15 -2 91 4- cv Centro v. O yster Bay

1 

## I n t he

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# Uni te d Stat es Cour t of A ppeal s 3 

## For the Second Cir cuit 4

________ 5 6 August Term, 2016 7 8 No. 15-2914-cv 9 10 C E N T R O D E L A C O M U N I D A D H I S P A N A D E L O C U S T V A L L E Y, A N D T H E 11 W O R K P L A C E P R O J E C T, 12 Plaintiffs-Counter-Defendants-Appellees , 13 14 v. 15 16 T H E T O W N O F O Y S T E R B A Y, A N D J O H N V E N D I T T O , Town Supervisor of 17 the Town of Oyster Bay, 18 Defendants-Counter-Claimants-Appellants. 19

________ 20 21 Appeal from the United States District Court 22 for the Easte rn D istrict of New York. 23 No. 10-cv-02262 (DRH)

 ̄Denis R. Hurley, Judge

. 24

________ 25 26 Argued: Se ptember 12, 2016 27 Decided: August 22, 2017 28

________ 29 30 Before : J A C O B S and P A R K E R, Circuit Judges , and R E S T A N I, Judge

. * 31

________ Judge Jane A. Restani, of the Uni ted States Co urt of Internati o na l Trade, sitti ng b y * desi gna tio n.No. 15-2914-cv

1 Defe ndants-Appellants The Town of O y s te r Bay and Oyster 2 Bay Town Super visor John Venditto appeal from a jud g me n t of the 3 United S ta te s District Court for the Eastern District of New York 4 (Hurley, Judge ). The district court held that an ordi n a n c e o f the 5 Town of Oyster Bay ostensibly des ig n e d to regulate the solici tati on 6 of work by day laborers in the Town viol ated the First A me ndment. 7 We affirm. 8 9 Judge Jacobs disse nts in a separate o pinion. 10 11

________ 12 J O N A T H A N S I N N R E I C H , S innreich Kosakoff & 13 Messina LLP, Cen tral Isli p, NY, for Defendants14 Counter-Claimants-Appellants The Town of Osyter 15 Bay and John Venditto

. 16 A R T H U R E I S E N B E R G , J O R D A N W E L L S , M A R I K O 17 H I R O S E , N e w Y o r k C i v i l L i b e r t i e s U n i o n 18 Foundation, New York, NY; A L A N L E V I N E , 19 J A C K S O N C H I N , Latino J ustice PRLDEF, New 20 Y o r k , N Y , f o r P l a i n t i

f f s - C o u n t e r - D e

f e n d a n t s 21 Appellees Cent r o d e la Comunidad Hispana de Locust 22 Valley and The Workplace Project. 23

________ 24 25 26 27 28 29 30 31 32

2No. 15-2914-cv

1 B A R R I N G T O N D. P A R K E R, Circuit Judge : 2 This appeal requires us to determine whether an ordinance 3 passed by the Town of Oyster Bay to regul a te th e road-side 4 solici tati on of employment compli es with th e First Amendment. 5 The district court concluded it did not and grant e d injunctive relief 6 to Plaintiffs-Appellees the Workplace Project (“Workplace”) and 7 Cen tro de L a C omunidad de Hispana de Locust Valley (“Cen tro”), 8 two entiti es that work to a d v a n c e the interests of day laborers in the 9 area. We affirm. * * 10 In 2009, the Town of Oyster Bay’s b oard passed an ordinance 11 titled “Solici tati on from Stree ts a n d Sidewalks Prohibited” (the 12 “Ordinance”), which pr incipal ly i mposed the following restriction:

13 It shall be un la wful for any pers on standing within or 14 a djace nt to any public right-of-way within the Town o f 15 Oyster Bay to stop or attempt to stop any motor vehicle 16 util izing said public right-of-way for the purpose of 17 solici ting employment o f a n y kind from the occupants 18 of said motor vehicle.

19 Joint Appendix on Appeal (“App’x”) 466

– 6 7

. The Ordinance 1 20 exempts the s o li citati on of a wide variety of “[s]er vice related 21 activi ties such as taxicabs, li mousine service, p u b li c transpor tati on 22 vehicles, towing operations, amb ulance service and simi lar uses.” 23 App’x 467. 24 The Ordinance’s stated objective is to protect residents from 25 “the dangers of obstruction, distraction and delays of traffic caused 26 by the solici tati on of employment by pedes trians.” Ap p ’ x 4 6 6. The 27 recor d reflects that the actual impetus for the Ordinance was a desire 28 to regulate day lab o r e rs seeking employment in Oyster Bay.

Al so on appeal i s the di stric t cour t ’ s e nt r y o f a pro tecti v e or der, which we reso l v e i n a ** summa ry o rder i ssued si multaneousl y with thi s op i nio n. Except as o therwise noted , the f acts reco unted here are undi sputed. 1 3No. 15-2914-cv

1 Specifically, the Town of Oyster Bay sought to restr ict the effects of 2 dail y gatherings of usually 20–30, but sometim es 50, da y laborers 3 solici ting employment along a four-blo c k s tr etch of Oyster Bay’s 4 Forest Avenue (known as the “Forest Avenue shape-up sit e ” )

. A t an 5 in itial public meeting, Oyster Bay residents complained that the d a y 6 labo rer s were causing dangerous, congestive, unhygienic, and 7 unsightly conditions. See App’x 734. At a sub s e qu e n t public 8 h e a r in g, residents spoke both in favor of and against a propose d 9 version of the Ordinance. Cer tain residents disc u s s e d traffic 10 problems created by the laborers ’ solici tati on, see App’x 801, while 11 others premised their objections on th e ir views as to the laborers ’ 12 imm igration statu s, seeApp’x 826. 13 Prior to the Ordin a n c e ’ s enactment, an investigati on was 14 conducted at the direction of Oy s te r Bay Town Super visor and 15 Defe ndant John Venditto. In furtheran ce of that investigation, 16 Oyster Bay’s Commiss ioner of Publi c Safety visit ed the Forest 17 Avenue shape-up site “between 15 and 2 0 ” times, and, among the 18 “numerous and re p e a ted” issues he obser ved caused by the day 19 labore r s ’ activi ties were: (i) automobil e and pedes trian traffic 20 congestion leading to hazards, delays, and noise disturbance; (ii) 20 21 to 30 day laborers “sw arm[ing]” passing cars; and (iii ) impeding and 22 forced r e-routing of school busse s. App’x 1029–33. 23 The Ordinance was unanimously adopted by the town board 24 in Sep te mb e r 2 0 09. However, it has never been enforc ed and no 25 pers on has be en char ged with viol ating i t. App’x 1035. 26 In Ma y 2010, Plaintiffs sued the Town of Oyster Bay an d 27 Town Super visor Venditto (together, the “Town”) under 42 U.S.C. § 28 1983 to e n

jo in th e Ordinance on the ground that it viol ated the First 29 and Fourteenth Amendments. App’x 128. The District Court found 30 that the Ordinance li kely viol ated the First Amendment and entere d 31 a temporar y restr aining order that was converte d into a preliminary 32 injuncti on. The Town a p pealed to this Court contending that 33 Plaintiffs’ members who were subject to the Ordinance were il legal 34 imm igrants engaging in il legal spee ch that was n o t protected by the

4No. 15-2914-cv

1 First Amendment and, alternatively, that the Ordinance was 2 n a r r o w ly ta il o r e d a n d t h e r e f o r e c o m p l i e d w it h th e F ir s t 3 Amendme n t. W e affirmed on the ground that the district court had 4 not abused its discret io n in converting the temporary restr aining 5 order into a p reliminary injuncti on and remanded to the District 6 Court because the recor d on appeal contained no factual 7 development. Centro de la Comunidad Hispana de Locust Valley v. 8 Town of Oyster Bay, 420 F. App’x 97 (2d C ir. 2011). 9 On remand, the Town moved for partial summary judgment 10 on the ground that Cen tro lacked sta n d in g. The court denied the 11 moti on, concluding that Cen tro a dequately established that the 12 Ordinance would impose actionable inj u r ie s to Cen tro as an 13 organization. Centro de La Comunida d Hi spana de Locust Valley v. 14 Town of Oyster Bay, 954 F. Supp. 2d 127, 135

- 3 6 (E.D.N.Y. 2013). 15 Subse quently, Plaintiffs moved for summary judgment, which the 16 district court gran te d

. C e ntro de La Comunidad Hispana de Locust 17 Valley v. Town of Oyster Bay, 128 F. S u p p . 3 d 5 97 (E.D.N.Y. 2015). 18 Th at ruling rejected the Town’s argument that Workplace lacke d 19 s tanding, and, after finding that the Ordinance viol ated the First 20 Amendment, permanen tly e n joined the Town from enforc ing it. The 21 district court’s basis f o r finding the Ordinance unconstituti onal was 22 that although the Ordinance serve d a legitimate Town interest, it 23 w a s ins uffici ently narro w to serve that interest and consequently 24 could not pass muster under the First Amendment commercial 25 spee ch framework of Central Hudso n G a s & Electric Corp. v. Public 26 Service Commission of New York , 447 U.S. 557 (198 0 )

. This appeal 27 followed.

