FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VALLE DEL SOL INCORPORATED;

C.M., a minor; JOSE ANGEL

VARGAS; COALICION DE DERECHOS

HUMANOS; UNITED FOOD AND

COMMERCIAL WORKERS

INTERNATIONAL UNION; BORDER

ACTION NETWORK; JIM SHEE; LUZ

SANTIAGO; ARIZONA SOUTH ASIANS

FOR SAFE FAMILIES; JAPANESE

AMERICAN CITIZENS LEAGUE;

LOCAL 5 SERVICE EMPLOYEES

INTERNATIONAL UNION; SOUTHSIDE

PRESBYTERIAN CHURCH; MUSLIM

AMERICAN SOCIETY; TONATIERRA

COMMUNITY DEVELOPMENT

INSTITUTE; ASIAN CHAMBER OF

COMMERCE OF ARIZONA; SERVICE

EMPLOYEES INTERNATIONAL UNION;

ARIZONA HISPANIC CHAMBER OF

COMMERCE; PEDRO ESPINOZA;

MAURA CASTILLO; MARIA

MORALES,

Plaintiffs-Appellees,

v.

MICHAEL B. WHITING; EDWARD G.

RHEINHEIMER; DAVID W. ROZEMA;

DAISY FLORES; KENNY ANGLE;

No. 12-15688

D.C. No.

2:10-cv-01061-

SRB 

OPINION
2 VALLE DEL SOL V. WHITING

DEREK D. RAPIER; SAM VEDERMAN;

RICHARD M. ROMLEY; MATTHEW J.

SMITH; BRADLEY CARLYON;

BARBARA LAWALL; JAMES P.

WALSH; GEORGE SILVA; SHILA S.

POLK; JON R. SMITH, County

Attorneys in their official capacities;

JOSEPH DEDMAN, JR.; LARRY A.

DEVER; BILL PRIBIL; JOHN R.

ARMER; PRESTON J. ALLRED;

STEVEN N. TUCKER; DONALD

LOWERY; JOSEPH M. ARPAIO; TOM

SHEAHAN; KELLY CLARK;

CLARENCE W. DUPNIK; PAUL R.

BABEU; TONY ESTRADA; STEVE

WAUGH; RALPH OGDEN, County

Sheriffs, in their official capacities,

Defendants,

and

STATE OF ARIZONA; JANICE K.

BREWER,

Intervenor-Defendants-Appellants.

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted

October 17, 2012—San Francisco, California
VALLE DEL SOL V. WHITING 3

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

Filed March 4, 2013

Before: Raymond C. Fisher, Richard C. Tallman and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Fisher

SUMMARY

*

Civil Rights

The panel affirmed the district court’s grant of a

preliminary injunction barring the enforcement of two

provisions in Arizona’s Senate Bill 1070, which make it

unlawful for a motor vehicle occupant to hire or attempt to

hire a person for work at another location from a stopped car

that impedes traffic, or for a person to be hired in such a

manner. 

The panel held that the district court correctly determined

that, though Arizona has a significant government interest in

promoting traffic safety, the day labor provisions failed the

requirement set forth in Central Hudson Gas & Electric

Corp. v. Public Service Commission of New York, 447 U.S.

557, 566 (1980), that restrictions on commercial speech be no

more extensive than necessary to serve that interest. The

panel held that the district court did not abuse its discretion in

concluding that the plaintiffs were likely to succeed on the
4 VALLE DEL SOL V. WHITING

merits and that the other requirements for a preliminary

injunction were satisfied.

COUNSEL

John J. Bouma, Robert A. Henry (argued) and Kelly A.

Kszywienski, Snell & Wilmer L.L.P., Phoenix, Arizona;

Joseph Sciarrotta, Jr., Office of Governor Janice K. Brewer,

Phoenix, Arizona, for Appellants.

Thomas C. Horne, Attorney General, Michael Tryon, Senior

Litigation Counsel, and Evan Hiller, Assistant Attorney

General, Phoenix, Arizona, for Appellant State of Arizona.

Thomas A. Saenz, Victor Viramontes (argued) and Nicholás

Espíritu, Mexican American Legal Defense and Educational

Fund, Los Angeles, California; Omar C. Jadwat and Andre

Segura, American Civil Liberties Union Foundation

Immigrants’ Rights Project, New York, New York; Linton

Joaquin, Karen C. Tumlin, Nora A. Preciado, Melissa S.

Keaney and Álvaro M. Huerta, National Immigration Law

Center, Los Angeles, California; Nina Perales, Mexican

American Legal Defense and Educational Fund, San Antonio,

Texas; Chris Newman and Lisa Kung, National Day Labor

Organizing Network, Los Angeles, California; Marita

Etcubañez and Jessica Chia, Asian American Justice Center,

Washington, D.C.; Cecillia D. Wang, American Civil

Liberties Union Foundation Immigrants’ Rights Project, San

Francisco, California; Daniel J. Pochoda and James Duff

Lyall, ACLU Foundation of Arizona, Phoenix, Arizona;

Daniel R. Ortega, Ortega Law Firm, P.C., Phoenix, Arizona;
VALLE DEL SOL V. WHITING 5

Yungsuhn Park, Connie Choi and Carmina Ocampo, Asian

Pacific American Legal Center, a member of Asian American

Center for Advancing Justice, Los Angeles, California, for

Appellees.

