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
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. 

8354 COMITE DE JORNALEROS v. REDONDO BEACH
COUNSEL

Philip Hwang and Robert Rubin, Lawyers’ Committee for

Civil Rights, San Francisco, California, and Cynthia A.

Valenzuela, Mexican American Legal Defense and Educational 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.

COMITE DE JORNALEROS v. REDONDO BEACH 8357
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 identical 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 Organizations for Reform Now (ACORN), a non-profit political action

organization, raised a First and Fourteenth Amendment challenge 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 challenged 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 alternative channels of communication. Id. at 1267-71. Accordingly,

8358 COMITE DE JORNALEROS v. REDONDO BEACH
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 traffic.” Id. at 1272. Because the ordinance was narrow, and prohibited “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 ordinance “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 difficulties 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 purposes and shall include, but not be limited to, roadCOMITE DE JORNALEROS v. REDONDO BEACH 8359
ways, parkways, medians, alleys, sidewalks, curbs,

and public ways.1

The first sentence of the Redondo Beach ordinance is identical 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 “highway.” 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 attorney 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 intersections. 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 violating 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. 

8360 COMITE DE JORNALEROS v. REDONDO BEACH
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 nationwide 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 ordinance. We affirmed the preliminary injunction in an unpublished 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 existence 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 restitution provided.” Id. at 970. Redondo Beach timely

appealed. The district court subsequently granted Redondo

Beach’s motion to stay the order granting partial relief pending 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.

COMITE DE JORNALEROS v. REDONDO BEACH 8361
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 nonmoving 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 protected 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 omitted). 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 Article 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 independent 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

8362 COMITE DE JORNALEROS v. REDONDO BEACH
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 ordinance 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 ordinance would have otherwise been expended toward

NDLON’s core organizing activities. In sum, NDLON has

established a sufficient organizational injury for standing purposes. 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 conclude that NDLON has standing to bring this appeal. Accordingly, 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. Wasden, 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 referCOMITE DE JORNALEROS v. REDONDO BEACH 8363
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 regulated speech, that they are narrowly tailored to serve

a significant governmental interest, and that they

leave open ample alternative channels for communication 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

2Although 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. Bellotti, 435 U.S. 765, 779 (1978). Accordingly, the First Amendment’s limitation 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). 

3Amici 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 commercial 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.,

8364 COMITE DE JORNALEROS v. REDONDO BEACH
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 solicitation 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 Consciousness, 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. 

4Because 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 ordinance was a valid restriction on expressive conduct, so we apply only the

test articulated in Ward to determine whether the ordinance is constitutional. 491 U.S. at 791. 

COMITE DE JORNALEROS v. REDONDO BEACH 8365
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 public 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 properly considered traditional public fora.”). Accordingly, we

must consider whether the Redondo Beach ordinance is content neutral, narrowly tailored to serve a significant governmental 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 constitutionality. See City of Lakewood v. Plain Dealer Publ’g

Co., 486 U.S. 750, 770 n.11 (1988) (“[T]his court will presume 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 unrelated to suppressing any particular message are content neutral. See ACLU II, 466 F.3d at 794 & n.10 (noting that “courts

have held that bans on the act of solicitation are contentneutral,” while courts have determined that bans separating

out “words of solicitation for differential treatment” are content 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 solicitation do not violate the prohibition on content-based regulation

of speech”). Indeed, this principle is well grounded in

8366 COMITE DE JORNALEROS v. REDONDO BEACH
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 messages 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 “restrictions 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 treatment.” 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

5The 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). 

COMITE DE JORNALEROS v. REDONDO BEACH 8367
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 “requesting 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 analyzed 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 ordinance “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 performance,’ ” but did not prohibit street performers from

actively communicating other messages. Id. We stated that

while “this distinction [may be] innocuous or eminently reasonable, it is still a content-based distinction because it ‘singles 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 message, idea, or form of speech,” Lee, 505 U.S. at 706 (Ken6Seattle 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.