28 I

29 “We r e v ie w de novo both a district court’s grant of summary 30 judgment and its d e te r mi n a tion of standing.” Nat. Res. Def. Council, 31 Inc. v. U.S. Food & Drug Admin. , 710 F

. 3 d 7 1 , 79 (2d Cir. 2013) . 32 Summary judgment is proper only where “th e movant shows that 33 there is no genuine dispute as to any mater ia l fact and the movant is
5No. 15-2914-cv

1 e n ti tl e d to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We 2 must “co n s tru[e] the evidence in the li ght most favorable to the non3 moving party and draw[] all reaso nable in f e rence s in its favor.” 4 Costello v. City of Burlington , 632 F.3d 41, 45 (2d Cir. 2011).

5 II

6 The Town’s main argument o n appeal is that Workplace and 7 Cen tro lack s ta n d ing because they are esse ntial ly disorganized ad8 hoc interest groups that aim to vindicat e gener ali zed grievances 9 rather than r e d r ess concre te and imm inent harms. The district court 10 concluded that both organizations have standing to challenge the 11 Ordinance because they both establis hed that enforc ement of the 12 Ordinance would pose a “perce ptible impai r ment” to their activi ties. 13 954 F. Sup p . 2 d at 134–37 (Cen tro); 128 F. Supp. 3d at 607–09 14 (Workplace). 15 We conclude th a t the district court corre ctly held that 16 Workpl a c e has standing. Because this conclusion is a sufficient 17 predicate for feder al jurisdiction, we are not called on to consider, 18 a n d theref ore do not reach, the question of whether Cen tro h a s 19 standing. It is well settled that where , as here , mul tipl e p a r ti e s s eek 20 the same relief, “the pres ence of one party with standing is sufficient 21 to satisfy Article III ’s case-or -controver sy requirement.” Rumsfeld v. 22 Forum o

f Acad. and Inst. Rights, Inc. , 547 U.S. 47, 52 n.2 (2006); see also 23 Doe v. Bolton , 410 U.S. 179, 189 (1973); Bowsher v. Synar , 478 U.S. 714, 24 721 (1986). 25 It is undisputed that Workplace is an incorp o rated 26 membership organization based in Nassau County, New York, the 27 same county in which Oyster Bay is located. App’x 990. It s mission 28 is to “end the exploitati on of Latino imm igrant worker s on Long 29 Island and to achieve socioeconomic justice by promoting the full 30 political, economic and cultu ral participatio n o f those worker s in the 31 communi ties in which they liv e.” App’x 990. Workplace furthers its 32 mission “with the participati on of Latino imm igrant work e r s on

6No. 15-2914-cv

1 Lo n g Island through communi ty organizing, legal support, 2 e d u c a t i o n , l e a d e r s h i p d e v e l o p m e n t , a n d b u i l d i n g w o r k e r 3 cooperatives.” App’x at 990. 4 To establish standing, Workplace, as an organization, bore the 5 burden of showing: (i) an imm inent “injury in fact” to itself as an 6 organization (rather than to its members) that is “distinct and 7 palpable”; (ii) that its injury is “fairly traceable” to enforc ement of 8 the Ordinance; and (iii ) tha t a favorable decision would redr ess its 9 injuries. Nne b e v . Daus , 644 F.3d 147, 156 (2d Cir. 2011) (quoting 10 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); see also Susan B. 11 Anth o ny List v. Driehaus , 134 S.Ct. 2334, 2342 (2014) (“The party 12 invoking feder al jurisdiction bear s the burden of establishing 13 standing” (internal quotation marks o mi tted)). The Supre me Court 14 has held that an organization estab li s h e s an injury-in-fact if it can 15 show that it was “perce ptibly impai red” by defendan t’s act ions

. 16 Havens Realty Corp. v. Coleman , 455 U.S. 363, 379 ( 1 9 82). 17 Conse quently, we have repe atedly he ld that “only a ‘perce ptible 18 impai rment’ of an organization’s activi ties is neces sary for there to 19 be an ‘injury in fac t. ’ ” Nn e b e, 644 F.3d at 157 (quoting Ragin v. Harry 20 Macklowe Real E s t a t e C o. , 6 F.3d 898, 905 (2d Cir. 1993)); N.Y. Civil 21 Liberties Union v. N.Y.C. Transit Auth. , 684 F.3d 286, 294 (2d Cir. 22 2011); N.Y. State Citizens’ Coal. for Chil dren v. Velez, 629 F. App’x 92, 23 9 4 ( 2 d Cir. 2015). Moreover, we have held that where , as here , a 24 party seeks review of a prohibition prior to its being enforc ed, 25 “somewhat relaxed standing” rules apply. Nat’l Org. for Marriage, 26 Inc. v. Walsh , 714 F.3d 682, 689 (2d Cir. 2013). 27 The Town c h a ll e nges only the district court’s determination as 28 to th e f ir st standing prong, arguing that Workplace failed to 29 establish injuries that were concr ete or imminent. We disagre e. 30 A. Workplace Established Concrete Injuries 31 Work p la ce asser ted that enforc ement of the Ordinance wil l 32 injure it in three ways. First, enforc ement wil l a d v erse ly impact its 33 abili ty to organi ze day laborers because the Ordinance wil l

7No. 15-2914-cv

1 neces sarily disperse and reduce the number of day labo rer s 2 gathering in Oyster Bay. S e c o n d, enforc ement wil l require 3 Workplace to divert reso urces from other of its activi ties to combat 4 the effects of the Ordinance. And third, enforc ement will e x p o se its 5 advocates to risk of arre st because those enforc ing the Ordinance 6 cann o t d iffe rentiate between advocacy activi ties and the day 7 laborers ’ s olici tati on. Tellingly, the Town esse ntial ly concedes that 8 those injuries could confer standing, but ar g ues primarily that 9 Workplace has not sh own they have occur red. 10 B u t the Supre me Court has been clear that in a p r e 11 enfo r c e me nt action such as this “the injury required for standing 12 need not be actuali zed. A party facing prospe ctive injury has 13 s ta nding to sue where the threatene d injury is real, imm ediate , a n d 14 d ir e c t. ” Davis v. F.E.C. , 554 U.S. 724, 734 (2008). Workplace has met 15 this stand a r d

. It pres ented evidence identifying the concre te and 16 particularized injuries that the Ordinance will i mpose. 17 Th e recor d demonstrates that Workplace’s activi ties include 18 traveling to day laborer sites in Oyster Bay to speak w it h la b o rer s 19 a n d i f t h e O r d i n a n c e a c h i e v e s o n e o f i t s p r i n c i p a l 20 o b j e c t i v e s — d i s b u r s e m e n t o f d a y l a b o r e r s — W o r k p l a c e w i l l 21 inevitably face increase d difficu lty in meeting with and organizing 22 those laborers

. App’x 9 9 1. We have held that an organization 23 shows injury-in-fact where , as here , a “po li cy has impeded, and wil l 24 continue to impede , th e organization’s abili ty to carry out [its] 25 resp onsibili t[ies].” N.Y. Civil Liberties Un i o n , 684 F.3d at 295; see also 26 Comite de Jornaleros de Redondo Beach v. City o f R e d o n do Beach , 657 F.3d 27 936, 943 (9th Cir. 2011). 28 Relatedly, it is also clear that the O rdinance wil l force 29 Workplace to divert money from its other curre nt activi ties to 30 advance its established organizational interests ( i.e. , if the la b o r e rs 31 a r e disperse d, it wil l be more costly to reach them). In fact, 32 Workplace offer e d unreb utted testimony that it has already had to 33 devote a tte ntion, tim e, and pers onnel to prepar e its resp onse to the 34 Ordinance. App’x 956–57. And, where an organi z a ti o n diverts its

8No. 15-2914-cv

1 r e s ources away from its curre nt activi ties, it has suffere d an injury 2 that has been repe atedly held to be independen tly sufficient to 3 confer organizational standing. See Havens Realty Corp. , 455 U.S. at 4 379 (a “concre te and demons tr ab le injury to [an] organization’s 5 a c tivi ties—with the consequent drain on the organization’s 6 reso urces—con stitutes far more than simply a s e tb a ck to the 7 organi z a ti o n ’ s abstract social interes ts”); see also Olsen v. Stark Homes, 8 Inc. , 759 F.3d 140, 158 (2d Cir. 2014); Nnebe, 644 F.3d at 157; Ragin , 6 9 F.3d at 905. Signifi cantly, the Supre me Court has r ecently reaffirmed 10 Havens Realty ’s holding that a nonprofit organiz ation establishes an 11 injury-in–fact if, a s here , it establishes that it “spent money to 12 combat” activi ty th a t harms its organization’s core activi ties. Bank of 13 Am. Corp. v. City of Miami, 137 S.Ct. 1296, 1303 (2017). 14 Finally, Workplace offere d evidenc e that those resp onsible for 15 enforc ing the Ordinance are li kely to confuse the conduct of 16 Workplace’s activi sts with that of the day laborers

. See App’x 727–78 17 (testimony from a Town law enforc ement offic e r th at he is unable to 18 distinguish day laborers from activi sts in a photo taken at a s h ape19 u p s ite); App’x 958–60 (testimony from Workplace activi st that she 20 fears her activi sm wil l be mistak en for conduct prohibited by the 21 Ordinance). As the district c o u r t concluded, not only might this 22 create a risk of err oneous arre st, it makes it “perce ptible that 23 enforc ement of the Ordinance would preve nt Work p la c e from 24 engaging in couns e li n g at shape-up sites within the Town and thus 25 impai r its advocacy activi ties.” 128 F. Supp. 3d at 609. 26 As discussed, ea c h of Workplace’s demonstrated injuries are 27 sufficient to c o nstitute an injury-in-fact. In li ght of these 28 co n s iderations, we conclude that Workplace has shown that the 29 Ordinance threatens the requisite “perce ptible impai rment” of its 30 activi ties and thus impose s concre te injuries for purpose s of feder al 31 jurisdiction.