Aaron Leiderman, Munger, Tolles & Olson LLP, San

Francisco, California; Bradley S. Phillips, Joseph J. Ybarra,

Benjamin J. Maro, Lika C. Miyake and Margaret G. Ziegler,

Munger, Tolles & Olson LLP, Los Angeles, California, for all

Appellees except Maria Morales and Service Employees

International Union, Service Employees International Union,

Local 5, United Food and Commercial Workers International

Union and Japanese American Citizens League.

Stephen P. Berzon and Jonathan Weissglass, Altshuler

Berzon LLP, San Francisco, California, for Appellees Service

Employees International Union, Service Employees

International Union, Local 5 and United Food and

Commercial Workers International Union. 

OPINION

FISHER, Circuit Judge:

Two provisions in Arizona’s Senate Bill 1070 make it

unlawful for a motor vehicle occupant to hire or attempt to

hire a person for work at another location from a stopped car

that impedes traffic, or for a person to be hired in such a

manner. These provisions raise First Amendment concerns

because they restrict and penalize the commercial speech of

day laborers and those who would hire them. Arizona

defends the provisions as traffic safety measures, designed to

promote the safe and orderly flow of traffic. We
6 VALLE DEL SOL V. WHITING

 S.B. 1070 contains other provisions that, although they were 1

challenged in the same underlying district court action, are not at issue in

this appeal.

acknowledge that Arizona has a real and substantial interest

in traffic safety. Arizona, however, has failed to justify a

need to serve that interest through targeting and penalizing

day labor solicitation that blocks traffic, rather than directly

targeting those who create traffic hazards without reference

to their speech, as currently proscribed under the State’s preexisting traffic laws. Laws like this one that restrict more

protected speech than is necessary violate the First

Amendment.1

Arizona has also singled out day labor solicitation for a

harsh penalty while leaving other types of solicitation speech

that blocks traffic unburdened. Arizona defends this contentbased distinction by invoking the “unique” dangers posed by

labor solicitation. That justification is only minimally

supported by the record and, tellingly, S.B. 1070’s

introduction says nothing about traffic safety. Rather it

emphasizes that its purpose is to encourage self-deportation

by stripping undocumented immigrants of their livelihood.

Adopting content-based restrictions for reasons apparently

unrelated to traffic safety furthersupports the conclusion that

the day labor provisions restrict more speech than necessary.

Accordingly, the district court did not abuse its discretion

in concluding that the plaintiffs were likely to succeed on the

merits of their First Amendment challenge to the day labor

provisions. We therefore affirm the district court’s grant of

a preliminary injunction barring their enforcement.
VALLE DEL SOL V. WHITING 7

 Specifically, the day labor provisions state: 2

A. It is unlawful for an occupant of a motor

vehicle that is stopped on a street, roadway or highway

to attempt to hire or hire and pick up passengers for

work at a different location if the motor vehicle blocks

or impedes the normal movement of traffic.

B. It is unlawful for a person to enter a motor

vehicle that is stopped on a street, roadway or highway

in order to be hired by an occupant of the motor vehicle

and to be transported to work at a different location if

the motor vehicle blocks or impedes the normal

movement of traffic.

Ariz. Rev. Stat. § 13-2928(A)-(B).

BACKGROUND

The two provisions challenged here were included as part

of Section 5 of Arizona’s recent comprehensive immigration

reform bill, S.B. 1070. See Ariz. Rev. Stat. §§ 13-

2928(A)–(B) (Sections 5(A) and (B), collectively the day

labor provisions). Section 5(A) makes it a crime for an

occupant of a motor vehicle to solicit or hire a day laborer if

the motor vehicle blocks or impedes traffic. Section 5(B)

makes it a crime for a day laborer to enter a motor vehicle to

work at a different location if the motor vehicle blocks or

impedes traffic. Following several years of deliberation, the 2

Arizona House of Representatives passed the day labor

provisions in February 2010 as a standalone bill. State

Representative John Kavanagh, the provisions’ principal

legislative sponsor, said at committee hearings that the

provisions would promote traffic safety but would also

discourage the “shadow economy” of day labor and address

illegal immigration because “[a] large number of these people
8 VALLE DEL SOL V. WHITING

are illegal immigrants and this is the way they get work, and

this work is one of the anchors that keeps them in the

country.” After the day labor provisions passed the Arizona

House of Representatives, the Arizona Senate adopted them

as an amendment to S.B. 1070, an omnibus immigration bill.

S.B. 1070 includes a purposes clause, common to all

sections of the bill, which states that the “intent of [S.B.

1070] is to make attrition through enforcement the public

policy of all state and local government agencies in Arizona”

and that the “provisions of this act are intended to work

together to discourage and deter the unlawful entry and

presence of aliens and economic activity by persons

unlawfully present in the United States.” See S.B. 1070, ch.

113, 2010 Ariz. Sess. Laws § 1.

In May 2010, the plaintiffs filed suit in the District of

Arizona seeking a declaration that S.B. 1070 is

unconstitutional in its entirety. The plaintiffs are various

organizations and individuals affected by S.B. 1070. The

defendants are various county officials as well as the state of

Arizona and Arizona Governor Janice Brewer, who

intervened as defendants. In June 2010, the plaintiffs moved

for a preliminary injunction, arguing that the day labor

provisions violate the First Amendment. They renewed their

motion in October 2011, after we held in Comite de

Jornaleros de Redondo Beach v. City of Redondo Beach

(Redondo Beach), 657 F.3d 936 (9th Cir. 2011) (en banc),

that a Redondo Beach ordinance restricting all roadside

solicitation violates the First Amendment. See id. at 950–51

(holding that the restriction inhibited more speech than

necessary to serve the city’s goal of promoting traffic safety).
VALLE DEL SOL V. WHITING 9

The district court issued a preliminary injunction barring

enforcement of the day labor provisions in February 2012.

