation, we do not address the parties’ arguments regarding shopping cen-
ters’ status as public fora under federal and California law.
COMITE DE JORNALEROS v. REDONDO BEACH 8379
munication because the protestors could make their protests
“visible and audible to delegates, even if not as proximate as
the protestors might have liked.” Menotti v. City of Seattle,
409 F.3d 1113, 1138 (9th Cir. 2005). While the challenged
restrictions “were perhaps not ideal for protestors who wanted
to present views in the face of delegates,” id. at 1141, we con-
firmed that “there is no authority suggesting that protestors
have an absolute right to protest at any time and at any place,
or in any manner of their choosing,” id. at 1138-39.
We have struck down ordinances for failure to provide
alternative means of expression only when they effectively
prevent a message from reaching the intended audience. Thus,
in Edwards v. City of Coeur d’Alene, 262 F.3d 856 (9th Cir.
2001), we invalidated an ordinance banning picket signs car-
ried during parades and public assemblies. Id. at 860. Because
the intended audience was “spectators, passersby, and televi-
sion cameras stationed a good distance away,” we concluded
that the alternative channels of communication suggested by
the city, including “shouting, singing, holding a sign in his
hands, or leafleting,” would not enable the speaker to reach
the intended audience. Id. at 867. “As a general rule, parades
and public assemblies involve large crowds and significant
noise,” making it “difficult to see more than a few feet in any
direction, or to hear anyone who isn’t standing nearby.” Id.
Under these circumstances, we held that there was “no other
effective and economical way for an individual to communi-
cate his or her message to a broad audience.” Id. (emphasis
added).
[14] Unlike Edwards, Redondo Beach has not banned the
only effective means to communicate with prospective
employers, who can be reached in safer and less disruptive
ways than by soliciting drivers in the street. As we have
already explained, employment seekers can reach their audi-
ence of potential employers by other means. See supra at
8377-78. Accordingly, Redondo Beach has met its burden of
8380 COMITE DE JORNALEROS v. REDONDO BEACH
demonstrating that the ordinance leaves open ample alterna-
tive avenues of communication.
IV
Although the Redondo Beach ordinance is a valid time,
place, and manner restriction, NDLON argues that the
Redondo Beach ordinance is nevertheless invalid due to
vagueness. Specifically, NDLON argues that the ordinance is
unconstitutionally vague because it fails to provide adequate
notice of what it prohibits and, as a result, chills the speech
of advocacy groups.
[15] As the Supreme Court has explained, “[i]t is a basic
principle of due process that an enactment is void for vague-
ness if its prohibitions are not clearly defined.” Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972). A vague enact-
ment may be void for any of three reasons: (1) it fails to give
a “person of ordinary intelligence a reasonable opportunity to
know what is prohibited”; (2) it “impermissibly delegates
basic policy matters to policemen, judges, and juries for reso-
lution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application”; or (3)
“where a vague statute abut(s) upon sensitive areas of basic
First Amendment freedoms, it operates to inhibit the exercise
of (those) freedoms.” Id. (internal quotation marks omitted).
NDLON locates the Redondo Beach ordinance’s vagueness
in its failure to define the words “solicit,” “attempt to solicit,”
“contributions,” and “business.” Because of this lack of defi-
nition, NDLON asserts that the ordinance offers no guidance
to day laborers as to whether they can “stare at cars on the
roadway, or approach safely stopped vehicles.” NDLON
states that “[a]dvocacy organizations are left to assume that
leafleting parked cars, as well as carrying large signs that are
directed at pedestrians but visible to passing drivers” are
banned by the ordinance. Moreover, NDLON argues that the
ordinance lacks guidance as to whether saying the words,
COMITE DE JORNALEROS v. REDONDO BEACH 8381
“Support Our Cause!” or “Volunteer for Our Organization!”
constitutes requests for contributions or employment, and thus
“individuals must watch what they say or risk going to jail.”
We cannot invalidate an ordinance for vagueness based on
these sorts of hypertechnical, imaginative interpretations and
hypothetical concerns. In Hill, the Supreme Court rejected a
similar vagueness challenge to a statute restricting the unde-
fined terms “protest, education, or counseling,” near a health
care facility. 530 U.S. at 732. The Court stated:
Petitioners proffer hypertechnical theories as to what
the statute covers, such as whether an outstretched
arm constitutes “approaching.” And while “[t]here is
little doubt that imagination can conjure up hypo-
thetical cases in which the meaning of these terms
will be in nice question,” because we are
“[c]ondemned to the use of words, we can never
expect mathematical certainty from our language”
. . . . We thus conclude that “it is clear what the ordi-
nance as a whole prohibits.” More importantly, spec-
ulation about possible vagueness in hypothetical
situations not before the Court will not support a
facial attack on a statute when it is surely valid “in
the vast majority of its intended applications.”
Id. at 733 (citations and footnote omitted). Our subsequent
cases have rejected similar vagueness challenges to unde-
fined, yet commonly understood terms. See, e.g., Gospel Mis-
sions of Am. v. City of L.A., 419 F.3d 1042, 1047-48 (9th Cir.
2005) (rejecting a vagueness challenge to the terms “charita-
ble” and “charitable purpose,” and citing cases rejecting other
speculative vagueness challenges); Cal. Teachers Ass’n v.
State Bd. of Educ., 271 F.3d 1141, 1151-53 (9th Cir. 2001)
(noting “that ‘instruction’ and ‘curriculum’ are words of com-
mon understanding,” and citing cases).
In addition, “otherwise imprecise terms may avoid vague-
ness problems when used in combination with terms that pro-
8382 COMITE DE JORNALEROS v. REDONDO BEACH
vide sufficient clarity.” Gammoh v. City of La Habra, 395
F.3d 1114, 1120 (9th Cir. 2005). For example, in Gammoh,
the ordinance at issue required that adult cabaret dancers per-
form at least two feet from their patrons. 395 F.3d at 1118.
We rejected appellants’ vagueness challenge to the ordi-
nance’s definition of “adult cabaret dancer,” because even
though the statute’s definition of “adult cabaret dancer” con-
tained subjective terms, the prohibited activity was defined
objectively. See id. at 1120. The clarity of the language defin-
ing where activities were prohibited provided adequate notice
of what kind of acts were within the scope of the statute.
Because “it [was] not illegal to be an adult cabaret dancer[,]
only to be an adult cabaret dancer performing within two feet
of a patron,” we held that the ordinance was “certainly not
vague.” Id.
[16] The same analysis is applicable here. The acts pro-
scribed by the Redondo Beach ordinance are no less clear “in
the vast majority of its applications,” Hill, 530 U.S. at 732,
than the activities proscribed by the statute in Hill or other
cases rejecting facial vagueness challenges. The ordinance
provides “a person of ordinary intelligence fair notice of what
is prohibited.” United States v. Williams, 553 U.S. 285, 128
S. Ct. 1830, 1845 (2008). In the context of the ordinance as
a whole, it is clear that the ordinance prevents acts of solicita-
tion that risk interfering with the flow of traffic. Therefore, it
is not reasonable to read the ordinance as preventing day
laborers from staring at or approaching legally parked cars,
carrying signs, or shouting slogans.
NDLON also argues that people may read the word “solici-
tation” as banning the distribution of literature requesting
donations or employment. We are doubtful that this is a real-
istic concern. The ordinance as a whole is aimed at uniquely
disruptive activities that cause traffic congestion, which
would ordinarily not include the unilateral distribution of leaf-
lets. See ACORN, 798 F.2d at 1268. Further, the subsection of
the ordinance prohibiting drivers from hiring people on the
COMITE DE JORNALEROS v. REDONDO BEACH 8383
street indicates that the ordinance targets transactions requir-
ing a response, and not the distribution of literature.
[17] Even if the meaning of the word “solicitation” were
not completely clear based on the context, any residual vague-
ness would be dispelled by Redondo Beach’s construction of
the ordinance, as well as our interpretation of the substantially
similar ordinance in ACORN. See Berger, 569 F.3d at 1040
n.6 (indicating that an ordinance of questionable
constitutionality—a permit requirement that applied to an
individual speaker—was saved by narrowing constructions in
a county executive order and a judicial interpretation). For a
vagueness challenge, “we must consider the City’s limiting
construction of the ordinance.” Foti, 146 F.3d at 639; see Cal.
Teachers Ass’n, 271 F.3d at 1151 (indicating that a statute’s
vagueness does not exceed constitutional limits if it is subject
to a narrowing construction). As we have explained, see supra
part III.A., Redondo Beach’s ordinance prohibits in-person
demands requiring an immediate response from drivers in
traffic lanes, not the distribution of literature to drivers.
