| A
Legal Challenge, More Questions |
| When the Town of Herndon developed its plan in 2005 for
dealing with the day laborers who had set up an informal labor
pick-up site outside the 7-Eleven on Elden Street, much research
was done. |
| Town employees, attorneys and legal experts, as well as
Mayor Mike O'Reilly and former mayors, joined by Council members,
spent a large amount of time in the years leading up to the
vote that enabled the formal day labor site to open a little
more than a year ago. |
| Officials met with the federal government to find out what
options the town had for increasing enforcement of immigration
laws. They researched how other towns had tried to find solutions
to the same problems Herndon was facing with its day labor
population. |
| And they researched the law to find out what new laws the
town could enact that would help combat the problem of day
laborers gathering anywhere around town without any control. |
| In the end, the Town Council voted to open a formal day
labor site and enact a law banning the hiring of day laborers
anywhere in town other than the labor site, based on research
indicating that enacting a law that restricts solicitations
without providing a location for such interactions to take
place would be ruled unconstitutional. |
| This week, the first constitutional challenge to that town's
anti-solicitation ordinance was made. A man named Stephen
A. Thomas said in a filing to dismiss charges against him
that he parked his vehicle at the 7-Eleven, walked out and
discussed employment with a couple of men, then returned to
his vehicle and began to drive to his house. |
| The Herndon Police, who are on alert for such activity,
stopped the man's car and gave him a citation for violating
the ordinance. This week, the man filed a motion to dismiss
the charge against him on the grounds that the law infringes
on his right to free speech. |
| At this stage, it's difficult to tell what affect if any
this challenge may have on the town's ordinance. But we all
knew this would happen sooner or later. It was simply a matter
of time before someone was upset enough at the law to challenge
it. |
| Whenever a government begins to enact laws that infringe
on the public's right to act freely, on public property or
private, there is bound to be a legal challenge. While the
ordinance was enacted with the best of hopes that it would
help the town resolve its longstanding problem of day laborers
congregating, that doesn't mean the law is just. |
| The challenge being made in the Thomas case is two-fold.
First, Mr. Thomas argues that the town's ordinance is too
broad, and that it therefore restricts a substantial amount
of free speech. Mr. Thomas argues that the U.S. Supreme Court
has said that any law that attempts to control the content
of free speech, in this case the solicitation of employment,
is "
presumptively invalid and subject to strict scrutiny."
|
| Further, he argues that such a law would be constitutional
only if it served a compelling state interest and was narrowly
tailored so as not to infringe on other free speech activity.
Mr. Thomas argues that the town ordinance does not meet either
of these criteria. |
| As part of his argument, Mr. Thomas points out that he was
not driving when he attempted to hire a laborer. He had parked
his car and walked around to find someone who could help him.
If the purpose of the law was to ensure traffic safety, it
shouldn't apply in this case. |
| Even if the court finds that the ordinance does meet a compelling
state interest, Mr. Thomas alleges that it is not tailored
narrowly enough. Because of the way the ordinance is worded,
he argues, many activities that might take place between people
in their cars and pedestrians, or even people who are not
in their cars and other pedestrians, are curtailed. "
Given
the broad definition of pedestrian,"
the motion to dismiss
reads, "
the ordinance encompasses every person on any highway,
road, street, driveway, parking lot or alley, not at his permanent
residence, who rode a bike or drove a car or other vehicle,
for any purpose whatsoever, to his temporary destination."
|
| Among the activities Mr. Thomas argues are illegal according
to the current town ordinance would be curbside ordering or
delivery from a restaurant, asking a neighbor child to rake
your leaves, fund-raising car washes in a parking lot or driveway,
holding a sign advertising a service, driving a car that advertises
a service, and even a driver using a cell phone to call someone
on the sidewalk to discuss employment. |
| "
In the process of ensuring that it effectively squelched
every conceivable method of communication of the specific
speech it seeks to eliminate, the town council criminalized
substantially more speech than is necessary, and, undoubtedly
in some case, substantially more speech than it had intended,"
the motion reads. |
| This is a matter for the courts to decide, but it's clear
that the town must pass this hurdle if it has any hope of
trying to curtail the activities of day laborers trying to
find work in the town. If the court finds the ordinance unconstitutional,
it will undo any of the town's efforts to force day laborers
to search for work only at a designated area, and may make
it virtually impossible to solve the problems it faces in
this way. |
| What the courts are charged with protecting is our right
to do as we choose on our own property and on public property.
When we are walking down the sidewalk we should be able to
stop and chat about anything we choose without risking a ticket
from the police. |
| At the same time, the town needs to find a balance between
an orderly community and one in which a group of more than
a hundred men wander the town's streets every day asking for
work. |
| Stay tuned. The lawsuit filed by the national watchdog group
Judicial Watch against using taxpayer funds for a labor site
that benefits illegal aliens is still active at the county
court, and Mr. Thomas's constitutional challenge now brings
the town's ordinance into question. |