The key issue before the district court was whether the

plaintiffs are likely to succeed on the merits of their First

Amendment claim. The district court first held that Redondo

Beach does not control this case because the day labor

provisions, unlike the Redondo Beach ordinance, are

explicitly limited to commercial speech. The court then

evaluated the day labor provisions under the four-pronged test

for restrictions on commercial speech the SupremeCourt first

set out in Central Hudson Gas & Electric Corp. v. Public

Service Commission of New York, 447 U.S. 557, 566 (1980).

Under that test, we first evaluate whether the affected speech

is misleading or related to unlawful activity. See World Wide

Rush, LLC v. City of Los Angeles, 606 F.3d 676, 684 (9th Cir.

2010) (quoting Metro Lights, L.L.C. v. City of Los Angeles,

551 F.3d 898, 903 (9th Cir. 2009)). If not, the government

bears the burden of showing that it has a substantial interest,

that the restriction directly advances that interest and that the

restriction is not more extensive than necessary to serve the

interest. See id. The district court held that Sorrell v. IMS

Health, Inc., 131 S. Ct. 2653 (2011), required it to apply a

more demanding version of the “not more extensive than

necessary” test to content-based restrictions on commercial

speech. Finding the day labor provisions to be content-based,

the district court applied Sorrell and analyzed whether they

were “drawn to achieve” a substantial government interest.

Applying Central Hudson’s threshold requirement that

speech be related to lawful activity and not misleading, the

court ruled that because day labor is lawful activity,

restrictions on the solicitation of day labor merit First

Amendment scrutiny. Applying the “substantial interest”

prong, the court credited Arizona’s uncontroverted assertion
10 VALLE DEL SOL V. WHITING

that Arizona has a substantial government interest in traffic

safety. Applying the “direct advancement” prong, the court

concluded that the day labor provisions directly advance that

interest because they prohibit traffic-blocking activity that

would otherwise take place. Under the “not more extensive

than necessary” prong, however, the district court first held

that the day labor provisions are content-based restrictions

and then held that the “[d]efendants have not shown that

[they] . . . are drawn to achieve the substantial governmental

interest in traffic safety.” On the contrary, the district court

noted, the ordinance “appears to be structured to target

particular speech rather than a broader traffic problem.” The

court cited the purposes clause of S.B. 1070 and the existence

of obvious and less-burdensome alternatives as further

evidence that the day labor provisions were not drawn to

advance Arizona’s interest in traffic safety.

The district court concluded that the plaintiffs are likely

to succeed on the merits because the day labor provisions are

insufficiently tailored under Central Hudson’s fourth prong

as modified by Sorrell. It then found that the other

requirements for a preliminary injunction (irreparable harm,

balance of the equities and the public interest) were met and

granted a preliminary injunction barring enforcement of the

provisions. The intervenor defendants filed this interlocutory

appeal.

STANDARD OF REVIEW

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Natural Res.
VALLE DEL SOL V. WHITING 11

Def. Council, Inc., 555 U.S. 7, 20 (2008). We review an

order granting a preliminary injunction for an abuse of

discretion. See Katie A. ex rel. Ludin v. Los Angeles County,

481 F.3d 1150, 1155 (9th Cir. 2007). “Under this standard,

[a]s long as the district court got the law right, it will not be

reversed simply because the appellate court would have

arrived at a different result if it had applied the law to the

facts of the case.” Thalheimer v. City of San Diego, 645 F.3d

1109, 1115 (9th Cir. 2011) (alteration in original) (quoting

Dominguez v. Schwarzenegger, 596 F.3d 1087, 1092 (9th Cir.

2010), vacated on other grounds by Douglas v. Indep. Living

Ctr. of S. Cal., Inc., 132 S. Ct. 1204 (2012)). “This review is

limited and deferential, and it does not extend to the

underlying merits of the case.” Id. (quoting Johnson v.

Couturier, 572 F.3d 1067, 1078 (9th Cir. 2009)) (internal

quotation marks omitted). When the district court bases its

decision on an erroneous legal standard, we review the

underlying issues of law de novo. See Flexible Lifeline Sys.,

Inc. v. Precision Lift, Inc., 654 F.3d 989, 994 (9th Cir. 2011)

(per curiam). “[W]hen a district court grants a preliminary

injunction protecting First Amendment rights, ‘[i]f the

underlying constitutional question is close . . . we should

uphold the injunction and remand for trial on the merits.’”

Thalheimer, 645 F.3d at 1128 (second alteration in original)

(quoting Ashcroft v. ACLU, 542 U.S. 656, 664–65 (2004)).

DISCUSSION

Day laborers are those who, rather than having a fixed

place of employment, perform temporary work such as

gardening, tree trimming, yard clean-up, moving,

construction work, house cleaning and elder care. Because

such day laborers do not have a fixed place of employment,

they advertise their availability for employment by gathering
12 VALLE DEL SOL V. WHITING

in a visible location and then gesturing to motorists or

otherwise communicating their availability to work. Day

laborers frequently congregate on street corners and

sidewalks, and those who would hire day laborers often stop

in the road to negotiate terms and complete the hire. The day

labor provisions restrict speech by penalizing the solicitation

of day labor work when that solicitation impedes traffic. The

plaintiffs introduced declarations showing that, after the

provisions’ passage but before the district court enjoined

enforcement, employers refrained from hiring day laborers on

public streets and day laborers refrained from soliciting work

from the roadside out of fear of prosecution.