8368 COMITE DE JORNALEROS v. REDONDO BEACH
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 Phoenix and Redondo Beach ordinances, and therefore we are

bound by our determination in ACORN that the Phoenix ordinance 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 particular message or content of speech, id. at 1267. Indeed, the language of the two ordinances is identical in all material

respects. Although Redondo Beach’s ordinance mentions

“sidewalks,” and the Phoenix ordinance does not, this difference 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 judicial or administrative construction, or well-established practice” 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 exclusively on conduct without reference to content. The record

establishes that officers charged only individuals who “solicit[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

COMITE DE JORNALEROS v. REDONDO BEACH 8369
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 persons soliciting contributions challenged the Phoenix ordinance, 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 Amendment analysis. So long as the ordinance targets conduct unrelated 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 ordinance 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 Movement, 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 implementation 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 con8370 COMITE DE JORNALEROS v. REDONDO BEACH
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 regulation of speech, and so does not run afoul of the content neutrality requirement.” Id.; see ACLU II, 466 F.3d at 795.

NDLON’s second argument, that the Redondo Beach ordinance is not content neutral because it singles out three categories 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 categories 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 ordinance 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 message’s content. 

COMITE DE JORNALEROS v. REDONDO BEACH 8371
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 content” 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. Similarly, Berger noted that the “officer must read it” test is only

“evidence that the regulation is content-based . . . not dispositive” 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 message” 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. Therefore, 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.

8372 COMITE DE JORNALEROS v. REDONDO BEACH
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 regulation.” 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 adequately 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 wellestablished principle. See, e.g., Schenck v. Pro-Choice Network 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 interest 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 ordi7The dissent loses sight of this rule when it states that Redondo Beach’s

asserted interests are equally furthered by existing traffic ordinances. Dissent 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. 

COMITE DE JORNALEROS v. REDONDO BEACH 8373
nance is narrowly tailored to serve this significant interest. A

regulation may be narrowly tailored for First Amendment purposes even if it restricts more speech or conduct than is absolutely 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 omitted)); 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 concerns.” 798 F.2d at 1270. We agreed with Phoenix’s determination 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 present 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 disruptive nature of fund solicitation from the occupants of vehicles,” id. at 1268, and not at “[d]irect communication of ideas,

including the distribution of literature to occupants in vehicles,” id., we concluded that the Phoenix ordinance was narrowly 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

8374 COMITE DE JORNALEROS v. REDONDO BEACH
and to address safety concerns. 475 F. Supp. 2d at 963. Our

conclusion in ACORN that solicitation demanding an immediate response from drivers increases the risks of traffic disruption and injury is equally applicable to Redondo Beach.

Nothing in the record suggests that solicitation for employment 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 ordinance 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 ordinance at issue in ACORN.” 475 F. Supp. 2d at 964. The district 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 individual “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 prohibition of solicitation while persons were “on” the street,

rather than “in” the street, applied “more generally to solicitation 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’

COMITE DE JORNALEROS v. REDONDO BEACH 8375
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 substantially 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) (holding 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 disrupted traffic.” 798 F.2d at 1270. The argument failed because

hypothetical examples of how the government could theoretically 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 children 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)). 

8376 COMITE DE JORNALEROS v. REDONDO BEACH
Further, we reject NDLON’s argument that ACLU II compels 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 combat.” 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 vehicles, 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 narrowly 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 Phoenix ordinance met this criteria because it allowed the distribution 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 “business, employment, or contributions” from people on sidewalks or in similar public forums within Redondo Beach, so

COMITE DE JORNALEROS v. REDONDO BEACH 8377
long as the act does not take place when the target of the

solicitation is actually driving in the street.8See id. Prospective 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 ordinance 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 (noting that “we consider the cost and convenience of alternatives” as one factor in the ample alternatives analysis). 

The district court held that the alternative avenues of communication 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 alternative 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 alternative 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 effective method of fundraising”). For instance, we held that a

restriction which had the effect of banning protests in “a portion of [Seattle]’s downtown area where protestors could not

deliver their message directly to [the World Trade Organization] delegates” left open ample alternative channels of com8Because the Redondo Beach ordinance leaves open ample alternative

channels irrespective of the availability of local shopping centers for solicitation, we do not address the parties’ arguments regarding shopping centers’ status as public fora under federal and California law. 