9No. 15-2914-cv

1 B. Workplace Established Imminent Injuries 2 The Town next argues th a t e ven if the Ordinance could affect 3 advoca te s working on behalf of day laborers in the ways Workplace 4 asser ts, Workplace has not s h o w n that it wil l conduct such work 5 within the relevant area of Oyster Bay

. B r. of Appellants 33–34. 6 Cons e qu e n tly, according to the Town, any potential injury to 7 Workplace is not imm inent. We disagree. 8 The recor d establishes that Workplace had substantially mo r e 9 th a n a n imminent intention to engage in the activi ty that would 10 subject it to the injuries it a s s erted. Workplace has actively worked 11 in Oyster Bay and actively campaigned against the Ordinance on 12 behalf of its member s . This conduct amounted to much more than a 13 “‘some day’ intention” or a “vague desire” to engage in the activi ties 14 that wil l subject it to its asser ted injuries. See Summers v. Earth Island 15 Inst. , 555 U.S. 488, 496 (2009). The case law makes clear th at 16 Workplace’s injuries are sufficiently imm inent. In Davis , 554 U

. S

. at 17 734, for example, Justice Ali to, writing for a majority of th e c o u rt, 18 h e ld that a political candidate faced injury sufficiently imm inent to 19 c h a ll enge campaign disclosure requirements by simply declaring his 20 intention to run f o r o f f ice and to spend more than the amount for 21 which disclosure was requir e d

. H e r e , Workplace has done at least 22 as much as what passed muster in Davis and, as a consequence, has 23 established imm inent injuries. In sum, Workplace established its 24 standing.

25 III

26 We now turn to the constituti onality of th e O rdinance under 27 the First Amendment. Our p r e li mi n ary task is to determine if the 28 Ordinance is even subject to the First Amendment by asking if it 29 restr icts spee ch based on it s content. We conclude that the 30 Ordinance is a content-base d restr icti on, specific a ll y, a restr icti on on 31 commercial spee ch. So finding, we then asse s s whether the

10No. 15-2914-cv

1 Ordinance survives the Central Hudson test applicable to commercial 2 spee ch res tricti ons. 3 The district court, applying Central Hudson , concl u d e d that the 4 Ordinance is a cont e nt-based commercial spee ch restr icti on that was 5 not narro wly drawn and, as a consequence, viol ated the First 6 Amendment. Specifically, it con c lu d e d that the Ordinance targets 7 spee ch co n c e r n ing lawful activi ty; that the Town’s interest is 8 substantial; that the Ordinance directly ad v ances that interest; but 9 that th e O r d inan ce was not narro wly tail ored to serve that interest. 10 See Central Hudson , 447 U.S. at 566. 11 We arrive at esse ntial ly the same conclusion as th e district 12 court. Specific a ll y, we agree that: (i) the Ordinance restr icts spee ch 13 based on it s c o n tent and is the refor e subject to the First Amendment; 14 and (ii) the Ordinance fails the Centra l H u dson test because it is an 15 overb road commercial speech pr ohibiti on.

16 A. The Ordinance Is a Content-Based Restriction 17 Workplace is c o r r ect that the Ordinance impl icates the First 18 Amendment because it r e s tr icts spee ch based on its content. 19 Although the Ordinance has a conduct component—th e a ttempted 20 stoppin g of a vehicle—the Ordinance only punishes such conduct if 21 done “for the purpose of solici ting e mploym ent.” Conse quently, 22 Town official s mu s t monitor and evaluate the spee ch of those 23 stopping or attempting to stop vehicles and they may s a n c tion the 24 speak er only if a suspect says the wrong thing, for example, “hire 25 me” as opposed to “tell me th e time.” This is a content-base d 26 restr icti on and it is well settled that such re s tr icti ons impl icate the 27 First Amendment. For example, in Police Depa r tment of the City of 28 C hicago v. Mosley, 408 U.S. 92, 95 (1972), the Supre me Court asses sed 29 a city ordinance which prohibited peaceful picketin g u n le ss it was

11No. 15-2914-cv

1 aimed at a s c h o ol labor- management dispute. The Court invali dated 2 the ordinance as content-base d because “it descr ib e[d] permissible 3 picketing in term s of its subject matter,” in that, as here , the 4 “operative distinction [betwee n the permissible and impermi ssible 5 conduct] is the message.” Id.

6 B. Central Hudson Test for Commercial Speech 7 The district court corre ctly concluded that, because the 8 Ordinance restr icts spee ch only if it const itutes solici ting of 9 employment, the spee ch targeted by the Ordinance is commercial 10 spee ch. It is well settled that spee ch that is no more than a pr o p o s al 11 of possible employm e n t is a “classic e xample” of commercial spee ch. 12 Pittsburgh Press Co. v. Pit t s b urgh Comm’n on Human Relations , 413 U.S. 13 376, 385 (1973); see also Moldonado v . Ho l d er , 763 F.3d 155, 173 (2d Cir. 14 2014) (Lynch, J., dissenting). Because the Or d in ance targets 15 commercial spee ch, w hich is afforded less protection than other 16 c onstituti onally safeguarde d forms of expr ession, it is subject to th e 17 Central Hudson analysis, to whi ch we now turn. 2 18 In con tr a s t to the strict scrutiny applied to, for example, core 19 political s p e ech restr icti ons, the Central Hudson test for commercial 20 spee ch restr icti ons is a form of interme d ia te scrutiny. See Safelite 21 Grp., Inc. v. Jepsen , 764 F.3d 258, 261 (2d Cir. 2014). It requ ir e s u s to 22 ask: (i) i f th e Ordinance restr icts sp eech that con cerns lawful activi ty; 23 (ii) if the Town’s asser ted in te rest is substantial; (iii ) if the Ordinance 24 direc tl y advances that interest; and (iv) if the Ordinance is more 25 extens ive than neces sary to serve that interest? C e n t ral Hudson , 447

Wor kplace argues tha t the speech restri cted b y the Ordi nan ce i s “i deo l ogi cal adv ocacy and 2 pol i tic al speech,” rather than commerc i al speech. Br. of Appe l l ees at 19

–24

. Because we concl ude tha t the Ordi nan ce fail s even ass uming the restri cted speech i s commerc i al speech, which i s “affo rd [ e d ] l ess pro tecti on” than pol i tic al speech, Connecticut Bar Association v. United States , 6 20 F.3 d 8 1, 93 (2 d Ci r. 2 01 0) , we nee d no t reso l v e thi s questio n. 12No. 15-2914-cv

1 U.S. at 566. The government b e a r s th e burden of justify ing the 2 re s tr ic ti o n. Bolger v. Youngs Drug Prods. Corp. , 463 U.S. 60, 71 n.20 3 (1983).