Arizona concedes that the day labor provisions restrict

day laborers’ and would-be employers’speech. But it argues

the provisions are permissible because it is illegal to block

traffic and because day labor solicitation presents unique

traffic safety concerns that justify special treatment of such

speech when it blocks traffic. Plaintiffs counter that

Arizona’s asserted interest in traffic safety is a sham; that the

true purpose of the provisions is to remove day laborers from

public view and to suppress their economic opportunities.

Regulations that inhibit speech must comport with the

requirements of the First Amendment. We recognize that

Arizona has a significant interest in protecting the safe and

orderly flow of traffic on its streets. We similarly credit

Arizona’s assertion that the roadside solicitation of labor may

create dangerous traffic conditions. The First Amendment

requires more than the invocation of a significant government

interest, however. Rather, it requires that the restriction’s

benefits be balanced against the burden on protected speech.

How we conduct this balancing depends on what type of

speech is regulated and whether the regulation is content-
VALLE DEL SOL V. WHITING 13

 At oral argument, Arizona argued that the day labor provisions apply 3

only to consummated transactions and not to negotiations or attempts to

hire a day laborer. That argument is belied by the plain language of

Section 5(A), which explicitly penalizes the “attempt to hire . . . and pick

up passengers for work at a different location.” We will not apply a

limiting construction that is contrary to the plain language of the statute.

See Bd. of Airport Comm’rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569,

based or content-neutral. We shall address these questions

before turning to the ultimate question of whether Arizona’s

interest in traffic safety justifies its restriction on day labor

solicitation.

I.

The district court correctly determined that the day labor

provisions are content-based restrictions on commercial

speech.

A. The Day Labor Provisions Restrict Only

Commercial Speech

Commercial speech is that “which does ‘no more than

propose a commercial transaction.’” Va. State Bd. of

Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.

748, 762 (1976) (quoting Pittsburgh Press Co. v. Pittsburgh

Comm’n on Human Relations, 413 U.S. 376, 385 (1973)).

Such speech is protected by the First Amendment, but to a

lesser degree than other types of speech. See United States v.

United Foods, Inc., 533 U.S. 405, 409 (2001) (“We have used

standards for determining the validity of speech regulations

which accord less protection to commercial speech than to

other expression.”). A motorist who pulls over and either

hires or attempts to hire a day laborer has proposed a

commercial transaction. By the same token, a day laborer

3
14 VALLE DEL SOL V. WHITING

575 (1987) (refusing to adopt a limiting construction because “the words

of the resolution simply leave no room for a narrowing construction”).

soliciting work from the roadside proposes a commercial

transaction. Because the day labor provisions are explicitly

limited to attempts to hire, hiring, picking up and transporting

workers to work at a different location, all affected speech is

either speech soliciting a commercial transaction or speech

necessary to the consummation of a commercial transaction.

The plaintiffs, however, argue that day labor solicitation

speech is “core” First Amendment speech because it is

inextricably intertwined with core political and economic

messages. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781, 796 (1988) (holding that commercial speech

does not “retain[] its commercial character when it is

inextricably intertwined with otherwise fully protected

speech”). Plaintiffs may be correct that day laborers convey

vital political and economic messages when they solicit work

from the side of the road, but those messages are not

inextricably intertwined with the speech the day labor

provisions regulate. Nothing in those provisions prohibits a

worker from expressing his views publicly, nor is there any

reason such views cannot be expressed without soliciting

work. See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.

469, 474 (1989) (“No law of man or of nature makes it

impossible to sell housewares without teaching home

economics, or to teach home economics without selling

housewares.”).

Immigration policy and economic equality are matters of

public importance and the mere presence of day laborers on

the street may express something about their own views on

these topics. The presence of day laborers soliciting work in
VALLE DEL SOL V. WHITING 15

the streets may also increase the salience of economic or

immigration debates to others who encounter the day

laborers. However compelling these arguments, the Supreme

Court has made clear that “advertising which ‘links a product

to a current public debate’ is not thereby entitled to the

constitutional protection afforded noncommercial speech.”

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 68 (1983)

(quoting Cent. Hudson, 447 U.S. at 563 n.5)). The act of

soliciting work as a day laborer may communicate a political

message, but the primary purpose of the communication is to

advertise a laborer’s availability for work and to negotiate the

terms of such work. The district court correctly concluded

that the day laborer provisions restrict only commercial

speech.

B. The Day Labor Provisions Are Content-Based

Restrictions

The district court also correctly determined that the day

labor provisions are content-based restrictions on commercial

speech. “A regulation is content-based if either the

underlying purpose of the regulation is to suppress particular

ideas or if the regulation, by its very terms, singles out

particular content for differential treatment.” Berger v. City

of Seattle, 569 F.3d 1029, 1051 (9th Cir. 2009) (en banc)

(citation omitted). On their face, the day labor provisions

target one type of speech – day labor solicitation that impedes

traffic – but say nothing about other types of roadside

solicitation and nonsolicitation speech. They are therefore

classic examples of content-based restrictions. Our

conclusion is confirmed by the stated purpose of the

provisions, their legislative history and the disproportionate

sanctions they impose for traffic problems arising from day

labor solicitation. See Sorrell v. IMS Health Inc., 131 S. Ct.
16 VALLE DEL SOL V. WHITING

2653, 2663 (2011) (“Just as the ‘inevitable effect of a statute

on its face may render it unconstitutional,’ a statute’s stated

purposes may also be considered” in determining whether it

is content-based. (quoting United States v. O’Brien, 391 U.S.