8378 COMITE DE JORNALEROS v. REDONDO BEACH
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 confirmed 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 carried during parades and public assemblies. Id. at 860. Because

the intended audience was “spectators, passersby, and television 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 communicate 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 audience of potential employers by other means. See supra at

8377-78. Accordingly, Redondo Beach has met its burden of

COMITE DE JORNALEROS v. REDONDO BEACH 8379
demonstrating that the ordinance leaves open ample alternative 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 vagueness if its prohibitions are not clearly defined.” Grayned v.

City of Rockford, 408 U.S. 104, 108 (1972). A vague enactment 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 resolution 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 definition, 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,

8380 COMITE DE JORNALEROS v. REDONDO BEACH
“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 undefined 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 hypothetical 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 ordinance as a whole prohibits.” More importantly, speculation 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 undefined, yet commonly understood terms. See, e.g., Gospel Missions of Am. v. City of L.A., 419 F.3d 1042, 1047-48 (9th Cir.

2005) (rejecting a vagueness challenge to the terms “charitable” 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 common understanding,” and citing cases).

In addition, “otherwise imprecise terms may avoid vagueness problems when used in combination with terms that proCOMITE DE JORNALEROS v. REDONDO BEACH 8381
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 perform at least two feet from their patrons. 395 F.3d at 1118.

We rejected appellants’ vagueness challenge to the ordinance’s definition of “adult cabaret dancer,” because even

though the statute’s definition of “adult cabaret dancer” contained subjective terms, the prohibited activity was defined

objectively. See id. at 1120. The clarity of the language defining 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 proscribed 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 solicitation 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 “solicitation” as banning the distribution of literature requesting

donations or employment. We are doubtful that this is a realistic 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 leaflets. See ACORN, 798 F.2d at 1268. Further, the subsection of

the ordinance prohibiting drivers from hiring people on the

8382 COMITE DE JORNALEROS v. REDONDO BEACH
street indicates that the ordinance targets transactions requiring 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 vagueness 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 ordinance is impermissibly vague because it invites arbitrary or

discriminatory enforcement. The undefined terms in the ordinance 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 determination, 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).

COMITE DE JORNALEROS v. REDONDO BEACH 8383
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 asapplied 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 overbreadth 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 considered ACORN’s argument that “even if its ‘tagging’ of vehicles 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 activities 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 quotation 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 ordinance. As the Supreme Court has recently explained, to succeed in “a typical facial attack,” a plaintiff must establish

“that no set of circumstances exists under which [the challenged ordinance] would be valid, or that the statute lacks any

plainly legitimate sweep.” United States v. Stevens, 130 S. Ct.

8384 COMITE DE JORNALEROS v. REDONDO BEACH
1577, 1587 (2010). The bar is lower in the First Amendment

context, however, where “a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, 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 unconstitutionally 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

COMITE DE JORNALEROS v. REDONDO BEACH 8385
manner restriction upon speech occurring on the City’s sidewalks 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, business or contributions’ from occupants of vehicles.” The ordinance 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, inperson demands requiring an immediate response from drivers 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 drivers 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 analyzing 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, including 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 constitutional 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.” 

8386 COMITE DE JORNALEROS v. REDONDO BEACH
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 communication. The Redondo Beach ordinance fails to meet this standard. 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 individuals 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 gardening, housekeeping, and construction. Because of the temporary, 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 perception 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

COMITE DE JORNALEROS v. REDONDO BEACH 8387
area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, medians, alleys, sidewalks, curbs,

and public ways.

Two years later, the City enacted subsection (b), which provides: 

(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 owners about day laborers gathering along city streets and congregating 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 aggressively 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 operation 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

8388 COMITE DE JORNALEROS v. REDONDO BEACH
prohibited day laborers in the City from engaging in solicitation 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, injunctive, 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 preliminarily enjoined the City from enforcing the Ordinance or

1Day 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 majority 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 contends 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 ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”). 

COMITE DE JORNALEROS v. REDONDO BEACH 8389
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 threejudge 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 crossmotions for summary judgment on the facial constitutionality

of the Ordinance. The district court ruled that although the

Ordinance is content neutral, it is unconstitutionally overbroad. The district court specifically rejected the City’s contention that our opinion in ACORN v. City of Phoenix was

controlling precedent, correctly determining that ACORN

involved an “as-applied” challenge and was otherwise distinguishable 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 permanently 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 intertwined with informative and perhaps persuasive speech seeking 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

8390 COMITE DE JORNALEROS v. REDONDO BEACH
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 dispute 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 “prohibits 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 performers 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 conduct, 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 exclusively 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.