4 i. The Restricted Speech Concerns Lawful Activity 5 “For commercial spee ch to c ome within [the protection of the 6 First Amendment], it a t least must conce rn lawful activi ty an d not be 7 misl eading.” Cent r a l Hudson , 447 U.S. at 566. The district court 8 concluded that the s p eech targeted by the Ordinance—the 9 solici tati on of employment—“i s not in and of itself il legal,” and 10 theref ore the spee ch prohibited by the Ordinance is p r otected by the 11 F ir s t A me ndment. 128 F. Supp. 2d at 614. We too conclude that th e 12 Ordinance r e s tricts First Amendment protected spee ch that 13 “concer n[s] lawful acti vity.” 14 The Supre me Court has offere d guidance o n w h at it means for 15 spee ch to “concer n lawful activi ty.” Notably, in Pittsburgh Press , it 16 held a prohibition against gender

- b ased placement of help-wanted 17 ads restr icted s peech that did not concer n lawful activi ty, con cluding 18 that the ads were entitl ed to n o First Amendment protection because 19 “[d]iscrimination in employment

. . . is il legal commercial a ctivi ty.” 20 413 U.S. at 388; see also id. (“We have no doubt th a t a newspape r 21 constituti onally could b e forbidden to p ublish a want a d proposing a 22 sale of narcotics or solici ting prostitutes.”). The basis for s tr ip ping 23 such spee ch o f all First Amendment protection was that “the 24 commercial activi ty itself is il legal.” Id. a t 389. Our cases decided 25 after Pittsburgh Press offer additional cl arity. 26 In Swedenburg v. Kell y, 3 5 8 F

. 3d 223 (2d Cir. 2004), rev’d on 27 unrelated grounds , 544 U.S. 4 6 0 (2005), we asses sed a New York 28 statute prohibiting unli cense d pers ons from sending into th e s tate 29 “publicati on[s] of any k in d containing an advertisement or a

13No. 15-2914-cv

1 solici tati on of any order f o r a n y alcoholi c bever ages.” Id. at 240. 2 New York law prohibited unli cense d pers ons f r o m shipping alcohol 3 into the state, and New York a rgued that it interprets its prohibition 4 to apply only to the solici tati on of such il legal order s. H o w e v er, we 5 a ffirmed invali dation of the statute because its “broad lang u a g e ” 6 also restr icted the advertisement (and not just solici tati on) of alcoholi c 7 b e v e r a g es. Id. at 240–41. Conse quently, because the statute could b e 8 applied to restr ict spee ch promoting lawful activi ty, we held the 9 restr icted speech “con cerns lawfulactivi ty” per Central Hudson

. Id. 10 In Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010), we interprete d 11 the “not be misl eading” component of C e n t r al Hudson ’s first prong. 12 There, we held attorney advertising restr icti ons that prohibited 13 “ p o te ntial ly misl eading ads” were subject to Central Hudson

. Id

. a t 14 89. We noted that “‘States ma y n o t p lace an absolute prohibition on 15 certain types of potentially misl eading info r ma ti o n . . . if the 16 informati on also may b e pres ented in a way that is not deceptive.’” 17 Id. at 89 (quoting In r e R

. M

. J

. , 455 U.S. 191, 203 (1982)). Although not 18 addres sing Central Hud son ’s “concer n[s] lawful activi ty” language, 19 Alexander shows that commercial spee ch is not categorically 20 removed from the Fir s t A me ndment on a specified basis if that basis 21 is not applicable to all manifestati on s of the restr icted spee ch. See id. 22 at 90. 23 The Fou r th C ir cuit’s decision in Educational Media Co. at 24 Vir g i n i a Tech, Inc. v. Swecker, 602 F.3d 583 (4th Cir. 2010) is also 25 instructive. To c o mb a t underage drinking, Virginia’ s Alcoholi c 26 Bever age Control Board prohibi te d “college student publicati ons” 27 from advertising alcoholi c bever ages. Two student newspape rs 28 s u ed. The Fourth Circuit concluded that the prohibition w a s a 29 restr icti on on commercial spee ch that concer ned lawful activi ty. It 30 con c luded as such because even though the newspape rs’ reade rs 14No. 15-2914-cv

1 were primarilyunder the legal drinking age, the restr icti on applied to 2 ads that could be viewed by those who were o f age:

3 On its face, § 5-20-4 0 ( B ) ( 3) does not restr ict commercial 4 spee ch solely distributed to underage students; rather, it 5 applies to c ommercial spee ch that, though primarily 6 intended for underage s tu dents, also reache s of-age 7 reade rs. Th ere fore, the commercial spee ch regulated by 8 § 5-20-40(B)(3) concer ns lawful acti vity.

9 Id. at 589. 10 The Ninth Circuit has addres sed Central Hudson ’s “concer ns 11 lawful activi ty ” component specifically in the context of a day labor 12 solici tati on r e striction. Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 821 13 (9th Cir. 2013). In Valle, the government argued that the spee ch 14 concer ned unlawful a c ti vity because the prohibition only applied to 15 solici tati on “when associated with the unlawful activi ty of blocking 16 or impeding traffic. ” Id

. The Court rejected the argument, and held 17 plainti ffs met their burden of demonstrating that th eir solici tati on 18 concer ns lawfu l activi ty, “because it is legal to hire or be hired for 19 day labor.” Id. 20 In sum, the Fir s t A me ndment offers no protection to spee ch 21 that propose s a commercial transaction if consummati on of that 22 transaction would necessarily constitute an il legal a c t. However, if, 23 as here , there are plausible ways to complete a propose d transaction 24 lawful ly, spee ch proposing th a t transaction “concer ns lawful 25 activi ty” and is therefor e protec ted commercial speech. 26 The Town argues that because each propose d employment 27 transaction b y a day laborer whom the Ordinance targets would be 28 an under-the -table il legal employment arrange ment, in viol ation of

15No. 15-2914-cv

1 imm igration, tax, and labor laws, that solici tati on of th o s e 2 transactions does n o t and cannot “concer n lawful activi ty.” Br. of 3 Appellants at 47. 4 This argument lacks merit. It is without question that the 5 Ordinance could be app li e d to prohibit spee ch proposing no il legal 6 transaction. As the district court corre ctly noted:

7 [The Ordinance] extends to any indivi dual solici ting 8 employment positioned on proper ty “adja c e nt to” the 9 Town’s s treets and sidewalks – even if that indivi dual 10 does not enter the roadway and is a U.S. citi zen, who 11 appropr iately discloses all his income to f e d e r al, state 12 and local income tax authoriti es, and is th e only pers on 13 in th e imm ediate area on a li ghtly traveled road with 14 ample parking spaces for any solici ted vehicle to 15 lawful ly pull over. In other words, it r e aches spee ch 16 that is potential ly l awful.

17 12 8 F. Supp. 3d at 615. We are in accord, and, consequently, we 18 conclude that the Ordinance restr icts spee ch c oncern ing lawful 19 activi ty.

20 ii. The Town’s Asserted Interest is Substantial 21 The Town’s asser te d in te rest in the Ordinance “is to protect 22 th e h e alth, safety and welfare of motorists and pedes trians using 23 p ub li c r ights-of-way in the Town of Oyster Bay from the traffic a n d 24 o ther dangers brought about by stree t side solici tati on.” Dkt. 10

- c v 25 02262, No. 132-1 at 32 (S.D.N .Y. Dec. 1, 2014). This interest is 26 substantial under Central Hudson

. See, e.g. , Metromedia, Inc. v . City of 27 San Diego , 453 U.S. 490, 507 (1981).

16No. 15-2914-cv

1 iii. The Ordinance Directly Advances That Interest 2 The third step of Central Hudson concer ns the relationship 3 between the harm underlying the Tow n ’s interest and the means 4 ide ntifi ed by the Town to advance that interest. Greater New Orlea n s 5 Broad. Ass’n v. United States , 527 U .S. 173, 188 (1999) cautions that the 6 spee ch r e s tr icti on must “directly and materially advance[] the 7 asser te d government interest.” For good reaso n, this prong is 8 l a r g e l y u n c h a ll e n g e d b y W o r k p la c e . C l e a r l y , p r o h i b i t i n g 9 indivi duals from stopping traffic to seek employment furth e r s the 10 interest of traffic and pedes trian safety. Moreover, the Tow n o ffere d 11 evidence of the hazards caused by laborers ’ co n gregation at the 12 Forest Avenue sh a p e - u p site. Although the Ordinance may be 13 u n derinclusive, “in the commercial spee ch context, the Supre me 14 Court has made clear that underinclusiveness wil l n ot neces sarily 15 defeat a claim that a state inter est has been materially advanced.” 16 Anderson v. Treadwell, 294 F.3d 453, 463 (2d Cir. 2002).