Therefore the ordinance’s use of the word “solicit” does not
make the ordinance unconstitutionally vague.
Nor do we agree with NDLON’s argument that the ordi-
nance is impermissibly vague because it invites arbitrary or
discriminatory enforcement. The undefined terms in the ordi-
nance do not require “wholly subjective judgments without
. . . narrowing context, or settled legal meanings.” Williams,
128 S. Ct. at 1846. Whether a person is engaged in the act of
soliciting contributions, business, or employment from the
occupant of a vehicle (or whether the occupant of a vehicle
is responding to the same) requires “a true-or-false determina-
tion, not a subjective judgment such as whether conduct is
‘annoying’ or ‘indecent.’ ” Id. Without this subjectivity, there
is less “danger that a police officer might resort to enforcing
the ordinance only against [speakers] whose messages the
officer or the public dislikes.” Foti, 146 F.3d at 639 (emphasis
added).
8384 COMITE DE JORNALEROS v. REDONDO BEACH
V
Finally, we consider the dissent’s argument that ACORN
cannot guide our analysis of NDLON’s facial challenge to
Redondo Beach’s ordinance because it considered only an as-
applied challenge to the Phoenix ordinance and should be
confined to its facts. Dissent at 8399-8400. Contrary to the
dissent’s assertion, ACORN considered and rejected an over-
breadth challenge to the Phoenix ordinance. 798 F.2d at 1272.
After explaining that the overbreadth doctrine allows parties
“whose own conduct may be unprotected” to challenge
broadly written statutes that might deter protected conduct of
third parties, id. (internal quotation marks omitted), we con-
sidered ACORN’s argument that “even if its ‘tagging’ of vehi-
cles stopped at intersections is unprotected, the Phoenix
ordinance may be challenged on its face as overbroad because
its prohibition extends further to solicitation on the sidewalks
of Phoenix, during parades or demonstrations, or on streets
closed to vehicle traffic,” id. We rejected ACORN’s argument
that the ordinance would deter a range of hypothetical activi-
ties by third parties because those theories ran “completely
contrary to the language of the ordinance,” id. at 1273, which
we construed as prohibiting “only solicitation in the streets
from the occupants of any vehicle,” id. at 1272 (internal quo-
tation marks omitted). For this reason, we held that “[t]he
ordinance is sufficiently narrow to withstand an overbreadth
challenge.” Id. at 1273. ACORN requires us to construe the
substantially identical Redondo Beach ordinance in the same
manner.
Even if ACORN did not address an overbreadth challenge,
as a matter of logic, ACORN’s validation of Phoenix’s statute
poses a high barrier to a facial challenge of any similar ordi-
nance. As the Supreme Court has recently explained, to suc-
ceed in “a typical facial attack,” a plaintiff must establish
“that no set of circumstances exists under which [the chal-
lenged ordinance] would be valid, or that the statute lacks any
plainly legitimate sweep.” United States v. Stevens, 130 S. Ct.
COMITE DE JORNALEROS v. REDONDO BEACH 8385
1577, 1587 (2010). The bar is lower in the First Amendment
context, however, where “a law may be invalidated as over-
broad if a substantial number of its applications are unconsti-
tutional, judged in relation to the statute’s plainly legitimate
sweep.” Id. (internal quotation marks omitted). Even under
this less stringent standard, it is unclear how NDLON could
establish that the Redondo Beach ordinance is invalid in a
substantial number of its applications when we have already
held that the Phoenix ordinance is constitutional in the range
of applications identified in ACORN. See ACORN, 798 F.2d
at 1273. Although our decision in ACORN would not preclude
NDLON from arguing that the Redondo Beach ordinance was
unconstitutional as applied to its members’ solicitations,
NDLON does not bring such an as-applied challenge here.
VI
[18] We therefore hold that Redondo Beach’s ordinance
sweeps no more broadly than the Phoenix ordinance in
ACORN. Under ACORN, and subsequent cases affirming
ACORN’s central holding, we hold that the Redondo Beach
ordinance is a reasonable time, place, or manner restriction.
The district court erred in determining that it was not bound
by ACORN, and as a result erred in holding that the Redondo
Beach ordinance was not narrowly tailored and did not leave
open ample alternative channels of communication. We also
hold that the Redondo Beach ordinance is not unconstitution-
ally vague. Because we reverse the district court’s summary
judgment in favor of appellees and hold that appellants are
entitled to summary judgment in their favor, we reverse the
district court’s award of attorneys’ fees to appellees.
REVERSED.
WARDLAW, Circuit Judge, dissenting:
I respectfully dissent from the majority’s holding that the
Redondo Beach (“City”) ordinance is a valid time, place, and
8386 COMITE DE JORNALEROS v. REDONDO BEACH
manner restriction upon speech occurring on the City’s side-
walks and other public ways—the most traditional of public
fora. In the words of Redondo Beach City Attorney Gordon
C. Phillips, who recommended the ordinance’s adoption to the
City’s Mayor and Council Members, the ordinance “prohibits
any person from soliciting from the street ‘employment, busi-
ness or contributions’ from occupants of vehicles.” The ordi-
nance is facially overbroad and thus violates well-established
principles of our First Amendment jurisprudence.
Nor is the ordinance “readily susceptible” to the majority’s
cramped reading of it as a mere prohibition of “direct, in-
person demands requiring an immediate response from driv-
ers in traffic lanes.” Not even the City has urged this narrow
construction of the ordinance. To the contrary, the City argues
that the ordinance permits in-person demands directed at driv-
ers who then stop at parking lots. Moreover, the “aim” of the
ordinance, and the manner in which the City has selected to
enforce it, are simply not relevant considerations when ana-
lyzing a claim of facial overbreadth, as the Supreme Court
recently reaffirmed in United States v. Stevens. See 130 S. Ct.
1577, 1591 (2010). The majority inappropriately clings to its
subjective and selective interpretation of our opinion in
ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986), as
fragile life support for its conclusion. The ACORN decision,
however, is an inapposite as-applied solicitation case that the
district court here and all of our subsequent authority, includ-
ing our recent en banc decision in Berger v. City of Seattle,
569 F.3d 1029 (9th Cir. 2009), have limited to its facts.
ACORN holds only that the Phoenix ordinance is constitu-
tional as applied to the invasive practice of “tagging”; the
question of constitutional facial overbreadth was not even
before our court on appeal, and the argument that the ACORN
court did address under the misnomer of facial overbreadth
was ACORN’s claim that the ordinance was overbroad
because there were some locations in Phoenix where ACORN
—as opposed to third parties not before the court—might
safely “tag.”
COMITE DE JORNALEROS v. REDONDO BEACH 8387
Finally, the majority improperly dispenses with the bedrock
principles underlying the protection of speech in a traditional
public forum which limit restrictions on protected speech to
those narrowly tailored to achieve significant government
interests and leaving open alternative avenues of communica-
tion. The Redondo Beach ordinance fails to meet this stan-
dard. I would therefore affirm the district court’s judgment
that the ordinance is a facially overbroad, unconstitutional
restriction on speech and the award of attorneys’ fees to
Appellees.
I.
On any given day in the State of California, 40,000 individ-
uals are either employed as day laborers or are seeking day
labor jobs. See Arturo Gonzalez, Day Labor in the Golden
State, Cal. Econ. Pol’y, July 2007, at 1. Known in Spanish as
“jornaleros,” day laborers frequently serve as independent
contractors and perform a variety of services, including gar-
dening, housekeeping, and construction. Because of the tem-
porary, informal nature of their employment, day laborers
must forgo more traditional forms of advertising to signal
their availability for work. Instead, to offer themselves for
employment, they must congregate in a visible public place
known to potential employers. This visibility has made day
laborers the target of local regulators, often because of a per-
ception that they pose a threat to public safety or that they are
undocumented immigrants. Id.
The congregation of day laborers on public sidewalks
spurred the City to enact Municipal Code § 3-7.1601 in 1987
(“Ordinance”). The Ordinance provides:
(a) It shall be unlawful for any person to stand on a
street or highway and solicit, or attempt to solicit,
employment, business, or contributions from an
occupant of any motor vehicle. For purposes of this
section, “street or highway” shall mean all of that
8388 COMITE DE JORNALEROS v. REDONDO BEACH
area dedicated to public use for public street pur-
poses and shall include, but not be limited to, road-
ways, parkways, medians, alleys, sidewalks, curbs,
and public ways.
Two years later, the City enacted subsection (b), which pro-
vides:
(b) It shall be unlawful for any person to stop, park
or stand a motor vehicle on a street or highway from
which any occupant attempts to hire or hires for
employment another person or persons.