COMITE DE JORNALEROS v. REDONDO BEACH 8391
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 “occup[y] a special position in terms of First Amendment protection.” 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, immunities, 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 individuals to commandeer public fora for expressive purposes. Harry

Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 UCLA L. Rev. 1, 12-13. It has become an unassailable 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.

8392 COMITE DE JORNALEROS v. REDONDO BEACH
37, 45 (1983); Kunz v. New York, 340 U.S. 290, 293-94

(1951); Jamison v. Texas, 318 U.S. 413, 415 (1943). Consequently, 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 ordinances affecting speech in these areas is therefore strictly limited. 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 Consciousness, 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 sophisticated 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

2For 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 critical 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 contradicting and disproving our opinion is the very condition which justifies

us in assuming its truth for purposes of action.” John Stuart Mill, On Liberty 11 (Longmans, Green, & Co. 1921) (1859). Broad access to traditional public fora directly advances each of these asserted interests. 

COMITE DE JORNALEROS v. REDONDO BEACH 8393
to society is fundamental. See Thomas I. Emerson, The System 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 demonstrate 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 restriction of enjoyment of these liberties.” Id. When the government 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 regulate 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

8394 COMITE DE JORNALEROS v. REDONDO BEACH
public fora, while subsection (b) prohibits persons in even

lawfully parked cars from hiring, or attempting to hire, anyone 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 alternatives for communication.3

 Ignoring the full body of jurisprudence 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, confronted a very specific, narrow set of circumstances to which

the parties in that case stipulated and to which we have subsequently confined it. Thus, the ACORN decision does not control this case.

In ACORN, the Association of Community Organizations

for Reform Now (“ACORN”) claimed that a Phoenix ordinance 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 solicit[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,

3For present purposes, I assume that the district court’s conclusion that

the regulation is content neutral is correct. However, this is a closer question than it appears. See Berger, 569 F.3d at 1051. 

COMITE DE JORNALEROS v. REDONDO BEACH 8395
seeking damages pursuant to 42 U.S.C. § 1983 and a declaratory 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 programs are commonly known as ‘tagging,’ which usually 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 providing 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 district 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 disruptive nature of fund solicitation from the occupants of vehicles. 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 distribution of literature, successful solicitation requires the

8396 COMITE DE JORNALEROS v. REDONDO BEACH
individual to respond by searching for currency and

passing it along to the solicitor. Even after the solicitor 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, immediate 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 prohibited “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 solicitation 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, roadways, 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

COMITE DE JORNALEROS v. REDONDO BEACH 8397
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 conduct 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 Ordinance reaches much more First Amendment protected expression than did

the Phoenix ordinance. 

8398 COMITE DE JORNALEROS v. REDONDO BEACH
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 solicitation 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 evidence to suggest that the Phoenix ordinance curtailed any

activity other than solicitation from vehicles at an intersection.” 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 number 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 litigants “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 existence 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 considered a First Amendment overbreadth challenge. All that

ACORN argued was that the Phoenix ordinance regulated its

own tagging activity “too broadly.” Plaintiff-Appellants’

COMITE DE JORNALEROS v. REDONDO BEACH 8399
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 Amendment facial overbreadth challenge to the Ordinance. Therefore, 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 compromise recognized First Amendment protections of parties not

before the Court.” City Council of L.A. v. Taxpayers for Vincent, 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 sanctions may deter [speech] almost as potently as the actual

5The 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 “facial 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.”). 