17 iv. The Ordinance is Not Narrowly Drawn 18 Under Central Hudson ’s fourth prong, the Town bore the 19 burden of estab li s h in g that the Ordinance is “narro wly drawn to 20 further the interests serve d.” United States v. Caronia , 703 F. 3 d 1 4 9 , 21 167 (2d Cir. 2012). The Town did n o t h a v e to show that it chose the 22 least restr icti ve means of advancing its asser ted intere s ts , n or that 23 there was no conceivable alter native. Rather, its obligati on was to 24 establish that the regulation not burden substantially more spee ch 25 than neces sary to further its legitimate interests. Safelite Grp., Inc., 26 764 F.3d at 265; Clear Channel Outdoor, Inc. v. City of New York , 594 27 F.3d 94, 104 (2d Cir. 2010). 28 The district court corre ctly concluded that the Tow n f ail ed to 29 meet this obl ig a ti o n. It held that the Ordinance is “extre mely far17No. 15-2914-cv

1 reaching,” in that it prohibits spee ch that “pose[s ] [ n o ] th reat to 2 safety on the Town’s stree ts and sidewalks.” 128 F. Supp. 3d at 618. 3 It then found tha t th e Town had avail able to it “less burden some 4 alternatives avail ab le to addres s stree t and sidewalk safety,” citing 5 to numerous state and local public safety laws. Id. a t 6 1 9 –20. On 6 those bases , the district court concluded that the Ordinan ce fails 7 Central Hudson ’s fourth pr ong. We agre e. 8 The Ordinance does not require any connection between the 9 prohibited spee ch—solicitation of employment—and the asser ted 10 interest—traffic an d p e d e strian safety. There are numerous ways in 11 which an indivi dual, “adja c ent to any public right-of-way,” might 12 “attempt to stop [a] motor vehicle util izing said p u b li c right-of-way 13 for the purpose of soliciting employment” that would cause no 14 threat whatever to public safety. The d is tr ict court offere d sever al 15 apt examples:

16 [The Ordinance] reache s a lone pers on stand in g on the 17 sidewalk, away from the c u rb , who attempts to make 18 known to the occupants of vehicles his a vail abili ty for 19 work even if it does not result in a car stopping in traffic 20 o r double parking. It reache s children selling lemonade 21 at the end of a n e ig hb o r’s driveway (which is, after all, 22 “adjacent to” a public right of way), the veteran holding 23 a sign on a sidewalk stating “wil l work for foo d , ” and 24 stude n ts s ta nding on the side of a road advertising a 25 scho o l c a r wash. Even a pers on standing on the 26 sid e w a lk h olding a sign “looking for work - park at the 27 curb if you are interested in hiring me” would viol ate 28 the ordinance as it contains no specific intent element 29 and no re qu ir e me nt that the “attempt to stop” result in

18No. 15-2914-cv

1 traffic congestion, the obstruction of oth e r v ehicles, or 2 double parking.

3 Id. at 618. 4 The Town argues at the outset that this reaso n in g b y the 5 district court was faulty because it err oneously asses sed the impact 6 of the Ordinance on indi v id uals not befor e the court ( i.e. , day 7 laborers or lemonad e s ta nd vendors ). Specifically, the Town posits 8 that because Workplace only established organizationa l (rather than 9 r epre sentational) standing, it was err or for the district court to 10 e v a luate the impact of the Ordinance on anyone but Workplace as 11 an organization. See Br. of Appe ll a n ts at 6–7 (descr ibing this as a 12 “bait-and-switch”). The Town’s argument appears to depend on the 13 principle announced in Village of Hoffman Estates v. F l ip s i d e, Hoffman 14 Estates, Inc. , 455 U.S. 4 8 9, 497 (1982), that it “is irrelevant whether 15 [an] ordinance has an overb road scope encompassing protected 16 commercial spee ch of other pers ons, becau s e the overb readth 17 doctrine does n ot apply to com mercial speech.” 18 Th is a r gument fails because the Supre me Court has been clear 19 that overb readth challenges to commercial spee ch restr icti ons may 20 be b rought if the prohibition “reach[ es] some noncommercial 21 s p e e ch.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 46 9 , 4 8 2 22 (1989). Here , it is w ithout question that Workplace’s activi ties 23 impact ed by the Ordinance constitute core First Amendment 24 activi ty. See Vill. of Schaumburg v. Citizens f o r a Better Env’t. , 444 U.S. 25 6 2 0 , 6 3 2 ( 1 9 8 0 ) (basic First Amendment activ it ie s in c lu d e 26 “communi cation of informati on, the disseminati on and propagation 27 of views and ideas, and the advocacy of causes”); see also N.A.A.C.P. 28 v. State of Ala. ex rel. Patterson , 357 U.S. 449, 46 2 (1958) (First 29 Amendment activi ties of advocacy groups are partic u lar ly sensitive

19No. 15-2914-cv

1 “where a group espouse s dissident beliefs”). Becaus e o f the Town’s 2 restr icti on on commercial spee ch, Workplace’s ab il ity to engage in 3 those core First Amen d ment activi ties wil l be directly and adverse ly 4 impact ed in the ma n n e r s we previously descr ibed, supra 7–10. 5 Accordingly, the Ordinance clear ly “reach[ es] some noncommercial 6 spee ch,” a n d th e district court was free to asses s its broade r impact 7 on hypothetical indivi duals. And we agree with the d is tr ict court 3 8 that the Ordinance’s impact on the commer cial spee ch of those 9 hypothetical individual s is too broad to survive Central Hudson

. 10 We also f ind it signifi cant that the Ordinance does not apply 11 to the most common forms of solici tati o n involving the stopping of 12 vehicles on public rights of way, such as the hailing of a taxi or a 13 public bus. These exemption s strongly suggest that in the great 14 majority of situatio n s , stopping a vehicle on a public right of way 15 creates no inheren t safety issue. Entirely prohibiti n g o ne spee ch16 based subse t of an activi ty that is not inheren tly disruptive raises the 17 question whether the Town’s actual moti vation was to preve nt 18 spee ch having a particular c o n te nt, rather than addres s an actual 19 traffic an d pedes trian congestion issue. See Glickman v. Wileman Bros. 20 & Elliott, Inc. , 521 U.S. 457, 493 (1 9 9 7 ) ( Souter, J. dissenting) 21 (“‘[E]xemptions and inconsistencies’ in alcohol labe li n g ban ‘bring 22 into question the purpose of the

. . . b a n, ’ such that it does not 23 survive the Central H u d son test”) (quoting Rubin v. Coors Brewing Co. , 24 514 U.S. 476, 489 (1995)); The F lorida Star v. B.J.F. , 491 U.S. 524, 540 25 (1989) (“[T]he facial underinclusiveness of § 794.03 r a is e s serious

T ha t the Ordi nan ce adv ersel y i mpacts certai n cor e Fir st Amendment activity do es not 3 remo v e the Ordi nan ce fro m the l ess-stri ct review of our commerc i al speech juri sprudence. A commerc i al speech p ro hib ition th a t le a ds t o c oin c id ent “restric tio ns on expressive speech,” i s stil l ass essed under commerc i al speech do ctri ne i f the restri cti ons on expressio n “pro perl y are chara cteriz ed a s in ci dental to the pri mary congre ssio nal purpo se of ” the pro hibiti on. S.F. Arts & A th letics, Inc. v. U. S. Oly mp ic Comm

. , 4 83 U. S. 52 2, 53 6- 37(1 98 7)

. 20No. 15-2914-cv

1 doubts about whether Florida is, in fact, serving, with this statute, 2 the signifi cant interests which appellee invokes.”). And, as 3 discussed below, it is relevant to the “narro wly dra w n ” a n a lysis if 4 the Town was principally moti vated in restr icting a particular 5 category of spee ch, rather than the “traffic safety” interests it has 6 asser ted. 7 Th e Town resp onds by arguing that the Ordinance is 8 n a rrowly drawn despite its broad exemptions because th e 9 Ordinance is a im e d at the specific situati on at the Forest Avenue 10 shape-up site, which, unli ke a singular ta xi hailer for example, 11 involves large numbers o f p e o p le gathered in groups to stop cars. 12 But the Ordinance does not li mit solici tati on of emplo y me nt when 13 done in large groups, it b r o a d ly extends to all types of solici tati on. 14 Theref ore, the Ordinance is not “nar rowly drawn.” 15 F in all y, it is an “important consideration” to the “narro wly 16 drawn” requirement if th e r e existed “numerous and obvious less17 burden some alternatives to the restr icti on on commercial s p e e ch” 18 Florida Bar v. Went For It, Inc. , 515 U.S. 6 1 8 , 6 3 2 ( 1995). The district 19 court cited to “a number of less burden some alternat iv es to addres s 20 stree t and sidewalk safety.” 128 F. Supp. 3d at 619. As one notable 21 example, S e c ti o n 173-4 of the Town’s Code prohibits a “solici tor” 22 from (i) “occupy[ing] any station a r y lo c ation in any stree t or any 23 public proper ty”; or (ii) “solici t[ing] in a n y congested place or an 24 area when or wh e re such activi ty may impede or inconvenience the 25 publi c o r a d d to the congestion of such place or area.” Section 173-4 26 is probative not only because it is a n e x ample of a less content-base d 27 tool th a n th e Ordinance to stop the precise harm the Town claim s 28 moti vated th e O rdinance. It also demonstrates how the Town could 29 have drawn the Ordin a n c e s u c h that it would advance its asser ted 30 interest while li miting the impact on constituti onally prote cted