According to the City Attorney, the Ordinance was enacted in
response to complaints from local residents and business own-
ers about day laborers gathering along city streets and congre-
gating on sidewalks. They complained that the day laborers
impeded the flow of traffic, littered, damaged property, and
harassed females.
In recent years, the Ordinance has been enforced aggres-
sively by the Police Department, which concluded that verbal
and written warnings to day laborers and their potential
employers were ineffective, due mostly to the lack of any
follow-up enforcement. As a result, in October and November
2004, the police launched a sweeping sting operation called
the “Day Labor Enforcement Project.” The police conducted
the sting operation in three phases, covering various hours of
the day during which day laborers congregated. Undercover
police officers posing as employers offered employment to
the assembled day laborers and arrested those who accepted.
Comite de Jornaleros de Redondo Beach v. City of Redondo
Beach, 475 F. Supp. 2d 952, 955 (C.D. Cal. 2006). The opera-
tion ultimately netted around sixty arrests. Those arrested and
convicted of violating the Ordinance received three years of
probation, a 180 day suspended sentence, a $314.00 booking
fee, and were enjoined to stay 150 yards away from the public
sidewalk where they were arrested. The Ordinance has thus
COMITE DE JORNALEROS v. REDONDO BEACH 8389
prohibited day laborers in the City from engaging in solicita-
tion signaling their availability for work, and, effectively,
from obtaining employment.
Two unincorporated day laborer associations, Comite de
Jornaleros de Redondo Beach (“Jornaleros”) and the National
Day Laborer Organizing Network (“NDLON”) filed suit in
the Central District of California seeking monetary, injunc-
tive, and declaratory relief on the grounds that the Ordinance
violates their day laborer members’ right to free speech under
the First and Fourteenth Amendments.1 The district court pre-
liminarily enjoined the City from enforcing the Ordinance or
1
Day laborers comprise Jornaleros’s and NDLON’s membership. Both
associations exist to protect and advance the interests of day laborers—a
goal that is unquestionably hampered by the Redondo Beach ordinance.
Thus, I agree with the district court’s ruling that Plaintiffs have standing
to pursue their constitutional challenge.
Although I agree that NDLON and Jornaleros have standing, the major-
ity gives Redondo Beach’s standing argument short shrift. Redondo Beach
argues that plaintiffs cannot “satisfy the Lujan test for standing because
plaintiffs have not demonstrated a legally protected interest—i.e., the legal
right to work in the United States.” The City asserts that “plaintiffs are
soliciting the commission of a crime by the prospective employers (hiring
an illegal alien) and they seek to commit a crime of their own (working
in the United States without a legal right to do so).” Redondo Beach con-
tends that “[j]ust as state laws against prostitution and drug dealing are not
open to challenge by those who seek to violate them, day laborers who are
soliciting work without the legal right to work in the United States have
no standing to challenge Redondo Beach’s anti-solicitation ordinance.”
The City’s underlying assumption is that all day laborers are “illegal
aliens,” and are therefore criminally prohibited from seeking jobs in the
United States. This assumption, however, is neither supported by the facts
of this case nor the law. But even if the City’s prejudgment as to the day
laborers’ immigration status were correct, it is legally beside the point.
The First Amendment protects individuals, regardless of their immigration
status. Am-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045,
1063-64 (9th Cir. 1995), rev’d on other grounds, 525 U.S. 471 (1999); see
also Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Aliens, even aliens whose
presence in this country is unlawful, have long been recognized as ‘per-
sons’ guaranteed due process of law by the Fifth and Fourteenth Amend-
ments.”).
8390 COMITE DE JORNALEROS v. REDONDO BEACH
any violations of probation following convictions under the
Ordinance, and it mandated continuances of any ongoing
prosecutions. Comite, 475 F. Supp. 2d at 956. The City
appealed the grant of the preliminary injunction and a three-
judge panel of our court unanimously affirmed. Comite de
Jornaleros de Redondo Beach v. City of Redondo Beach, 127
F. App’x 994 (9th Cir. 2005). The parties then filed cross-
motions for summary judgment on the facial constitutionality
of the Ordinance. The district court ruled that although the
Ordinance is content neutral, it is unconstitutionally over-
broad. The district court specifically rejected the City’s con-
tention that our opinion in ACORN v. City of Phoenix was
controlling precedent, correctly determining that ACORN
involved an “as-applied” challenge and was otherwise distin-
guishable on its facts. Comite, 475 F. Supp. 2d at 964-65.
Concluding that the Ordinance was not narrowly tailored to
achieve the City’s significant interests in traffic flow and
safety, and finding that the City presented no evidence of an
available alternative means of communication, the district
court determined that the Ordinance is not a valid time, place,
or manner restriction on speech. Id. at 968. The court perma-
nently enjoined the City from enforcing the Ordinance, and
this appeal ensued. Id.
II.
The First Amendment fully protects solicitation. Vill. of
Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620,
628-32 (1980); Berger, 569 F.3d at 1050. As we have stated,
“It is beyond dispute that solicitation is a form of expression
entitled to the same constitutional protections as traditional
speech.” ACLU v. City of Las Vegas (ACLU II), 466 F.3d 784,
792 (9th Cir. 2006). Solicitation “is characteristically inter-
twined with informative and perhaps persuasive speech seek-
ing support for particular causes.” Vill. of Schaumburg, 444
U.S. at 632. Without it, “the flow of such information and
advocacy would likely cease.” Id. The protection afforded
COMITE DE JORNALEROS v. REDONDO BEACH 8391
solicitation is not reduced simply because the solicitor seeks
to have an individual contribute money. See Bates v. State Bar
of Arizona, 433 U.S. 350, 363 (1977). Because solicitation
requires effective access to the public, “[r]ules that regulate
solicitation in public fora are . . . subject to the same standards
as those that limit other forms of speech.” Berger, 569 F.3d
at 1050; see also ACLU II, 466 F.3d at 792 (“It is beyond dis-
pute that solicitation is a form of expression entitled to the
same constitutional protections as traditional speech.”).
Therefore, the Ordinance burdens fully protected speech in
traditional public fora.
Nonetheless, the majority characterizes the Ordinance as
regulating only conduct. This is not the case; it plainly “pro-
hibits any person from soliciting from the street ‘employment,
business, or contributions’ from occupants or vehicles,” as the
City Attorney describes it. Our case law holds that such bans
on solicitation are bans on speech. In Berger, our court, sitting
en banc, confronted a regulation that prevented street per-
formers from “actively solicit[ing] donations, for example by
live or recorded word of mouth, gesture, mechanical devices,
or second parties.” 569 F.3d at 1050. We explicitly rejected
the city’s contention that this provision merely regulated con-
duct, finding instead that it regulated speech by seeking to
restrict the “medium and manner” of that speech. Id. at 1051.
Here, too, the Ordinance’s text does not prohibit conduct,
such as the immediate transfer of funds. Rather, just like the
active solicitation ban in Berger, the Ordinance regulates the
“medium and manner” of protected speech.
Worse, the prohibition on protected speech operates exclu-
sively on the public streets and sidewalks of Redondo Beach
quintessential public fora. Berger, 569 F.3d at 1036 & n.3;
ACLU v. City of Las Vegas (ACLU I), 333 F.3d 1092, 1099
(9th Cir. 2001); see also United States v. Grace, 461 U.S.
171, 177 (1983). Public streets are public fora by their very
nature; no governmental action designating them as such is
required. Grace, 461 U.S. at 177; see also U.S. Postal Serv.
8392 COMITE DE JORNALEROS v. REDONDO BEACH
v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 133
(1981) (“Congress, no more than a suburban township, may
not by its own ipse dixit destroy the ‘public forum’ status of
streets and parks . . . .”). Streets and other public fora “oc-
cup[y] a special position in terms of First Amendment protec-
tion.” Grace, 461 U.S. at 180.
This “special position” of traditional public fora is the
product of more than a century of Supreme Court precedent,
and it is now well established. Dicta by Justice Roberts in
Hague v. Committee for Industrial Organization, 307 U.S.
496 (1939), first articulated a view of traditional public fora
that exalted the individual’s right to speak and assemble over
the state’s proprietary interest. The Hague Court invalidated
a city ordinance requiring a permit for any public parade or
assembly “in or upon the public streets, highways, public
parks or public buildings.” Id. at 503 n.1. Justice Roberts,
writing for himself and Justice Black, famously wrote:
Wherever the title of streets and parks may rest, they
have immemorially been held in trust for the use of
the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts
between citizens, and discussing public questions.
Such use of the streets and public places has, from
ancient times, been a part of the privileges, immuni-
ties, rights, and liberties of citizens.