367, 384 (1968))); United States v. Playboy Entm’t Grp., Inc.,

529 U.S. 803, 812 (2000) (noting that a speech by a bill’s

sponsor supported the Court’s determination that the bill was

content-based); cf. Moss v. U.S. Secret Serv., 675 F.3d 1213,

1224–25 (9th Cir. 2012) (holding that differential treatment

supports an inference of viewpoint discrimination).

The district court reasonably determined that the purpose

of the day labor provisions was to suppress labor-solicitation

speech rather than to promote traffic safety. Significantly, the

purposes clause introducing S.B. 1070 describes it as an

immigration bill, not a traffic safety bill. See S.B. 1070, ch.

113, 2010 Ariz. Sess. Laws § 1 (The “intent of [S.B. 1070] is

to make attrition through enforcement the public policy of all

state and local government agencies in Arizona” and the

“provisions of this act are intended to work together to

discourage and deter the unlawful entry and presence of

aliens and economic activity by persons unlawfully present in

the United States.”). This clear and unambiguous expression

of purpose contradicts Arizona’s argument that the day labor

provisions are content-neutral traffic regulations. Rather,

they appear expressly intended to deter day labor activity by

undocumented immigrants.

Though not dispositive of legislative intent, portions of

the legislative history also evince hostility to day laborer

solicitation rather than concern with traffic safety. For

instance, State Representative Kavanagh, the day labor

provisions’ principal legislative sponsor, stated at committee

hearings that they would promote traffic safety but that they
VALLE DEL SOL V. WHITING 17

would also discourage the “shadow economy” of day labor

and address illegal immigration because “[a] large number of

these people are illegal immigrants and this is the way they

get work, and this work is one of the anchors that keeps them

in the country.”

Finally, the day labor provisions’ punishment is far out of

line with punishments for other similar traffic violations. For

example, conduct that recklessly impedes traffic is punishable

by 30 days’ imprisonment, but day labor solicitation that is

not dangerous or reckless, but merely impedes traffic, is a

class 1 misdemeanor punishable by up to six months’

imprisonment. Compare Ariz. Rev. Stat. § 13-2928(F)

(violation of the day labor provisions is a class 1

misdemeanor), and § 13-707(A)(1) (class 1 misdemeanor

punishable by up to six months’ imprisonment), with § 13-

2906 (recklessly interfering with the passage of any highway

or public thoroughfare is a class 3 misdemeanor), and § 13-

707(A)(3) (class 3 misdemeanor punishable by up to 30 days’

imprisonment). The imposition of a much harsher penalty for

those who block traffic while engaging in labor solicitation

speech evidences the desire to suppress such speech.

Arizona argues that the day labor provisions are contentneutral because they were enacted to ameliorate “secondary

effects” – the traffic problems created when day laborers

congregate and solicit employment from passing vehicles.

See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48

(1986) (holding that a zoning regulation on adult theaters was

content-neutral because it had been enacted to “prevent

crime, protect the city’s retail trade, maintain property values,

and generally [protect] and [preserve] the quality of [the

City’s] neighborhoods, commercial districts, and the quality

of urban life” (internal quotation marks omitted)). Arizona
18 VALLE DEL SOL V. WHITING

raised this argument before the district court, which implicitly

rejected it by finding that the day labor provisions are

content-based. This rejection was not an abuse of discretion

in light of the facts showing that the purpose of the day labor

provisions was to suppress labor-solicitation speech. Cf. id.

(holding that a content-neutral “‘predominate’ intent[] . . . is

more than adequate to establish that the city’s [purpose] . . .

was unrelated to the suppression of free expression.”).

Arizona’s argument that the day labor provisions are contentneutral under Hill v. Colorado, 530 U.S. 703, 719–20 (2000),

because they are “justified” by its interest in traffic safety

suffers from the same defect. See ACLU of Nev. v. City of

Las Vegas, 466 F.3d 784, 793 (9th Cir. 2006) (“‘[T]he mere

assertion of a content-neutral purpose [is not] enough to save

a law which, on its face, discriminates based on content.’ . . .

[Instead,] we will hold that [an] ordinance is content-based if

. . . the main purpose in enacting it was to suppress or exalt

speech of a certain content.” (first and second alterations in

original) (emphasis added) (quoting Turner Broad. Sys., Inc.

v. FCC, 512 U.S. 622, 642–43 (1994))).

The district court correctly concluded that the day labor

provisions are content-based restrictions.

II.

The district court also correctly concluded that the day

labor provisions are likely unconstitutional restrictions. We

evaluate restrictions on commercial speech using the fourpart test from Central Hudson:

(1) if the communication is neither misleading

nor related to unlawful activity, then it merits

First Amendment scrutiny as a threshold
VALLE DEL SOL V. WHITING 19

matter; in order for the restriction to withstand

such scrutiny, (2) [t]he State must assert a

substantial interest to be achieved by

restrictions on commercial speech; (3) the

restriction must directly advance the state

interest involved; and (4) it must not be more

extensive than is necessary to serve that

interest.

