Monday, September 26, 2011

Where Did Judge Kozinski's Libertarian Streak Go in the Redondo Beach Case?

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.

10 comments:

Sam Rickless said...

I'm not sure I understand the hypothesis. Is it that the driver of a car is a captive audience? But this happens at best only at (long) red lights. So even by this standard, the language of the statute is overbroad. Just as one can easily walk away from someone begging on a sidewalk, so one can drive away from someone soliciting work at a street corner.

Kozinski just seems to have a misplaced concern about circumstances that are likely to lead to law-breaking. If the principle is that we should stop behavior that, though not violative of public order in itself, conduces to public disorder, then we should also stop people from marching peacefully, because this also often conduces to public disorder. And then where would we be? Judge Kozinski seems not to have thought about what the principle behind his dissent would lead to, logically speaking.

Besides, public urination, vandalism, harassment, etc. are misdemeanors or crimes, for which we already have statutes. Moreover, it is easier for police to monitor groups of men seeking work at street corners or parking lots, precisely because they are in one spot, rather than scattered.

Am I missing something?

Michael C. Dorf said...

Hi Sam,

You're not missing anything. That's the point. I'm NOT offering this hypothesis as a justification for Judge Kozinski's dissent, which, as you note, is unjustifiable without scrapping the First Amendment. Rather, I'm suggesting that Judge Kozinski's subconscious thought process treated speech directed at cars differently from speech directed at passersby, and then he went and wrote an opinion based on other factors.

Brennan said...

" 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."

Your post makes a plausible point, but the section I just quoted - in which you suggest that Kozinski is either an anti-immigrant demagogue or a fellow traveler - appears to be extraneous to that point. More, I think that this criticism of Kozinski is not very thoughtful as Kozinski didn't just dream up these facts, they were apparently heavily supported by the record, specifically relied upon by the city, and discussed in the District Court's opinion. Kozinski may be wrong about the ultimate legal significance of these facts, but it hardly seems necessary to peg him as engaging in anti-immigrant demagoguery when he was describing real problems. (Again, I am not suggesting that those problems should outweigh First Amendment rights, just that Kozinski is not egregiously wrong to put them on the balance scale.)

Also, less seriously, what's the function of that ominous "or worse" at the end of that sentence? A velvet mitten? A scratchy canvas glove? Those annoying half-fingered thingies?

Sam Rickless said...

Hi Mike,

This really is just speculation about what went on in Judge K's mind when he wrote his opinion, but I guess I'm suggesting a different hypothesis. It's not that, to Judge K, cars are different. (After all, one is rarely a captive audience in one's car.) It's that Judge K is relying on a principle to the effect that behavior that is correlated with, or likely to conduce to, law-breaking is not protected by the First Amendment. This is to take his remarks about public urination, vandalism, etc. more seriously than I think you take them. My hypothesis is that Judge K is unaware of (or is simply turning a blind eye to) the fact that the relevant principle eviscerates the First Amendment and has consequences of which Judge K himself would not approve (because of his libertarian streak). This certainly wouldn't be the first time that a judge failed to pay attention to the unacceptable consequences of his or her own principles.

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Kozinski just seems to have a shed worry about conditions that are likely to cause to law-breaking. If the key is that we should quit behaviour that, though not violative of community purchase in itself, conduces to community illness, then we should also quit individuals from walking quietly, because this also often conduces to community illness. And then where would we be? Assess Kozinski seems not to have imagined about what the key behind his dissent would cause to, practically talking. WOW Gold

Darcy Thecensor said...

His streak left the city after he sold out to the powers, to allow more government power, giggle, giggle. http://tinyurl.com/6lrbq8p

Op Dr Ali Mezdeği said...

Kozinski just seems to have a misplaced concern about circumstances that are likely to lead to law-breaking. If the principle is that we should stop behavior that, though not violative of public order in itself, conduces to public disorder, then we should also stop people from marching peacefully, because this also often conduces to public disorder. And then where would we be? Judge Kozinski seems not to have thought about what the principle behind his dissent would lead to, logically speaking.

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