Id. at 515. Under this view, the existence of traditional public
fora is inextricably intertwined with their historical status as
places for important expressive activity. This dicta ultimately
established a First Amendment easement, allowing individu-
als to commandeer public fora for expressive purposes. Harry
Kalven, Jr., The Concept of the Public Forum: Cox v. Louisi-
ana, 1965 UCLA L. Rev. 1, 12-13. It has become an unassail-
able principle of the First Amendment and is the foundation
of the modern public fora doctrinal framework. See, e.g.,
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
COMITE DE JORNALEROS v. REDONDO BEACH 8393
37, 45 (1983); Kunz v. New York, 340 U.S. 290, 293-94
(1951); Jamison v. Texas, 318 U.S. 413, 415 (1943). Conse-
quently, in Berger, our most recent exegesis on the subject,
we recognized the “bedrock principle” that the “protections
afforded by the First Amendment are nowhere stronger than
in streets and parks.” Berger, 569 F.3d at 1035-36 (footnote
omitted).
The government’s power to pass laws, regulations, or ordi-
nances affecting speech in these areas is therefore strictly lim-
ited. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132
(2009); see also Capitol Square Rev. & Advisory Bd. v.
Pinette, 515 U.S. 753, 761 (1995) (“[A] State’s right to limit
protected expressive activity [in a traditional public fora] is
sharply circumscribed . . . .”). This is not a jurisprudential
accident; as places where individuals may express themselves
without regard to the resources of the speaker or popularity of
the message, traditional public fora serve as the main bulwark
of the First Amendment. See Int’l Soc’y for Krishna Con-
sciousness, Inc. v. Lee, 505 U.S. 672, 708 (1992) (Kennedy,
J., concurring) (“One of the primary purposes of the public
forum is to provide persons who lack access to more sophisti-
cated media the opportunity to speak.”); cf. Kalven, supra, at
12. Whether the First Amendment is viewed as a means for
pursuing truth or ensuring self-expression,2 meaningful access
2
For example, Professor Martin Redish construes the First Amendment
as ultimately serving the principle of “individual self realization”—the
ability of individuals to realize their full potential and the goals they have
set for their lives. See generally Martin H. Redish, The Value of Speech,
130 U. Pa. L. Rev. 591 (1982). Alexander Meiklejohn viewed the First
Amendment as aiding individuals in making the informed decisions criti-
cal for self-government. See Alexander Meiklejohn, Political Freedom
24-28 (1960). Perhaps most famously, John Stuart Mill argued that a
“marketplace of ideas” was required insofar as “[c]omplete liberty of con-
tradicting and disproving our opinion is the very condition which justifies
us in assuming its truth for purposes of action.” John Stuart Mill, On Lib-
erty 11 (Longmans, Green, & Co. 1921) (1859). Broad access to tradi-
tional public fora directly advances each of these asserted interests.
8394 COMITE DE JORNALEROS v. REDONDO BEACH
to society is fundamental. See Thomas I. Emerson, The Sys-
tem of Freedom of Expression 305-06 (1970). Thus, open
access to traditional public fora guarantees the continued
vitality of the First Amendment, especially in light of the
growing privatization of many traditional public fora. See
PruneYard Shopping Center v. Robins, 447 U.S. 74, 90-91
(1980) (Marshall, J., concurring).
Of course, individuals’ First Amendment rights on public
ways are not absolute; the government has the authority to
pass reasonable time, place, or manner restrictions. To pass
constitutional muster, however, the government must demon-
strate that the regulation is “ ‘justified without reference to the
content of the regulated speech, that [it is] narrowly tailored
to serve a significant governmental interest, and that [it]
leave[s] open ample alternative channels for communication
of the information.’ ” Lee v. Katz, 276 F.3d 550, 557 (9th Cir.
2002) (quoting Ward v. Rock Against Racism, 491 U.S. 781,
791 (1981)). When applying this test, courts must not lose
sight of the core constitutional liberties that are implicated.
Freedom of speech is one of the “fundamental personal rights
and liberties” guaranteed the public; this characterization “is
not an empty one and [is] not lightly used.” Schneider v. New
Jersey, 308 U.S. 147, 161 (1939). The fundamental nature of
the right “stresses . . . the importance of preventing the restric-
tion of enjoyment of these liberties.” Id. When the govern-
ment infringes the public’s fundamental right to assemble and
speak, courts must approach the regulation skeptically and
place the onus squarely on the government to justify the
enacted regulation. Cf. Long Beach Area Peace Network v.
City of Long Beach, 574 F.3d 1011, 1022 (9th Cir. 2009)
(“ ‘Public fora have achieved a special status in our law; the
government must bear an extraordinarily heavy burden to reg-
ulate speech in such locales.’ ” (quoting NAACP v. City of
Richmond, 743 F.2d 1346, 1355 (9th Cir. 1984)).
The City has failed to meet this heavy burden. Subsection
(a) of the Ordinance is a total ban on speech in traditional
COMITE DE JORNALEROS v. REDONDO BEACH 8395
public fora, while subsection (b) prohibits persons in even
lawfully parked cars from hiring, or attempting to hire, any-
one for employment. On its face, the Ordinance sweeps far
more broadly than what is justified by the City’s interests in
traffic flow and safety, and it does not leave open ample alter-
natives for communication.3 Ignoring the full body of juris-
prudence governing speech in public fora, the majority seizes
upon one inapposite decision of our court, in which we
addressed an as-applied challenge to a similar ordinance, to
hold the Ordinance constitutional.
A. ACORN v. City of Phoenix Does Not Apply to, Much
Less Control, this Appeal.
The majority opinion rests entirely on ACORN v. City of
Phoenix to conclude that the Ordinance is a valid time, place,
or manner regulation. The ACORN court, however, con-
fronted a very specific, narrow set of circumstances to which
the parties in that case stipulated and to which we have subse-
quently confined it. Thus, the ACORN decision does not con-
trol this case.
In ACORN, the Association of Community Organizations
for Reform Now (“ACORN”) claimed that a Phoenix ordi-
nance restricting solicitation infringed its First Amendment
rights. ACORN engaged in a practice referred to as “tagging”
as part of its effort to raise funds for promoting the concerns
of low and moderate income citizens. ACORN, 798 F.2d at
1262. Phoenix officials specifically warned ACORN that its
practice of tagging violated the city ordinance prohibiting an
individual from “stand[ing] on a street or highway and soli-
cit[ing], or attempt[ing] to solicit, employment, business or
contributions from the occupants of any vehicle.” Id. ACORN
then instituted a civil rights action in federal district court,
3
For present purposes, I assume that the district court’s conclusion that
the regulation is content neutral is correct. However, this is a closer ques-
tion than it appears. See Berger, 569 F.3d at 1051.
8396 COMITE DE JORNALEROS v. REDONDO BEACH
seeking damages pursuant to 42 U.S.C. § 1983 and a declara-
tory judgment that the ordinance was either inapplicable to its
tagging practice or unconstitutional. Id. Before the district
court, the ACORN parties entered into a stipulation, which,
among other things, agreed to the precise conduct at issue:
Within the City of Phoenix, various of the plaintiffs
have implemented . . . various fund solicitation and
information dissemination programs . . . . Said pro-
grams are commonly known as ‘tagging,’ which usu-
ally involves an individual stepping into the street
and approaching a car when it is stopped at a red
light. The individual asks for a contribution to
his/her cause, and when such a contribution is given,
the solicitor gives the contributor a slip of paper pro-
viding information concerning his/her cause, —e.g.,
where and how to participate in the cause, how to
become involved further, and so forth.
Pretrial Order at 3, ACORN v. City of Phoenix, 603 F. Supp.
869 (D. Ariz. 1985) (No. 83-870) (emphasis added). The dis-
trict court found that the ordinance was constitutional as
applied to ACORN’s practice of soliciting contributions by
tagging. See ACORN, 603 F. Supp. at 872.
We agreed that the ordinance was constitutional as applied
to ACORN’s tagging practices as defined by the parties. We
held that the “Phoenix ordinance is aimed narrowly at the dis-
ruptive nature of fund solicitation from the occupants of vehi-
cles. Direct communication of ideas, including the
distribution of literature to occupants in vehicles, is not
restricted.” ACORN, 798 F.2d at 1268. Our decision focused
exclusively on the disruption to drivers temporarily stopped
on the road in the midst of traffic and to the flow of traffic
itself caused by persons stepping into the street seeking an
immediate contribution of money from the driver:
Unlike oral advocacy of ideas, or even the distribu-
tion of literature, successful solicitation requires the
COMITE DE JORNALEROS v. REDONDO BEACH 8397
individual to respond by searching for currency and
passing it along to the solicitor. Even after the solici-
tor has departed, the driver must secure any change
returned, replace a wallet or close a purse, and then
return proper attention to the full responsibilities of
a motor vehicle driver.