World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676,

684 (9th Cir. 2010) (alteration in original) (internal quotation

marks omitted) (quoting Metro Lights, L.L.C. v. City of Los

Angeles, 551 F.3d 898, 903 (9th Cir. 2009)). The parties

dispute whether the day labor provisions satisfy Central

Hudson’s first, third and fourth prongs. The parties also raise

the challenging issue of whether Sorrell, 131 S. Ct. at 2664,

2667–68, made the fourth Central Hudson prong for contentbased restrictions on commercial speech even more

demanding for the state. We conclude that the day labor

provisions are deficient under even the pre-Sorrell, arguably

more government-friendly, precedent urged by Arizona. We

will therefore apply that precedent and defer extended

discussion of Sorrell for a more appropriate case with a more

fully developed factual record. We turn to each of Central

Hudson’s four prongs in turn.

A. Day Laborer Solicitation Is Neither Misleading nor

Related to Unlawful Activity

Commercial speech merits First Amendment protection

only if “the communication is neither misleading nor related

to unlawful activity.” World Wide Rush, 606 F.3d at 684

(quoting Metro Lights, 551 F.3d at 903). Arizona argues that

the day labor provisions are permissible because they regulate
20 VALLE DEL SOL V. WHITING

speech only when associated with the unlawful activity of

blocking or impeding traffic. Arizona’s proposed rule would

be a novel extension of Central Hudson’s legality

requirement, which has traditionally focused on the content

of affected speech – i.e., whether the speech proposes an

illegal transaction – instead of whether the speech is

associated with unlawful activity. See Wash. Mercantile

Ass’n v. Williams, 733 F.2d 687, 691 (9th Cir. 1984)

(rejecting the argument that drug paraphernalia’s association

with illegal drug use allows the state to restrict all

paraphernalia advertising; instead holding that paraphernalia

advertising is not protected in states where such sales are

illegal but that paraphernalia advertising warrants First

Amendment scrutiny if the advertising proposes a sale in a

state where such sales are legal). Some decisions have

expressly phrased the legality requirement as whether “the

transactions proposed in the forbidden [communication] are

themselves illegal in any way.” Va. State Bd. of Pharmacy,

425 U.S. at 772; see also Zauderer v. Office of Disciplinary

Counsel of Supreme Court of Ohio, 471 U.S. 626, 638 (1985)

(“The States and the Federal Government are free to prevent

the dissemination of commercial speech that . . . proposes an

illegal transaction . . . .”). Other decisions have used Central

Hudson’s more general “related to unlawful activity”

language. Cent. Hudson, 447 U.S. at 564; see also Fla. Bar

v. Went For It, Inc., 515 U.S. 618, 623–24 (1995) (“Under

Central Hudson, the government may freely regulate

commercial speech that concerns unlawful activity . . . .”).

However it is formulated, we think it clear that Central

Hudson’s legality requirement requires us to evaluate the

content of a commercial message rather than the means by

which that message is conveyed. Here, that means that the

plaintiffs have satisfied the requirement because it is legal to
VALLE DEL SOL V. WHITING 21

hire or be hired for day labor. We find support for this

conclusion both in Pittsburgh Press, the Supreme Court case

upon which Arizona principally relies, and in the Supreme

Court’s explanation in R.A.V. v. City of St. Paul, 505 U.S.

377, 383–84 (1992), of what it means for certain speech to be

“excluded” from First Amendment protection.

Pittsburgh Press, the case from which Central Hudson

drew its legality requirement, considered only the commercial

transaction proposed by an advertisement. There, the

Supreme Court held that a newspaper has no First

Amendment right to publish a discriminatory employment

advertisement. See Pittsburgh Press, 413 U.S. at 388–89.

The Supreme Court reasoned that, just as it would be

permissible to ban an advertisement for narcotics or

prostitution, it was permissible to ban gender-specific job

postings because sex discrimination in hiring is illegal. See

id. at 388. The Court concluded that “[a]ny First Amendment

interest which might be served by advertising an ordinary

commercial proposal and which might arguably outweigh the

governmental interest supporting the regulation is altogether

absent when the commercial activity itself is illegal and the

restriction on advertising is incidental to a valid limitation on

economic activity.” Id. at 389.

In Pittsburgh Press, unlike here, the affected speech

proposed an illegal transaction – the discriminatory hiring of

a worker. The day labor provisions, on the other hand,

regulate speech proposing a legal transaction where the

speech is conducted in an unlawful manner. Nothing in

Pittsburgh Press or any other case Arizona cites suggests that

we should expand our inquiry beyond whether the affected

speech proposes a lawful transaction to whether the affected

speech is conducted in a lawful manner. Moreover, the
22 VALLE DEL SOL V. WHITING

Supreme Court’s discussion in R.A.V. of categorical First

Amendment exemptions cautions that such an expansion

would be improper.

In R.A.V., the Supreme Court discussed its approach to

categorical exemptions from First Amendment scrutiny. It

explained that, although it has sometimes said that the

“protection of the First Amendment does not extend” to

certain categories of speech, that statement is not “literally

true.” R.A.V., 505 U.S. at 383 (quoting Bose Corp. v.

Consumers Union of U.S., Inc., 466 U.S. 485, 504 (1984)).

