By Mike Dorf
A little over a week ago, an en banc 9th Circuit court invalidated a Redondo Beach, CA ordinance banning “stand[ing] on a street or highway and solicit[ing], or attempt[ing] to solicit, employment, business, or contributions from an occupant of any motor vehicle." The law was ostensibly meant to address congestion arising out of congregating day laborers seeking work, but as in other communities in which this issue has arisen, such legitimate concerns become mixed with anti-immigrant sentiment.
The en banc majority found that the law was facially invalid as overbroad. Streets are, in the Supreme Court's category, a "traditional public forum," and while reasonable time, place, and manner regulations of speech are permissible in such a forum, the Redondo Beach ordinance, in banning an entire category of speech, was not such a regulation. Chief Judge Kozinski disagreed strongly. He wrote: "If I could dissent twice, I would." Some of his rhetoric could be used by anti-immigrant demagogues. He stated: "As might be expected when large groups of men gather at a single location, they litter, vandalize, urinate, block the sidewalk, harass females and damage property." That's not exactly stereotyped language itself, but one might think of it as the velvet glove that encases the iron fist of such language or worse.
Chief Judge Kozinski is a libertarian on both speech and business, leading one to think that he ought to be extremely solicitous of commercial speech of the sort at issue here. He is also an immigrant himself, and knowing him personally, I have every reason to think he would not want to encourage anti-immigrant sentiment. So, what is going on here?
I'm going to venture an unproveable hypothesis: The best explanation for the case is that for Judge Kozinski, as for many other southern Californians, cars are different.
Consider an analogous pair of cases. In Young v. NYC Transit Authority, in 1990, the U.S. Court of Appeals for the Second Circuit upheld a ban on begging in the subways. Three years later, in Loper v. New York City Police Dep't, the same court invalidated a blanket ban on begging. Although there is some tension between the two opinions, the results of the two cases are easy to reconcile: People on subway platforms and subway cars are a captive audience, such that begging in these spaces is inherently coercive; begging above ground is different because it's much easier just to walk away.
My hypothesis is this: Chief Judge Kozinski, as a longtime resident of Southern California, regards a car as a private space in which people need protection from intrusion, in much the way that a New Yorker needs protection on the subway.
Now, I'll freely admit that there are two big problems with this hypothesis. The first is that other Californians in the Redondo Beach case came out the other way. But so what? To say that a factor influences one judge is not to say the same factor will influence all similarly situated judges in the same way.
The second problem is that CJ Kozinski's dissent did not actually focus on the intrusion on the repose of drivers, but concentrated instead on the harms to shopowners and pedestrians from day laborers congregating on the sidewalks. Still, judges often write opinions that express reasons aimed at justifying the results they believe correct, even when other factors played a more important causal role in their reaching those results.
Bottom Line: The "cars are different" hypothesis could explain what is otherwise a puzzling dissent.