21No. 15-2914-cv

1 spee ch by tying the prohibition to a manifestati on of the h a rm 2 sought to be avoided. 3 The Town argues that the regulations identifi ed by th e d istrict 4 court do “not addres s the full panoply of dangers tha t h a v e arisen 5 and are concom it ant with a bustling stree t-side labor market.” Br. of 6 Appellants at 60. Even assuming, arguen d o , this to be true, it is of no 7 moment. The Ordinance does not prohibit a “bus tl in g stree t-side 8 labor market”; it broadly prohibits any atte mp t to s top a vehicle to 9 solici t employm ent anywher e in Oyster Bay irr espe ctive of it s effec t. 10 It is theref ore clear that the Ordinance simply adds a spee ch11 b a s e d c o mpon ent to an already existing prohibition. This is another 12 indication that the principal interest the Town aimed to serve was 13 the suppre ssion of that particular spee ch, rather than the interests in 14 traffic and pedes trian safety th at it asser ted befor e the district court. 15 We refuse to conclude that the Ordinance is narro wly drawn where 16 it broadly i mpacts protected spe ech and only n arrowly addres ses the 17 Town’s stated interest. In Edenfeld v. Fane, 507 U.S. 761, 768 (1993), 18 the Court cautioned that under Cen t ral Hudson , courts should not 19 “turn away if it appears that the stated interes ts a r e not the actual 20 interests se rved b y the res tricti on.” 21 For these reaso ns, we co n c lu d e that the district court corre ctly 22 held that the Ordinance is an unconstituti onal restr icti on of 23 commercialspee ch in viol ation of the First Amendment. 24 Finally, we note that the dissent f aults us for affirming the 25 invali dation of th e entire Ordinance, including subdivision D, rather 26 than sever ing subdivision C. Dissenting op. at 15–19. This 27 contention is the exclusive c o n c e rn of our dissenting colleague, not 28 of the parties. Plaintiffs have sought invali d a ti o n of the entire 29 Ordinance since the inception of this li tigation. D uring the seven 30 years that this li tigation has been p e n d ing, the Town has never 22No. 15-2914-cv

1 raised the prospe ct of sev e ring the Ordinance, not in its pleadings, 2 not during extens ive s umm ary judgment pr oceedings, and not in the 3 two ap peals taken to this Court. If the Town wante d sever ance as an 4 alte r n ative remedy it, pres umably, would have said so. In any 5 event, the law is w ell settled that arguments as to sever abili ty are 6 waived where , as here , a party fails to raise th e is s u e . S ee, e.g. , 7 Redondo Bea c h , 657 F.3d at 951 n.10; Bishop v. Smith , 760 F.3d 1070, 8 1095 (10th Cir. 2014); Loza no v. City of Hazelton , 620 F.3d 170, 182 & 9 n.13 (3d C ir

. 2 0 10), rev’d on irrelevant grounds , 563 U.S. 1030 (2011); 10 Telecomm’s Reg. Bd. of Puerto Rico v . C TIA-Wireless Ass’n , 752 F.3d 60, 11 62 n.2 (1st Cir. 2014).

12 CONCLUSION

13 The judgment of the district court i s AFFIRME D

.

23D E N N I S J A C O B S , Circuit Judge, dissenting:

I respectfully dissent. This case was br ought by two plaintiffs; one is an organization that seems not to exist excep t as a vehicle for this li tigation; the other is an organ izati on that claim s standing by casting some of its own elective (and slight) conduct as injury, and by spe culating about future harm that it i s unlikely to incur. I woul d theref ore or der dismissal for lack of standing. Beyond that (if one can get beyond that), the injuncti on enter ed by the district court is more bro ad than the First Amendment viol ation found can justi fy, and is obviously formul ated to remedy harms that were not found and were in any event not infli cted on these plainti ffs. The mess is unusually thi ck. An Ordinance of the Town of Oyster Bay b ars pe destrians fr om soli citing work from are as adjacent to a roadway and bar s drivers from pull ing over to pick them up. The compl aint al leges that the Ordinance , which seems clearly aimed at condi tions created by the recr uitm ent of day laborer s, violates rights of free spee ch, equal protection, and due proces s. The district court found that the bar on s olici tati on violates the First Amendment and de clined to reach other claim ed grounds for re li ef. Unaccountably, however, the district court enjoinedthe enfor cement of the en tire Ordinance—including i ts regulation of drivers,

which has no First Amendment ramification. The majority on appeal affirms the injuncti on in whole, and finds jurisdiction on the basis that one of the organizations had standing (without reaching the standing of the othe r). Because I woul d dismi ss for lack of standing, I reach the standing questi on as to both plainti ff organizations. I According to the complaint, plaintiff Centro de la Comunidad Hi spana de Locust Vall ey (“Ce ntro”) is an “unincorpor ated membersh ip organizati on.” That is a boast. It has no organization to speak of: no charter, no bylaws, no bank accounts, no funding, no exp enditures. And it seems to have n o members: anybody who sho ws up at a meeting (i f there are any) is dee med a member; the only member identifi ed in the rec ord is one Luz Torr es, who is the chairpe rson of whatever it is; and she con ceded at depos iti on that “we don’t have member ship.” This supposed or ganizati on was formed (accor ding to Torres) at a communi ty meeting a few months after the Town of Oyster Bay adopted the challenged Ordinance. Although Torre s says that Ce ntro has s ome other gener ali zed re asons to ex ist, she admits thatthe Ordinance was “the principal

2reaso n” it was formed. App. 529. That is easily dem onstrated. Ther e has b een

for twenty year s an organization of simi lar name (Cen tro Cultural Hispano de Oyster Bay y Ve cindades), of which Torre s was a co-founder ; Torres propose d that it sue the Town over the Ordinance ; and only after at least some portion of the boar d disapproved did Torre s think of creating a new organization. A 1 document memorial izing a communi ty meeting shortly before (ne w) Centr o’s supposed fo rmation includes bullet point s of items discussed: the first bullet point is “Create an or ganizati on that is respons ible and wil l support us”; and the third bull et point is “Fi le the lawsuit .” (The secon d and fourth agenda items are “Be united to reach our goals” and “Attend Mee tings.”) Aside from Torre s, 2 attendees of the formationalmeeting are descr ibed in the recor d only generically, and prominently among them are “the lawyers.” App. 541. The r ecord doe s not

It is unclear whether the boar d formally declined to sue the Town or if T or res 1 vo luntarily wi thdrew the pr oposal after encounterin g oppo si tion. Reasons for declining are notstated inthe re cord, tho ugh they might be inferred fro m the fact that the or gani zation hasa long-standing (and apparently o ngoing) relations hi p wi th the Town, whi ch grants i t free use of faci li tiesand prov i des funds for i ts Engli sh c lass es and youth prog rams. Thi s docum ent and the por tion of the deposi tion transcri pt thatinclu des the 2 admi ssi on that C entro has no membershi p are fi led under seal aspart o f a “Confi denti al Appendi x.” The reason for confi denti ali ty is obs cure, and su ppressi on i s contrary to t he publi c intere st. Confi denti ali ty was not r equi red t o pre serve t he privacy of memb ers, who are notli sted i f indeed they ex i st. 3say what the lawyers wer e doing there, b ut they were e vidently not helping

Cen tro to incorporate, s ince it i s unincorporate d. Everything supports the inference that Centro is a spe cial-purpose li tigation vehicle ,created to br ing this l awsuit. I t is unclear whether it has done anything else in the seven ye ars since it filed the complaint. This pretext doe s 3 not satisfy Articl e III, which requires that “the decision to seek [judicial ] review . . . be placed in the hands of those who have a direct stake in the outcome,” and not “in the hands of conce rned b ystanders , who willuse it sim ply as a vehicle for the vindication of val ue interests.” Diamond v. Charles , 476 U.S. 54, 62 (1986) (internal citation and quot ation marks omi tted). Centr o cannot suffer actual or thre atened injury if it exists only as the vehicle for this liti gation, or as the alter-e go of some concer ned bys tander. II The secon d plainti ff, The Workplace Project, was app arently enlisted as a hedge against the court’s r ealizati on that Centr o lacks standing. Workplace is a real organization that has existence and function outsi de this li tigation. But i t is not based in the Town of Oys ter Bay; it is in the Town of Hempstead, which is (of A Goog le search for “Centr o de la Comuni dad Hi spana de Locu st Valley” 3 ret urns about 250 results, all of which pert ain to thi s li tigati on. 4course) n ot subject to the challenged Ordinance. It claim s neve rtheless that the

scope of its mission encompasses all of Long Island, and it asserts standing on three gr ounds. Of the thr ee, the district court pre mised standing solelyon the idea that the Ordinance might be (err oneously) enfor ced against Workplace or its agents if its organizing and counseling activi ties are mistaken for roads ide employment soli citati on. The district court did not consider the other two other injuries clai med by Workplace as a pr etext for s tanding: that the Or dinance harms its mi ssion to serve day laborers by either disper sing them or reducing their number; and that its effort to fight the Ordinance diver ts reso urces fr om it s other activiti es. The majority is convinced that each of these thr ee pur ported injuries is real and independently sufficient to confer standing. But none of them constitutes “an ‘injury in fact’—an invasion of a legally protected intere st which is (a) concrete an d particularized, and (b) actual or im minent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citati on and quotati on marks re moved). The risk of mistaken enforce ment against the organizati on’s advocates is a fine example of a conjectural and hypothetical harm—I suppose it coul d