Instead, what a categorical exclusion means is that, “these

areas of speech can, consistently with the First Amendment,

be regulated because of their constitutionally proscribable

content.” Id. The proposal of an illegal transaction is, like

the obscenity and defamation discussed in R.A.V.,

categorically exempted from First Amendment protection

because it lacks social value. See United States v. Williams,

553 U.S. 285, 297 (2008) (“Offers to engage in illegal

transactions are categorically excluded from First

Amendment protection.” (citing Pittsburgh Press, 413 U.S.

at 388)). The basis of this categorical exclusion is the content

of the speech, not the manner in which that speech is

conducted. See id. (“[O]ffers to give or receive what it is

unlawful to possess have no social value and thus, like

obscenity, enjoy no First Amendment protection.” (citing

Pittsburgh Press, 413 U.S. at 387–89)). Thus, in deciding

whether to apply a categorical exception, we look to the

content of a communication rather than the method of that

communication. Here, the content of the communication –

the solicitation of labor – is perfectly legal.

This approach fits with R.A.V.’s ultimate lesson, which is

that government may not leverage its power to regulate one
VALLE DEL SOL V. WHITING 23

sphere of activity into the ability to favor certain speech

within that sphere. So, though a state may ban all fighting

words, it may not ban only those fighting words that invoke

race, color, creed, religion or gender. See R.A.V., 505 U.S. at

391–96. Similarly, the government may prohibit all outdoor

fires, but it may not specifically prohibit flag burning. Id. at

385 (“[B]urning a flag in violation of an ordinance against

outdoor fires could be punishable, whereas burning a flag in

violation of an ordinance against dishonoring the flag is not.”

(citing Texas v. Johnson, 491 U.S. 397, 406–07 (1989))). In

the commercial speech context, R.A.V. noted that, though a

state may “regulate price advertising in one industry but not

in others, because the risk of fraud . . . is in its view greater

there,” it “may not prohibit only that commercial advertising

that depicts men in a demeaning fashion.” Id. at 388–89

(citations omitted).

Arizona may prohibit pedestrians and motorists from

blocking traffic, and it has done so. See Ariz. Rev. Stat. § 13-

2906(A) (imposing criminal penalties for one who “recklessly

interferes with the passage of any highway or public

thoroughfare by creating an unreasonable inconvenience or

hazard”). But as we discuss below, it may not, consistent

with the First Amendment, use a content-based law to target

individuals for lighter or harsher punishment because of the

message they convey while they violate an unrelated traffic

law. Such disparate treatment implicates the First

Amendment.

In sum, it is legal in Arizona to hire or be hired for day

labor. The day labor provisions limit the ability of day

laborers and employers to solicit, negotiate and consummate

that legally permissible transaction. The district court

therefore correctly held that the day labor provisions are
24 VALLE DEL SOL V. WHITING

 Arizona identifies several other substantial interests, including crime 4

reduction, economic development and protecting the aesthetics of its

communities. As before the district court, Arizona identifies these

interests as substantial but fails to argue that the day labor provisions are

narrowly tailored to achieve them. We therefore decline to address these

additional interests.

subject to First Amendment scrutiny as restrictions on lawful,

nonmisleading speech.

B. Arizona Has Satisfied Central Hudson’s Second

Prong by Demonstrating that it Has a Substantial

Interest in Traffic Safety

Arizona asserts that the day labor provisions are justified

by the state’s desire to promote traffic safety. Promoting 4

traffic safety is undeniably a substantial government interest.

See Metromedia, Inc. v. City of San Diego, 453 U.S. 490,

507–08 (1981) (holding that there can be no “substantial

doubt that the twin goals that the ordinance seeks to further

– traffic safety and the appearance of the city – are substantial

governmental goals”). Arizona has therefore satisfied

Central Hudson’s substantial governmental interest

requirement.

C. The District Court’s Determination that the Day

Labor Provisions Directly Advance Arizona’s Interest

in Traffic Safety Was Not an Abuse of Discretion

Central Hudson’s third prong requires that a restriction on

commercial speech must “directly advance” the state’s

substantial interest. Cent. Hudson, 447 U.S. at 564. One

“consideration in the direct advancement inquiry is

‘underinclusivity . . . .’” Metro Lights, 551 F.3d at 904.
VALLE DEL SOL V. WHITING 25

“Central Hudson requires a logical connection between the

interest a law limiting commercial speech advances and the

exceptions a law makes to its own application.” Id. at 905.

We term a law that distinguishes among types of commercial

speech without such a logical connection “underinclusive.”

As we discuss here, underinclusivity is relevant to Central

Hudson’s direct advancement prong because it “may diminish

the credibility of the government’s rationale for restricting

speech in the first place.” Id. at 904–05 (quoting City of

Ladue v. Gilleo, 512 U.S. 43, 52 (1994)). As we discuss in

Section II.D, infra, underinclusivity is also relevant to

Central Hudson’s narrow tailoring prong.

Above, we held that the day labor provisions are contentbased because they distinguish between day labor solicitation

speech and all other types of roadside solicitation. In Ballen

v. City of Redmond, 466 F.3d 736 (9th Cir. 2006), we struck

down an ordinance that prohibited many commercial signs

but exempted real estate signs, because “[t]he City . . . failed

to show how the exempted signs reduce vehicular and

pedestrian safety or besmirch community aesthetics any less

than the prohibited signs.” Id. at 743. The adoption of a

content-based restriction, absent justification, “indicate[d]

that the City ha[d] not carefully calculated the costs and

benefits associated with the burden on speech.” Id.