Id. at 1269. The majority takes this quote out of context to
support its broader reading of the ACORN decision to uphold
bans on all types of solicitation. Read properly, however,
ACORN focused entirely on the practice of in-person, imme-
diate demands for funds in the street that actually disrupt the
driver from continuing on.
Contrary to the majority’s assertion, the ordinance we
upheld in ACORN and the City’s Ordinance differ in critical
respects. The Phoenix ordinance involved in ACORN prohib-
ited “solicitation” only by people who were standing in a
street or highway. It provided:
No person shall stand on a street or highway and
solicit, or attempt to solicit, employment, business or
contributions from the occupants of any vehicle.
ACORN, 798 F.2d at 1262 (quoting Phoenix City Ordinance
§ 36-101.01). By contrast, and despite the majority’s strained
efforts to limit it, the City’s Ordinance sweeps far more
broadly. First, the Phoenix ordinance applied only to solicita-
tion on streets and highways. The Redondo Beach Ordinance
applies to “all of that area dedicated to public use for public
street purposes and shall include, but not be limited to, road-
ways, parkways, medians, alleys, sidewalks, curbs, and public
ways.” Redondo Beach Municipal Code § 3-7.1601(a). The
ACORN decision itself recognized the greater importance of
sidewalks to expressive activity, reasoning:
As a practical matter, there are indeed substantial
differences in nature between a street, kept open to
8398 COMITE DE JORNALEROS v. REDONDO BEACH
motorized vehicle traffic, and a sidewalk or public
park. A pedestrian ordinarily has an entitlement to be
present upon the sidewalk or on the grounds of a
park and thus is generally free at all times to engage
in expression and public discourse at such locations.
This is obviously not true of streets continually filled
with pulsing vehicle traffic. Consequently, more so
than with sidewalks or parks, courts have recognized
a greater governmental interest in regulating the use
of city streets.
ACORN, 798 F.2d at 1267. Second, the Ordinance contains
subsection (b), which covers an entire category of individuals
—potential employers—that the Phoenix ordinance left
unregulated. The City provides no justification for prohibiting
willing listeners from lawfully stopping their vehicles for the
purpose of lawfully “hir[ing] for employment another person
or persons.” Given its greater breadth in terms of where and
to whom it applies, the City’s Ordinance “sweeps in a much
larger amount of ‘solicitation’ speech and speech-related con-
duct than the ordinance at issue in ACORN” and the holding
as to the narrower statute does not control our review of the
broader.4 Comite, 475 F. Supp. 2d at 964-65.
Our court has also subsequently made clear the narrow
reach of the ACORN decision. In ACLU II, we construed
ACORN as upholding “a ban on in-hand solicitation from
automobiles.” 466 F.3d at 794. More recently, sitting en banc,
we explicitly rejected the expansive reading of ACORN by the
majority here, concluding that it only upheld a prohibition on
“the immediate physical exchange of money.” Berger, 569
4
It is of no import that the City Attorney attempted to craft an ordinance
modeled on the Phoenix ordinance at issue in ACORN. The City obviously
failed to do so, and no amount of back-pedaling—short of amending the
Ordinance—can fix it now. By its plain terms the Redondo Beach Ordi-
nance reaches much more First Amendment protected expression than did
the Phoenix ordinance.
COMITE DE JORNALEROS v. REDONDO BEACH 8399
F.3d at 1052 n.23. A careful reading of the ACORN decision
itself, as well as our subsequent interpretation of its holding,
make clear that it upheld the constitutionality of a narrower
ordinance only as applied to a highly invasive form of solici-
tation on the streets for an immediate exchange of funds that
actually disrupted traffic.
The majority belatedly suggests that ACORN presented a
facial overbreadth challenge to the Phoenix ordinance. The
district court had rejected this challenge as untimely, see
ACORN, 603 F. Supp. at 872, but our court allowed ACORN
to make its “overbreadth” argument because it agreed with the
trial court’s conclusion (after trial) that “there was no evi-
dence to suggest that the Phoenix ordinance curtailed any
activity other than solicitation from vehicles at an intersec-
tion.” ACORN, 798 F.2d at 1272. Although our court labeled
this challenge as one of facial overbreadth, the argument
ACORN actually made was not the type of facial challenge
we recognize in the First Amendment context. As the Court
said in Stevens, “In the First Amendment context . . . this
Court recognizes ‘a second type of facial challenge,’ whereby
a law may be invalidated as overbroad if ‘a substantial num-
ber of its applications are unconstitutional, judged in relation
to the statute’s plainly legitimate sweep.’ ” 130 S. Ct. at 1587
(quoting Wash. St. Grange v. Wash. St. Republican Party, 552
U.S. 442, 449 n.6 (2008)). In the First Amendment area liti-
gants “are permitted to challenge a statute not because their
own rights of free expression are violated, but because of a
judicial prediction or assumption that the statute’s very exis-
tence may cause others not before the court to refrain from
constitutionally protected speech or expression.” Broadrick v.
Oklahoma, 413 U.S. 601, 612 (1973).
ACORN’s briefs on appeal to our court demonstrate that its
so-called “facial challenge” was not what we have long con-
sidered a First Amendment overbreadth challenge. All that
ACORN argued was that the Phoenix ordinance regulated its
own tagging activity “too broadly.” Plaintiff-Appellants’
8400 COMITE DE JORNALEROS v. REDONDO BEACH
Reply Brief at 18, ACORN v. City of Phoenix, 798 F.2d 1260
(No. 85-1810). The City of Phoenix, in its own reading of
ACORN, also recognized ACORN’s argument for what it was
—a simple argument that the ordinance “seeks to prohibit
‘tagging’ not just on the roadway, but also on sidewalks and
other ‘safe’ locations.”5 Brief of Appellees at 13, ACORN v.
City of Phoenix, 798 F.2d 1260 (No. 85-1810). No “speech”
other than tagging was at issue; no other party’s interests but
ACORN’s were asserted.
By contrast, the plaintiffs here make only a First Amend-
ment facial overbreadth challenge to the Ordinance. There-
fore, neither ACORN’s as-applied holding nor its so-called
overbreadth holding is applicable, much less controlling. We
must find the Redondo Beach Ordinance unconstitutional if a
danger exists that the Ordinance will “significantly compro-
mise recognized First Amendment protections of parties not
before the Court.” City Council of L.A. v. Taxpayers for Vin-
cent, 466 U.S. 789, 801 (1984); see also ACLU II, 466 F.3d
at 790 n.9 (“’Facial challenges to overly broad statutes are
allowed not primarily for the benefit of the litigant, but for the
benefit of society—to prevent the statute from chilling the
First Amendment rights of other parties not before the
court.’ ” (quoting Sec’y of State v. Joseph H. Munson Co., 467
U.S. 947, 958 (1984))). This inquiry requires us to look
beyond the application in the present case and examine the
potential scope of the statute because “ ‘[t]he threat of sanc-
tions may deter [speech] almost as potently as the actual
5
The ACORN panel dismissed this argument as “simply represent[ing]
a misreading of the Phoenix ordinance. The ordinance does not prohibit
all solicitation even in the streets. It prohibits only solicitation in the
streets ‘from the occupants of any vehicle.’ ” ACORN, 798 F.2d at 1272.
To the extent language in the ACORN opinion purports to consider a “fa-
cial overbreadth” argument that is anything other than the tagging rights
ACORN asserts, it is obviously dicta. See Espinosa v. United Student Aid
Funds, Inc., 553 F.3d 1193, 1199 n.3 (9th Cir. 2008) (“Anything [a prior
case] has to say as to matters not presented in that case is, in any event,
dicta and thus not binding on us.”).
COMITE DE JORNALEROS v. REDONDO BEACH 8401
application of sanctions. Because First Amendment freedoms
need breathing space to survive, government may regulate in
the area only with narrow specificity.’ ” IDK, Inc. v. Clark
County, 836 F.2d 1185, 1190 (9th Cir. 1988) (quoting NAACP
v. Button, 371 U.S. 415, 433 (1963)); see also Broadrick, 413
U.S. at 611-12 (“It has long been recognized that the First
Amendment needs breathing space and that statutes attempt-
ing to restrict or burden the exercise of First Amendment
rights must be narrowly drawn and represent a considered leg-
islative judgment that a particular mode of expression has to
give way to other compelling needs of society.”).