5materiali ze, but it has not, and it m ight never. That is no “actual or im minent”

injury. 4 The suppose d interfere nce with the organizational m ission of serving day laborers is conjectural, vague, and generalized. Wors e, if it were sufficient, a pop-up organization could gin up standing by alleging a mission to oppose any law i t wished to chall enge. The majority is persuaded that by dispe rsing Oyster Bay’s day laborer s, the Or dinance willmake it harder for Wor kplace to meet wit h them; but this woul d be an indirect and r emote consequence, e ven assuming that Workplace oper ates in the Town of Oyster B ay. These ar guments failto establish “the irreducible constitutionalmini mumof standing.” Id. The argument that the Ordinance injures Workplace by diverting its

reso urces fr om other activities relies on a line of cases b eginning with Havens Realty Corp. v. Coleman , 455 U.S. 363 (1982), and culminating in Nnebe v. Daus , 644 F.3d 147 (2d Cir. 2011). The thr ust of those case s (as to organizational standing)

To show i mminence, the major i ty cites Davis v. F.E.C. , 554 U.S. 724 (2008), whi ch 4 “held that a politi cal c andi date faced injury suffi ci ently imm inent to challen ge campai gn di scl osure re qui rements by si mply declaring hi s intention to r un for offi ce and to spend more than the amount for whi ch di scl osure was requi red.” O p. 8. The candi date in Davis thus challenged a law that would apply to hi m, wh ereas here, a law that do es not apply to the plainti ff i s ch allenged becaus e the plainti ff thinks i t mi ght be enforced agains t it by mistake . 6is that even the slight diversion of resour ces to re medy some harm or to fight

some harmful conduct or policy can constitute an injury-in-fact suffi cient to confer standing if the inj ury is perce ptible, concrete, and de monstrable. In those cases, h owever, the organizationalplainti ff did not put i tself in the way of harm as a pre text to achieve standing; rather, the challenged conduct or policy came unbidden to the organizational pl ainti ff, and diverted its lim ited resource s. The distinction raises the pr oblem of “manufactured” standing that i s identified by the court in Nnebe . Synthetic standing was not found in that case; but it i s pres ent in this one, and the majority therefore distorts rather than applies those

cases. In Havens Realty, the organizational pl ainti ff provided housing counse ling services to homeseeke rs of limi ted means, and investigated complaints of discrimination. The Supreme C ourt held that if the defe ndants’ alleged racialsteer ing practices “perce ptibly i mpaired” the organization’s abili ty to provide its counseling and refe rral ser vices, then “ther e can be no question that the organization has suffere d injury in fact. Such concrete and de monstrable injury to the organization’s activi ties—with the conse quent drain on the organization’s

7reso urces—con stitutes far more than simply a setback to the organization’s

abstract social interests.” 455 U.S. at 379 (citation omi tted). In Nnebe, the organizational pl ainti ff was a taxi-drivers’ union; it had standing to chall enge a license-s uspension policy of the Taxi and Lim ousine Commission because it counseled those of its own members who were potentially affected, helped the m obtain l awyers, an d impressed upon the lawyers the he ightened stakes that re sulted from the policy. 644 F.3d at 157. We

reaso ned that the union neede d to all ocate res ources to ass ist i ts members onc e the city initi ated proce edings against them, and that need—which the union did not invite, choose , or pro voke—cre ated an injury sufficient for standing. The organizational pl ainti ffs in those case s had their activiti es pe rceptibly impai red b y the conduct or policy they challenged, and they diverted at least some of their lim ited resource s to remedy the h arm that the conduct or policy imposed. That i s, the challenged conduct or po li cy arrived at the or ganizati on’s door and e ither created new work for it or burdene d the work it was already doing. In this case, the only evidence that the Or dinance touched Workplace in any way is: the testimony of tw o people who worke d for Workp lace and who

8believe that some third employee visi ted day laborer s in Oyster Bay at some time

in the past, though they are vague ab out when and wher e and for wh at purpose, App. 937–38, 944–51; that some Workplace per sonnel attended a r all y against the Ordinance, id. 947–48; and that Workplace “had to put some tim e into finding out about the ordinance” an d tried “to support [Ce ntro]” and “work onthat issue to some degre e,” id. 956. None of that is a cognizable injury to Workplace. The crucial question is whether any of it requi red cur tail ing Workplace’s normal work; but as to that, the testimony was “I don’t remember.” Id. 957. The Ordinance may repre sent “a setback to [Workplace]’s abstract social interests,” Havens Realty, 455 U.S. at 379, but mere organ izati onal oppositi on does n ot constitute organizational injury. Even if Workplace invokes the “pe rceptible impai rment” standard of Havens Realty and Nnebe, those case s do not relieve plaintiffs of the constitutional requirement of showing injury that i s “concre te and particularized” and “actual or imminent.” Lujan , 504 U.S. at 560. In sum, the maj ority opini on pre mises standing on purported organizationalinjury that i s speculative and gener ali zed, and—to the ex tent that it exists—both elective and negligible. Workplace has n ot shown that the

9Ordinance inflicts unbidden injury on it as an organization, and it therefore does not have standing as an or ganizati on to bring this li tigation. III This case, of course , is not about inju ry to any organization. To the contrary, the complaint affirmati vely all eges that this is “a civi l rights acti on about the ability of predominantly Latino, imm igrant day laborers to e xer cise their right to soli cit work on the stree ts and sidewalks of their towns and vill ages withoutfear of b eing targeted be cause of their r ace and national origin.” App. 115. In other circuits, an organization composed of members with standing (such as day laborer s in Oyster Bay) can itself have s tanding in cases under the Civil Rights Act; but the pr ecede nt of this Circuit forecloses such r epre sentational standing. Since we (and appar ently we alone) preve nt repr esen tati onal standing, we require that in such cases the organization show injury to i tself as an organization. The result has bee n an er osion over time of what constitutes institutionalinjury as we try to replicate repr esen tati onal standing by other means. This distortion explains what has happened in this case, in which “perce ptible” i mpairment i s treated mer ely as the opposite of “imperceptible,” and in which we dispense altogether with the constitu tionalrequirement of

10injury that i s both “concr ete” and “demonstr able,” and either “actual” or

“imm inent.” The rule in this Circuit—that an organization lacks standing t o sue under the Civil Ri ghts Act for violati ons of the r ights of it s members —was adopted over for ty years ago in a case that may have outlived i ts usefulness. In Aguayo v. Richardson , 473 F.2d 1090 (2d Cir. 1973), this court reas oned that the statute “confer s a cause of action on ‘any citizen of the United States or othe r per son within the jurisdicti on there of’ who has be en depr ived under color of state law ‘of any rights, privileges, or immu niti es se cured by the Constitution and l aws,’” and that “[n]either this language nor the history” of the statute suggests that organizations can sue in the place of other s. Id. at 1099. The court cited Hague v. CIO, 307 U.S. 496 (1939), in which the Supre me Court dismissed organizational plainti ffs (while affirming a holding in favor of individualplainti ffs) on the ground that the Privil eges an d Immuniti es C lause, 307 U.S. at 514, and the liberty guarantee of the Due Proce ss C lause, id. at 527, apply only t o “natural, not artifici al, persons .” Id.

11Haguethus suggests that organizations cannot sue on the ir own behalf

(because they lack the rights they would seek to vindicat e); but it says nothing 5 about whether they can stand in the place of their member s. And two years after Aguayo , the Supre me Court obs erve d (albeit in dicta) that “[e]ven in the absen ce of injury to i tself, an association may have standing solely as the re pres entative of its members” if its m embers are har med. Warth v. Seldin , 422 U.S. 490, 511 (1975). The Supr eme Cour t lat er cited Warth when it formulat ed a three -part test for this “repr esen tati onal” or “associational” standing:

an association has standing to bring suit on behalf of its member s when: (a) its members would otherwise h ave standing to sue in their own right; (b) the intere sts it seeks to protec t are ger mane to the organization’s purpose; and ( c) neither the c lai m asserted n or the relief requested r equires the participati on of indivi dual m embers in the lawsuit

. Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 343 (1977). Did Warth and Huntabrogate Aguayo ? Huntwas not a § 1983 case, though it reli ed on Warth , which was; and the re levant portion of Warth is dicta. Never theless, se veral of our sister circuits, unburdened b y Aguayo , have applied the Hunttest for re pres entational standing in § 1983 cases. See, e.g. , Nat’l Fed’n of The Supreme Courthas lately tak en a more ex pansive v i ew of the rights of 5 art i fi ci al persons. See, e.g. , Burwell v. Hobby Lobby Sto res, Inc. , 134 S. Ct . 2751 (2014); Citizens Un ited v. FEC, 558 U.S. 310 (2010). 12Blind of Mo. v. Cross , 184 F.3d 973, 981 (8th Cir. 1999); Retired Chi. Police Ass’n v.