8400 COMITE DE JORNALEROS v. REDONDO BEACH
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 attempting to restrict or burden the exercise of First Amendment

rights must be narrowly drawn and represent a considered legislative 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 challenge, their solicitation of employment could not be more distinct from conduct causing immediate disruption of traffic

flow. As the City itself argues, “ACORN addressed the application 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 associated 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. Colorado, 530 U.S. 703, 715-16 (2000) (“It is also important . . .

to recognize the significant difference between state restrictions 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 solicitation, or attempted solicitation, of immediate, in-hand contributions 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 approaching a stopped vehicle. The very nature of the potential

employer/day laborer relationship belies the majority’s assertion that an immediate exchange of money is required. No

rational employer would pay the day laborer before the work

COMITE DE JORNALEROS v. REDONDO BEACH 8401
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 contribution of money. The majority’s use of ACORN to justify the

application of the Ordinance to their activities, therefore, represents a marked expansion of ACORN’s scope directly contrary to controlling precedent. More fundamentally, as an asapplied challenge, ACORN did not address the broader question 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 restriction because it is not narrowly tailored to the significant governmental interests asserted by the City.6

 To be narrowly

tailored, an ordinance must “ ‘promote[ ] a substantial government 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 legitimate 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

6The 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. 

8402 COMITE DE JORNALEROS v. REDONDO BEACH
the City’s interest in traffic flow and safety. This overinclusiveness 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, solicitation 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 employment and providing a cell phone number. Similarly, the Ordinance 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 ‘tagging’ 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,

COMITE DE JORNALEROS v. REDONDO BEACH 8403
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.’ ” Stevens, 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 displaying of signs on vehicles with the intent to “display, demonstrate, 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, noting that “we are not required to insert missing terms into the

statute or adopt an interpretation precluded by the plain language 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 construction); Ripplinger v. Collins, 868 F.2d 1043, 1056 (9th Cir.

1989) (“[T]he language of the definition does not seem readily susceptible to a narrowing construction. It would be necessary to add language requiring that the defendant have

knowledge of the ‘overall character’ of the material . . . .”).

8404 COMITE DE JORNALEROS v. REDONDO BEACH
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 applicable to nonpublic fora. See id. at 683-84. Justice Kennedy in

his concurring opinion—joined by Justices Blackmun, Stevens, 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 regulation, 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 statute is overbroad, all enforcement is invalidated “ ‘until and

unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally 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

COMITE DE JORNALEROS v. REDONDO BEACH 8405
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 Government 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 establishments. 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 currently 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 ‘constructions’ 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 performer 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 definition of “street performer” included “a member of the general 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

8406 COMITE DE JORNALEROS v. REDONDO BEACH
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 guitarplaying 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 further its asserted interests that do not burden protected speech.

“We have said that ‘if there are numerous and obvious lessburdensome alternatives to the restriction on [protected]

speech, that is certainly a relevant consideration in determining 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 number 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 authorities 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.

COMITE DE JORNALEROS v. REDONDO BEACH 8407
§ 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 obstruction 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 activity. 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

8408 COMITE DE JORNALEROS v. REDONDO BEACH
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

7The 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 misunderstanding 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 channels. 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. 

COMITE DE JORNALEROS v. REDONDO BEACH 8409
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 control over a driver’s response, which is tantamount to a lack of

control over a violation of the Ordinance, makes this “alternative” 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 certain members of their target audience by soliciting pedestrians, 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

8410 COMITE DE JORNALEROS v. REDONDO BEACH
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 alternatives 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 insufficient.

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 alternative is not constitutionally adequate if it is facially prohibited by the challenged ordinance.

Finally, the City claims that strip mall parking lots adjacent

to the main areas in which day laborers congregate can operate as alternative avenues of communication. This suggestion

is at odds with the City’s assertion that it enacted the Ordinance in part due to the complaints of those very local business 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 available. 

COMITE DE JORNALEROS v. REDONDO BEACH 8411
The City relies on Robins v. Pruneyard Shopping Center,

23 Cal. 3d 899 (1979), aff’d 447 U.S. 74 (1980), and its progeny to argue that day laborers are free to exercise their First

Amendment rights on private property, even over the objection of property owners. In Pruneyard, the California

Supreme Court held that the California Constitution’s guarantee of freedom of expression, Cal. Const. art. I, §§ 2-3, “protect[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 stations, 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 concluded 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

8412 COMITE DE JORNALEROS v. REDONDO BEACH
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 Pruneyard inapplicable.

The City asserts that property owners’ objections are

merely speculative. The City belies its own record; it is undisputed 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 laborers 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 Plaintiffs 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,

COMITE DE JORNALEROS v. REDONDO BEACH 8413
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 precedent involving an as-applied challenge to the constitutionality 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.

8414 COMITE DE JORNALEROS v. REDONDO BEACH