However, even if plaintiffs had brought an as-applied chal-
lenge, their solicitation of employment could not be more dis-
tinct from conduct causing immediate disruption of traffic
flow. As the City itself argues, “ACORN addressed the appli-
cation of an essentially identical ordinance to people who
went into the street to solicit cars that already had stopped at
a red light.” The evils found by the ACORN court—all associ-
ated with an individual entering the street itself, approaching
a captive target, and requesting the immediate exchange of
money—are simply not implicated where a willing driver
approaches a willing would-be employee. Cf. Hill v. Colo-
rado, 530 U.S. 703, 715-16 (2000) (“It is also important . . .
to recognize the significant difference between state restric-
tions on a speaker’s right to address a willing audience and
those that protect listeners from unwanted communication.”).
Furthermore, the speech at issue here does not involve solici-
tation, or attempted solicitation, of immediate, in-hand contri-
butions of funds. In fact, the record demonstrates (1) no
Jornaleros or NDLON members were arrested for soliciting
an immediate exchange of funds, and (2) day laborers have
been arrested simply for being on the sidewalk and approach-
ing a stopped vehicle. The very nature of the potential
employer/day laborer relationship belies the majority’s asser-
tion that an immediate exchange of money is required. No
rational employer would pay the day laborer before the work
8402 COMITE DE JORNALEROS v. REDONDO BEACH
was performed. Indeed, there is no demand that an unwilling
driver do anything at all.
Day laborers in the City have not been prosecuted under
this Ordinance for requesting an immediate, in-hand contribu-
tion of money. The majority’s use of ACORN to justify the
application of the Ordinance to their activities, therefore, rep-
resents a marked expansion of ACORN’s scope directly con-
trary to controlling precedent. More fundamentally, as an as-
applied challenge, ACORN did not address the broader ques-
tion that we are now called on to answer.
B. The Ordinance Is Not Narrowly Tailored to Legitimate
Governmental Interests.
The Ordinance is not a valid time, place, or manner restric-
tion because it is not narrowly tailored to the significant gov-
ernmental interests asserted by the City.6 To be narrowly
tailored, an ordinance must “ ‘promote[ ] a substantial govern-
ment interest that would be achieved less effectively absent
the regulation’ ” and may not “burden substantially more
speech than is necessary to further the government’s legiti-
mate interests.” Ward, 491 U.S. at 799 (quoting United States
v. Albertini, 472 U.S. 675, 689 (1985)). A narrowly tailored
ordinance is one that “ ‘target[s] and eliminate[s] no more
than the exact source of the ‘evil’ it seeks to remedy.’ ” ACLU
II, 466 F.3d at 796 n.13 (quoting Menotti v. City of Seattle,
409 F.3d 1113, 1031-32 (9th Cir. 2005)). The Ordinance, on
its face, sweeps far more broadly than necessary to advance
6
The district court correctly found, and Jornaleros and NDLON do not
challenge, that the City has significant interests in traffic flow and safety,
crime prevention, and esthetic appearance of the public fora. Comite, 475
F. Supp. at 964 (citing Metromedia, Inc. v. City of San Diego, 453 U.S.
490, 507-08 (1981); Heffron v. Int’l Soc’y for Krishna Consciousness,
Inc., 452 U.S. 640, 650 (1981); Martin v. Struthers, 319 U.S. 141, 144
(1943); G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064 (9th Cir.
2006); ACORN, 798 F.2d at 1268). For purposes of this appeal, however,
the City has only asserted its interest in traffic flow and safety.
COMITE DE JORNALEROS v. REDONDO BEACH 8403
the City’s interest in traffic flow and safety. This overinclu-
siveness is fatal to the constitutionality of the Ordinance.
As the district court explained, the Ordinance prohibits a
wide variety of expression that bears little to no relationship
to the City’s proffered interests. See, e.g., Comite, 475 F.
Supp. 2d at 965 n.8 (“In fact, the Ordinance would technically
apply to children selling lemonade on the sidewalk in front of
their home, as well as to Girl Scouts selling cookies on the
sidewalk outside of their school.”). It expansively bans all
solicitations (or attempts at solicitations) for employment,
business, or contributions from an occupant of any motor
vehicle. The Ordinance prohibits, among other things, solici-
tation of employment or a contribution from a motorist in a
lawfully stopped or parked car. It prohibits an individual from
standing on a sidewalk and distributing to a passenger in a
lawfully stopped car fliers noting his availability for employ-
ment and providing a cell phone number. Similarly, the Ordi-
nance would prohibit a restauranteur from standing on a
sidewalk waiving a sign at drivers inviting them to patronize
his establishment, or other signbearers on sidewalks seeking
patronage or offering handbills even though their conduct
does not pose a traffic hazard. See ACORN, 798 F.2d at 1269
n.8 (“The degree of distraction entailed by ACORN’s ‘tag-
ging’ practices is plainly far greater. It is much easier to
ignore a billboard or pedestrian along the roadway . . . .”).
Neither the City nor the majority explains the relationship
these prohibitions bear to traffic flow and safety.
The majority dismisses the overbreadth challenge, asserting
that “[h]ypothetical examples of how the government could
theoretically apply an ordinance . . . are not sufficient to
establish inadequate tailoring.” Maj. Op. at 8376 (citing
Wash. St. Grange, 128 S. Ct. at 1190 (2008)). The Supreme
Court stated in Washington State Grange that courts
approaching a facial challenge to a law “must be careful not
to go beyond the statute’s facial requirements and speculate
about ‘hypothetical’ or ‘imaginary’ cases.” Wash. St. Grange,
8404 COMITE DE JORNALEROS v. REDONDO BEACH
128 S. Ct. at 1190. Here, however, the district court properly
confined its analysis to the statute’s “facial requirements.” As
the district court reasoned, “by its very terms, the Ordinance
at issue here sweeps in a much larger amount of ‘solicitation’
speech and speech-related conduct than the ordinance at issue
in ACORN.” Comite, 475 F. Supp. 2d at 964.
Courts “ ‘may impose a limiting construction on a statute
only if it is readily susceptible to such a construction.’ ” Ste-
vens, 130 S. Ct. at 1591-92 (quoting Reno v. ACLU, 521 U.S.
844, 884 (1997)); see also S.O.C., Inc. v. County of Clark,
152 F.3d 1136, 1143-44 (9th Cir. 1998) (rejecting a limiting
construction where the “Ordinance’s plain language does not
limit the scope of the regulated activity” as suggested by the
county). The Ordinance is not “readily susceptible” to the
majority’s reading that it prohibits only “direct, in-person
demands requiring an immediate response from drivers in
traffic lanes.” Maj. Op. at 8383. In Foti v. City of Menlo Park,
146 F.3d 629 (9th Cir. 1998), we confronted a Menlo Park
ordinance that included a prohibition on the posting or dis-
playing of signs on vehicles with the intent to “display, dem-
onstrate, advertise, or attract the attention of the public.” Id.
at 634 n.3. Menlo Park proffered a construction that narrowed
the prohibition to only “temporary” signs. Id. at 639. We
rejected the attempt to narrowly construe the ordinance, not-
ing that “we are not required to insert missing terms into the
statute or adopt an interpretation precluded by the plain lan-
guage of the ordinance” and that the “plain language of [the
ban] applies to all signs on vehicles, not just temporary
signs.” Id.; see also Conchatta Inc. v. Miller, 458 F.3d 258,
265 (3d Cir. 2006) (finding the “plain terms” of a challenged
ordinance not “readily susceptible” to a limiting construc-
tion); Ripplinger v. Collins, 868 F.2d 1043, 1056 (9th Cir.
1989) (“[T]he language of the definition does not seem read-
ily susceptible to a narrowing construction. It would be neces-
sary to add language requiring that the defendant have
knowledge of the ‘overall character’ of the material . . . .”).
COMITE DE JORNALEROS v. REDONDO BEACH 8405
By its very terms, the Ordinance bans all solicitation for
contributions, employment, or business from an occupant of
any motor vehicle. This is not a case in which “solicitation”
may be construed only to include a physical exchange of
funds as in International Society for Krishna Consciousness
v. Lee, Inc., 505 U.S. 672 (1992). In that case, the Supreme
Court examined a regulation imposed by the New York Port
Authority over all of New York’s airports prohibiting, in part,
“[t]he solicitation and receipt of funds.” Id. at 676. The Court
upheld the regulation under the reasonableness standard appli-
cable to nonpublic fora. See id. at 683-84. Justice Kennedy in
his concurring opinion—joined by Justices Blackmun, Ste-
vens, and Souter—viewed the airports as public fora, but
nonetheless voted to uphold the regulation. See id. at 704-05
(Kennedy, J., concurring). Justice Kennedy found that the reg-
ulation, properly read, reached only in-person demands for an
immediate contribution of money because, under any broader
reading of the term solicitation, “the ‘receipt of funds’ phrase
would be written out of the provision.” Id. at 704. Here, there
is simply no way to be both faithful to the English language
and to read the Ordinance as prohibiting only solicitations
requiring an “immediate” response. The majority attempts in
vain to rewrite the Ordinance to render it constitutional when
its plain language embraces protected speech; we should not
redraft the City’s ordinances. Our obligation is to evaluate the
ordinance the City passed, not the ordinance it could have, or
should have, passed. See Virginia v. Am. Booksellers Ass’n,
484 U.S. 383, 397 (1988) (“[W]e will not rewrite a state law
to conform it to constitutional requirements.”). Where a stat-
ute is overbroad, all enforcement is invalidated “ ‘until and
unless a limiting construction or partial invalidation so nar-
rows it as to remove the seeming threat or deterrence to con-
stitutionally protected expression.’ ” United States v. Adams,
343 F.3d 1024, 1034 (9th Cir. 2003) (quoting Virginia v.
Hicks, 539 U.S. 113, 119 (2003)).