City of Chicago , 7 F.3d 584, 600–07 (7th Cir. 1993); Contractors Ass’n of E. Pa., Inc. v. City of Philadelphia, 945 F.2d 1260, 1264–66 (3d Cir. 1991); Md. Highways Contractors Ass’n, Inc. v. State of Maryland, 933 F.2d 1246, 1251–53 (4th Cir. 1991); Associated Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1405–09 (9th Cir. 1991). The Fifth and Sixth Circuits have ex pres sly held that organizations possess standing to sue under § 1983 for viol ations of the rights of their members in such circumstances

. See Church of Scientology v. Cazares , 638 F.2d 1272, 1276–77 (5th Cir. 1981); Memphis Am. Fed’n of Teachers v. Board of Educ. , 534 F.2d 699 (6th Cir. 1976). 6 This Circuit has adhered to Aguayo without ever expr essly considering the impactof Warth or Hunt. See League of Women Voters v. Nassau County Board of Supervisors , 737 F.2d 155, 160–61 (2d Cir. 1984) (“This Circuit has res tricted organizationalstanding under § 1983 by interp reting the rights it secures to be pers onal to those purporte dly injured. . . . Ne cessar il y, we adher e to our prior

Addi tionally, one di stric t courtin thi s ci rcui t held (in a deci si on that was 6 evidently never appealed) that “[t]he premi ses u pon whi ch the Aguayo deci si on was based . . . are no longer viab le in li ght o f” Warth and Hun t. Huertas v. E. River Hous. Corp. , 81 F.R.D. 641, 651 (S.D.N.Y. 1979) (Carter , J. ). 13decisions . . . .”). Nnebeli kewise followed Aguayo (this ti me over the objection

that it had bee n cast into doubt by Warth ), obser ving in a footnote that we reaf firmed the Aguayo rule in League of Women Voters nine years after Warth and have not since r econsider ed it. Accordingly, we are bound by the implicit determination of prior pane ls that the rule survives Warth ‘untilsuch time as [our prior decisions] ar e over ruled either by an e n banc pan el of our Court or by the Supr eme Cour t.’ 644 F.3d at 156 n.5 (quoting United States v. Wilkerson , 361 F.3d 717, 732 (2d Cir. 2004)) (emphasis added). We continue to rely on that “impl icit determination.” Nnebe posits that we await Second Circuit in banc review to overrr ule Aguayo (or, pr esumably, even to consider for the first tim e exp li citly whether its rule is abrogated by Warth and Hunt ). But that may be a vain hope given the des uetude of our in banc pr actice. In the meantim e, our indulgence of increas ingly tenuous and pr etextual clai ms of injury to organizati ons themselves n ow threatens to swall ow Article I II li mit ations: the majority opinion holds, in esse nce, that an organization can achieve standing to challenge a law relevant to i ts mission by “all ocating

reso urces” to learn ing about the law and att ending a protest r ally. The plainti ffs pre serve by footnote the ar gument that they have repr esen tati onal standing, noting that “ Aguayo is contradicted by subse quent

14Supre me Court authority . . . and is inconsistent with the principles under lying

§ 1983.” Appellee Br. 51 n.16. They may be right about Aguayo , and a tim e may come when we r ethink organizationalstanding, or when the Supre me Court does an intervention. IV Since on this rec ord no plaintiff has shown standing, I woul d go no further

. The majority does go further, howe ver; and while there is appreciable merit to it s analysis, it

affirms a remedy consider ably broader than that analysis can support. The consistent focus of the majority opinion i s the First Amendment rights of people soliciting work while standing at the roadside. The spe akers wh ose rights are at issue ar e the peo ple who are s aying (as the majorityputs it), “hi re me,” Op. 9, and the re striction on that com mercial speech is the pr emise for all that foll ows (right up to the examples of a lemonade stand and the ve teran who wil l work for food), Op. 16–17. This, it seems to me, is sound as far as it goes. Even the “cond uct component” of attempting to stop vehicles is esse ntial ly expr essive since all a pedestr ian can do from the lawful v antage of a sidewalk is signal avai labil ity t o passing drivers . The per suasive force of this analysis has bear ing on subdivisi on C of the Ordinance, which re stricts the conduct of

15pers ons adjacent to the roads ide. It does not, however, s upport an injunction

against enforcemen t of the Ordinance as a whole, which in subdivi sion D regulates traffic, and in particular the conduct of the truck-drivers, wh o are not engaged in spe ech. “[T]he normal rule [is] that partial, rather than facial, invalidation is the required course ,” Brockett v. Spokane Arcades, Inc. , 472 U.S. 491, 504 (1985), and we theref ore “s hould refrain from invalidating an entire statute when only portions of it are objectionable.” Nat’l Advert. Co. v. Town of Niagara , 942 F.2d 145, 148 (2d Cir. 1991). Se verance is a questi on of state law, and New York follows the standard des cribed by Jus tice Cardozo:

The principle of divi sion is not a principl e of form. It is a principle of function. The question is in every case whe ther the Legislature, if partialinvali dity had been for esee n, would have wished the s tatute to be enforce d with the inval id part exscinded, o r rejected altogether. The ans wer must be r eached pragmatical ly, by the exer cise of good sens e and sound judgment, by considering how the statutory rule wil l functi on if the knife is l aid to the branch, instead of at the r oots. People ex rel. Alpha Portland Cement Co. v. Knapp , 230 N.Y. 48, 60 (1920). The Ordinance con tains separate commands, se parately lettered, and the s eparate command of subdivi sion D can ope rate indepen dently. Itcan hardly be doub ted

16that the Town would wi sh to enfor ce this traffic rule: as the majority opinion

recognizes, the Town’s asser ted interest is substantial, Op. 14, and the Ordinance directly advances that interest, Op. 15. According to the Town, the goal of the Ordinance is to fix the traffic and safety prob lems that arise when trucks stop along a roadway to pick up day laborers . This problem is addresse d directly by subdivisi on D, which applies to drivers on ly. And since driving i s not spee ch, subdivision D does not bur den spee ch—and it raises no thorn y problems (arguab ly raised by subdivision C) such as the unce rtain scope of pr oscribed co nduct or discriminat ory enfor cement. This is ful ly consistent with the majority’s analysi s: the conclusion that the Ordinance is overbroad would be str engthene d by the obs ervation that the Town can advance its important governmental purpose just as well without the offending subse ction C. True, the par ties have not argued or briefed s ever abili ty, but severan ce is unli ke ordinary de fense s, which are ab andoned unless raised; a se verance issue arises only when a co urt finds a statutory infi rmity and must craft a remedy, and the issue inhere s in the judici al act of ordering a remedy. S ua sponte invocation of this prudential rule m ay be a case -by-case d ecision, but when a plainti ff seeks

17an injuncti on more br oad than nece ssary to r emedy the wrong that is found, it is

prudent to tailor the injunction (or revisit it) even if the defendant imprudently made all -or-nothing arguments. Waiver is a prudential doctrine, and its invocation here would conflict with the “general rule [that] a court should refr ain from inval idating an entire statute when only portions of it are objectionable.” Nat’l Advert. Co. , 942 F.2d at 148. “Our right to destroy is bounde d by the limi ts of neces sity. Our duty i s to save unless in saving we pe rver t.” Alpha Portland Cement Co. , 230 N.Y. at 62–63. The Supre me Court has instructed that, or dinarily, “partial, rather than facial, invali dation i s the requiredcourse.” Brockett, 472 U.S. at 504 (emphasis added). The appellees’ br ief in Brockettargued that the appellants should be pr ecluded from raising sever abili ty because the y fail ed to raise it below ( Brockett, Appellees Br. at 44 (1984 WL 565782)); yet Brockettdid not consider waiver, and he ld that “sever abili ty is no obstacle to partialinvali dation, which i s the cours e the C ourt of Appeals should have pursued .” 472 U.S. at 507 (emphasis added). 7 The Supreme Court ’s deci si on in Legal Ser vices C orp. v. Velazq uez, 531 U.S. 533 7 (2001), i s not to the contr ary . In that case, the Se cond Ci rcui t had invali dated only a port i on of a statute , and bec ause the partiesdi d not dis cus s the severabili ty deter minati on at the Supreme Co urt, that Cour t “inthe exe rci se of [i ts] di screti on and prudentialjudgment . . . decline[d] to address i t.” Id. at 549. There isa di fference, however, between an exercis e of di screti on and prudence that leaves inplace part of a law, and one that invali dates more o f a law than n ecess ary . 18If some plaintiff had standing, and if the majority were corr ect at every

other point in its opini on, the pro per r emedy would be sever ance and an injuncti on lim ited to subdivi sion C of the Or dinance. Of cours e, the overbre adth of the injuncti on her e is no drafting err or. The tran spare nt purpose of seeking an injuncti on to protect the e xpre ssive rights of day laborer s is to enable the ope nair traffic in day l abor; and the complaint seeks to vindi cate the Equal P rotection and Due Pro cess r ights of those day laborer s against what the plaintiffs all ege is the discriminatory motive of the Town. The enjoining of subsection C—which is the approp riate remedy for the First Amendment infirmi ty found—would be an insuffici ent means to those b roader ends. Howe ver, the district court did not rule on the Equal Protecti on or D ue Process claim s, and the majority now affirms an injuncti on suited to clai ms that were neve r re ached.

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