“Not to worry” the City (and the majority) say: The City
construes the ordinance as reaching only people “soliciting
8406 COMITE DE JORNALEROS v. REDONDO BEACH
vehicles so as to cause a driver to stop in traffic” or in “any
other manner that caused traffic blockages.” “But the First
Amendment protects against the Government; it does not
leave us at the mercy of noblesse oblige. We would not
uphold an unconstitutional statute merely because the Gov-
ernment promised to use it responsibly.” Stevens, 130 S. Ct.
at 1591; see also Conchatta, 458 F.3d at 265 (“Past practice
does not constitute a narrowing construction because it does
not bind the enforcement agency, which could, at some point
in the future, decide to target a broader range of establish-
ments. This possibility of expanded enforcement creates a
chilling effect.”); Odle v. Decatur County, 421 F.3d 386, 397
(6th Cir. 2005) (“[N]either proof that an ordinance as cur-
rently applied has no unconstitutional effect, nor assurances
offered by the relevant local authorities that the ordinance will
not be put to such an effect in the future, constitute ‘construc-
tions’ of the ordinance, as the term is ordinarily understood.”).
Thus, it is not true, as the majority asserts, that the City has
“authoritatively construed” the Ordinance to apply to actual
disruptions to traffic, and even if it were true that the City
only narrowly enforces the Ordinance to meet its traffic and
safety concerns, this would not save the Ordinance.
Similarly, in our en banc opinion in Berger, we relied on
the plain language of the statute to find overbreadth without
regard to how the city enforced its ordinance. There, a per-
former challenged several city regulations of Seattle Center,
including a content-neutral permitting regime requiring “street
performers” to obtain permits to perform in the park. The def-
inition of “street performer” included “a member of the gen-
eral public who engages in any performing art or the playing
of any musical instrument, singing or vocalizing, with or
without musical accompaniment.” Berger, 569 F.3d at 1046.
We recognized the breadth of the ordinance encompassed
any individual who wishes to sing, dance, or play an
instrument while on the Center’s grounds. Protest
songs, playing the guitar at a picnic, even whistling
COMITE DE JORNALEROS v. REDONDO BEACH 8407
are swept up into this broad definition. An individual
strumming on a guitar at a family picnic surely poses
no problem to the safety and convenience of fellow
park-goers.
Id. We found that “the permitting requirement applies to street
performers who pose no realistic coordination or traffic flow
concerns.” Id. Even though there was no evidence that Seattle
applied the ordinance against a whistling tourist or guitar-
playing picknicker, we did not turn a blind eye to the reach
of the ordinance’s plain language.
Finally, the City has numerous alternatives available to fur-
ther its asserted interests that do not burden protected speech.
“We have said that ‘if there are numerous and obvious less-
burdensome alternatives to the restriction on [protected]
speech, that is certainly a relevant consideration in determin-
ing whether the ‘fit’ between means and ends is reasonable.’ ”
Menotti, 409 F.3d at 1131 n.31 (quoting City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 417 n.13 (1993)). In
Berger, we recognized that the Seattle regulation’s “broad
sweep prohibits much more speech than the ‘evil[s]’ it seeks
to remedy require, and the main objectives of the City’s
advance registration scheme could be achieved by far less
intrusive means.” Berger, 569 F.3d at 1048.
No “legal” imagination need be exercised here; the City
can simply enforce its existing traffic and safety ordinances to
eliminate its articulated concerns. See Cal. Veh. Code § 22500
(prohibiting vehicle stopping, standing, or parking in a num-
ber of areas); id. § 22651(b) (permitting removal of a vehicle
that is obstructing the normal movement of traffic or creating
a hazard to other traffic); id. § 21961 (allowing local authori-
ties to adopt ordinances preventing pedestrians from crossing
roadways in places other than crosswalks); Redondo Beach
Municipal Code § 3-7.1004 (“No person shall stand in any
roadway, other than in a safety zone or in a crosswalk, if such
action interferes with the lawful movement of traffic.”); id.
8408 COMITE DE JORNALEROS v. REDONDO BEACH
§ 3-7.1204 (allowing the City to establish no parking zones
prohibiting persons from stopping, standing, or parking in
those areas); id. § 3-7.1307 (allowing the City to prohibit
parking in a number of circumstances including where it
would “create a hazard to life or property or a serious obstruc-
tion to vehicular or pedestrian passage”). As this sketch of the
regulatory landscape reveals, the City has ample means to
advance its interest in traffic flow and safety without
encroaching upon a large swath of protected expressive activ-
ity. The City has not even attempted to explain how a focused
effort at enforcing the state and local traffic, littering, and
harassment statutes would not advance its interests even more
effectively than does the challenged Ordinance.
Given that the Ordinance encompasses a substantial
amount of protected expressive activity unrelated to the City’s
articulated interests, the Ordinance is not narrowly tailored.
This conclusion is reinforced by the “numerous and obvious
less-burdensome alternatives” the City has at its disposal that
would advance its interests equally well. Menotti, 409 F.3d at
1171. The City, therefore, has failed to meet its burden of
demonstrating that the Ordinance “ ‘promotes a substantial
government interest that would be achieved less effectively
absent the regulation.’ ” Ward, 491 U.S. at 799 (quoting
United States v. Albertini, 472 U.S. 675, 689 (1985)).
C. The Ordinance Leaves Open No Effective Alternative
Avenue of Communication.
The Ordinance effectively eliminates the only means by
which day laborers can communicate their availability for
employment. The City bears the burden of demonstrating that
the day laborers have ample alternatives to engage in their
solicitation of employment. Lim v. City of Long Beach, 217
F.3d 1050, 1054 (9th Cir. 2000). It cannot rely on extenuated
“alternatives” which may remotely or hypothetically provide
an avenue for expression. Where “ ‘there is no other effective
and economical way for an individual to communicate his or
COMITE DE JORNALEROS v. REDONDO BEACH 8409
her message,’ alternative methods of communication are
insufficient.” United Bhd. of Carpenters and Joiners of Am.
v. NRLB, 540 F.3d 957, 969 (9th Cir. 2008) (quoting Edwards
v. City of Coeur d’Alene, 262 F.3d 856, 866 (9th Cir. 2001)).
While we will not “invalidate a regulation merely because it
restricts the speaker’s preferred method of communication,”
the alternative must allow the individual to effectively convey
her message to her intended audience. Id.; Edwards, 262 F.3d
at 866.
The City advances a number of potential alternatives, none
of which passes constitutional muster. First, it implicitly
argues that door-to-door canvassing, telephone solicitation, or
direct mailing would allow day laborers to solicit employment
effectively.7 As NDLON’s Legal Programs Coordinator Chris
Newman described, however, the informal, transitory nature
of day laborer employment renders these more conventional
means of solicitation and advertising ineffective. Morever,
each of the City’s suggestions would impose an economic
burden upon day laborers which does not exist in the public
forum. The cost and convenience of a suggested alternative is
directly relevant to whether the alternative is constitutionally
adequate. See City of Ladue v. Gilleo, 512 U.S. 43, 57 (1994);
Long Beach Area Peace Network, 574 F.3d at 1025; Bay Area
Peace Navy v. United States, 914 F.2d 1224, 1229 n.3 (9th
Cir. 1990) (“In addition to accessibility to an audience or
forum generally, an alternative has been held not ‘ample’ or
7
The majority makes much of the fact that the ACORN court found
these to be available alternatives when reviewing the Phoenix ordinance.
This argument, however, displays the majority’s fundamental misunder-
standing of the nature of the solicitation at issue. As demonstrated above,
the ACORN court examined only the statute as applied to ACORN’s
method of soliciting contributions of funds. While ACORN could not
“tag” occupants of cars by entering the roadway, they could effectively
raise money for their objectives through a multitude of alternative chan-
nels. Here, by contrast, the transitory, informal nature of day laborer
employment and the reality of how day laborers are sought out and hired
renders these same alternatives illusory.
8410 COMITE DE JORNALEROS v. REDONDO BEACH
adequate because, among other things, it is ‘more expensive’
than the prohibited means of communication.” (citing City of
Watseka v. Ill. Pub. Action Council, 796 F.2d 1547, 1558 (7th
Cir. 1986)).
The City and majority also assert that soliciting pedestrians
on the side of the road is an acceptable alternative. Maj. Op.
at 8384-85. However, this “alternative” is also illusory. The
Ordinance poses a serious risk that solicitation directed at
pedestrians on the sidewalk will be chilled because a solicitor
targeting pedestrians cannot control the potential response of
passing motorists. A day laborer could intend to solicit only
passing pedestrians, but if a driver stopped and attempted to
engage him, it could appear to an observing police officer that
he was attempting to solicit passing traffic. This lack of con-
trol over a driver’s response, which is tantamount to a lack of
control over a violation of the Ordinance, makes this “alterna-
tive” unavailable. More fundamentally, as the district court
found, “most individuals who set out seeking to hire day
laborers do so in their cars.” Comite, 475 F. Supp. 2d at 968.
Thus, that day laborers may technically remain free to solicit
employment from pedestrians does not answer the relevant
question: whether the day laborers would be able to solicit
their target audience. See United States v. Baugh, 187 F.3d
1037, 1044 (9th Cir. 1999); see also Heffron v. Int’l Soc’y for
Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981) (“The
First Amendment protects the right of every citizen to ‘reach
the minds of willing listeners and to do so there must be an
opportunity to win their attention.”).
Even if it were accepted that day laborers could reach cer-
tain members of their target audience by soliciting pedestri-
ans, the alternative would still not be a sufficient means of
protecting Plaintiffs’ First Amendment interests. In Edwards,
we held that an alternative which allowed the speaker to
solicit only a segment of his target audience was inadequate.
There, a Los Angeles ordinance prohibited the carrying of
signs that were attached to wooden or plastic handles during
COMITE DE JORNALEROS v. REDONDO BEACH 8411
parades or public assemblies. Edwards, 262 F.3d at 858-59.
The City of Los Angeles asserted that handing out leaflets,
holding up signs, singing, shouting, or chanting constituted
alternative means to convey messages. Id. at 867. We rejected
those alternatives, finding that the noise and large size of the
crowds rendered the proposed alternatives ineffective for the
protestors “to convey their messages to the broad audience
they seek to attract.” Id. We reached this result despite the
fact that some individuals in the crowd would have been able
to see hand-held signs, obtain handbills, or hear the shouting.
Compared to the use of supported signs, the proposed alterna-
tives impermissibly narrowed the audience the speaker could
reach. Similarly here; the suggested alternative means of
soliciting pedestrians is an ineffective method for day laborers
to reach their target audience. Therefore, it is legally insuffi-
cient.
The majority next argues that the ability of a day laborer to
engage a driver who has lawfully parked constitutes a valid
alternative. As already demonstrated, however, the plain text
of the Ordinance bans this behavior. It broadly prohibits all
solicitation of employment, business, or contributions from
any occupant of a vehicle and it does not distinguish between
legally parked, illegally parked, or stopped vehicles. An alter-
native is not constitutionally adequate if it is facially prohib-
ited by the challenged ordinance.
Finally, the City claims that strip mall parking lots adjacent
to the main areas in which day laborers congregate can oper-
ate as alternative avenues of communication. This suggestion
is at odds with the City’s assertion that it enacted the Ordi-
nance in part due to the complaints of those very local busi-
ness owners. Comite, 475 F. Supp. 2d at 967 n.9. The City has
not shown that the proprietors of these establishments are
willing to allow day laborers to congregate in their parking
lots, so it cannot be said that this alternative is actually avail-
able.
8412 COMITE DE JORNALEROS v. REDONDO BEACH
The City relies on Robins v. Pruneyard Shopping Center,
23 Cal. 3d 899 (1979), aff’d 447 U.S. 74 (1980), and its prog-
eny to argue that day laborers are free to exercise their First
Amendment rights on private property, even over the objec-
tion of property owners. In Pruneyard, the California
Supreme Court held that the California Constitution’s guaran-
tee of freedom of expression, Cal. Const. art. I, §§ 2-3, “pro-
tect[s] speech and petitioning, reasonably exercised, in
shopping centers even when the centers are privately owned.”
Pruneyard, 23 Cal. 3d at 910. Under Pruneyard, property
owners may be compelled to allow expressive activity only
where the premises have become the “ ‘functional equivalent
of a traditional public forum.’ ” Albertson’s, Inc. v. Young,
107 Cal. App. 4th 106, 118 (2003) (citing Golden Gateway
Ctr. v. Golden Gateway Tenants Ass’n., 26 Cal. 4th 1013,
1033 (2001)). California courts have explicitly rejected a
broad reading of Pruneyard that would compel any store or
facility that is “freely and openly accessible to the public” to
allow expressive activity. See, e.g., Albertson’s, 107 Cal. App.
4th at 118 (holding the “freely and openly accessible” inquiry
to be a “threshold” requirement).
The private parking lots the City suggests as alternative
avenues of communication are attached to small, individual
“proprietor-type operations, such as a doughnut shop, gas sta-
tions, restaurants and a ‘7-Eleven.’ ” Comite, 475 F. Supp. 2d
at 967. It strains reality to argue that a doughnut shop or gas
station has become the “functional equivalent” of a public
forum like the massive outdoor shopping center in Pruneyard.
Rather, as the district court found, “California courts have
eschewed the application [of] Pruneyard to smaller spaces,
such as the parking lots of large grocery stores.” Id. For
example in Albertson’s, the California Court of Appeal con-
cluded that individuals did not have the right to solicit in front
of an Albertson’s store, notwithstanding that it was part of a
large complex built around a common parking lot. 107 Cal.
App. 4th at 121. The Court of Appeal reasoned, in part, that
there were no “enclosed walkways, plazas, courtyards, picnic
COMITE DE JORNALEROS v. REDONDO BEACH 8413
areas, gardens, or other areas that might invite the public to
congregate.” Id. Similarly, in Trader Joe’s, the same court
concluded that a Trader Joe’s store and parking lot did not
become the functional equivalent of a public forum simply
because it was open to the public. The Court of Appeal there
stated that “[f]ew would argue that a free-standing store, with
abutting parking space for customers, assumes significant
public attributes merely because the public is invited to shop
there.” Trader Joe’s Co. v. Progressive Campaigns, Inc., 73
Cal. App. 4th 425, 434 (1999). Like Albertson’s or Trader
Joe’s, the small individual proprietorships involved in this
case lack any indicia of a public forum, thus rendering Prune-
yard inapplicable.
The City asserts that property owners’ objections are
merely speculative. The City belies its own record; it is undis-
puted that property owners’ objections to day laborers were a
driving force behind the adoption of the Ordinance. It defies
common sense to conclude that property owners who objected
to the day laborers congregating on public sidewalks near
them, prompting the City to enact the Ordinance in the first
place, would acquiesce to a proposal that would move the day
laborers directly onto their private property. The City next
argues that, were the property owners to object, the day labor-
ers would be entitled to assert their right to assemble under
Pruneyard. However, the burden is on the City—not the
Plaintiffs—to prove the existence of alternative avenues of
communication. As detailed above, the City has failed to
demonstrate even a colorable argument that Pruneyard
applies to the individual proprietorships it promotes as an
alternative to city sidewalks. The City cannot meet its heavy
burden for justifying restrictions on First Amendment rights
by simply pointing to a legal doctrine and inviting the Plain-
tiffs to engage in what would likely be a protracted, losing
legal battle.
Each of the potential alternatives asserted by the City is
either inapplicable or constitutionally defective. Thus,
8414 COMITE DE JORNALEROS v. REDONDO BEACH
because the City failed to meet its burden of demonstrating
the presence of alternative avenues of communication, the
Ordinance is not a valid time, place, and manner regulation.
III.
The majority tramples upon the right of free speech in the
most traditional of public fora. It erroneously relies upon pre-
cedent involving an as-applied challenge to the constitutional-
ity of an aspirationally similar statute and contorts the actual
words of the Redondo Beach Ordinance beyond recognition.
The district court got it right: The Redondo Beach Ordinance
is an unconstitutional regulation of speech; it is not narrowly
tailored to meet Redondo Beach’s asserted governmental
interests; and it fails to leave open alternative avenues for the
day laborers’ expression. I would affirm the district court’s
grant of summary judgment to Jornaleros and NDLON as
well as the award of attorneys’ fees and costs to them.