The day labor provisions, however, are not automatically

underinclusive simplybecause they are content-based and fail

to regulate all forms of roadside communication. See Metro

Lights, 551 F.3d at 910 (noting that a regulation that bans

some, but not all, advertising signs is not automatically

underinclusive). Similarly, Arizona may discriminate

between different types of roadside communication if it

determines that roadside labor solicitations present more
26 VALLE DEL SOL V. WHITING

acute safety concerns than other roadside communications.

See id. (holding that the additional danger posed by

“uncontrolled and incoherent proliferation” of offsite signs

was sufficient justification for treating uncontrolled offsite

advertising differently from regulated advertising at transit

stops). Finally, Arizona may consider the benefits of

different types of roadside communications when determining

which communications to restrict. See id. at 910–11

(respecting city’s decision that the value it derives from one

form of advertising, but not another, “is stronger than the

city’s interests in traffic safety and esthetics.” (quoting

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 512

(1981))).

Arizona does not argue that day labor solicitation is less

valuable than other types of roadside solicitation. The inquiry

is therefore whether anything in the record supports Arizona’s

assertion that day labor solicitation creates more acute traffic

safety concerns than other types of roadside communication.

The plaintiffs say no, arguing that jaywalking, protesting,

selling food or goods at the side of the road and a number of

other activities present the same traffic concerns as day labor

solicitation but are unregulated by the day labor provisions.

Arizona counters that the plaintiffs’ assertion is the one

unsupported by the record, which includes news articles,

declarations and photographs of day laborers and vehicles

blocking traffic. We take the point that day labor solicitation

may create traffic safety concerns. This evidence is

nonprobative, however, on the key question of whether those

concerns are more acute than the traffic safety concerns

caused by other types of roadside communication.

Arizona introduced declarations from two former police

officers explaining the particular traffic problems caused by
VALLE DEL SOL V. WHITING 27

day laborer solicitation. Most of the officers’ declarations

discuss the hazards of roadside pedestrian-motorist

communications generally; while they would support

penalizing pedestrian-motorist interactions generally, they do

not support singling out day labor solicitation. One officer

did, however, represent that day laborer interactions require

the parties to negotiate multiple terms, and so take longer

than other types of in-street solicitation. Whether this

statement is admissible, accurate or generally applicable is far

from clear, but at this stage of the proceedings we must

accept it as an asserted fact that might justify harsher

sanctions than for other roadside speech that blocks traffic.

The district court applied the correct legal standard and

determined that the day labor provisions, while

“underinclusive to some degree,” still ban enough trafficblocking solicitation that they directly advance Arizona’s

interest in traffic safety. Although the evidence was weak,

the court’s conclusion was not an abuse of discretion.

D. There Is a Substantial Likelihood that Plaintiffs Will

Succeed on Their Claim that the Day Labor Provisions

Restrict More Speech than Necessary to Serve

Arizona’s Interest in Traffic Safety

Finally, Central Hudson requires that a regulation “is not

more extensive than is necessary to serve” a substantial

government interest. 447 U.S. at 566. The test is sometimes

phrased as requiring a “‘reasonable fit’ between

[government’s] legitimate interests” and the means it uses to

serve those interests, City of Cincinnati v. Discovery Network,

Inc., 507 U.S. 410, 416 (1993), or that the government

employ a “means narrowly tailored to achieve the desired

objective,” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.
28 VALLE DEL SOL V. WHITING

469, 480 (1989). The district court concluded that the

plaintiffs had established a likelihood of success on their

claim that the day labor provisions are not “drawn to achieve”

Arizona’s substantial interest in traffic safety. The court

derived this standard from Sorrell v. IMS Health, Inc., 131

S. Ct. 2653, 2667–68 (2011), which held that “[t]o sustain [a]

targeted, content-based burden . . . on protected expression,

the State must show at least that . . . the measure is drawn to

achieve that interest.” The parties debate whether this

standard is more stringent than Central Hudson’s formulation

that a restriction must be no “more extensive than is

necessary to serve that interest.” Cent. Hudson, 447 U.S. at

566. At the least, Sorrell articulates the test the Supreme

Court most recently applied to a content-based restriction on

commercial speech, so the district court did not err in

applying it. Whether Sorrell intended to make the

commercial speech test more exacting for the state to meet is

a question that we need not decide, because we conclude

plaintiffs are likely to succeed even under Central Hudson’s

formulation of the standard and our cases interpreting it.

Under those decisions, a restriction on commercial speech

“must not be more extensive than is necessary to serve” a

substantial government interest – i.e., it should not be

overinclusive. World Wide Rush, LLC v. City of Los Angeles,

606 F.3d 676, 684 (9th Cir. 2010) (quoting Metro Lights,

551 F.3d at 903) (internal quotation marks omitted). We

recently evaluated a similar in-street solicitation ban and held

it to be impermissibly overinclusive. See Comite de

Jornaleros de Redondo Beach v. City of Redondo Beach

(Redondo Beach), 657 F.3d 936, 950 (9th Cir. 2011) (en

banc). Redondo Beach applied the “time, place or manner”

test for content-neutral restrictions on core First Amendment

speech. Id. at 945. Like Central Hudson’s for restrictions on
VALLE DEL SOL V. WHITING 29

commercial speech, that test requires that a regulation be

narrowly tailored to serve a significant government interest.

See id. at 948 (“To satisfy the [time, place or manner] narrow

tailoring requirement, ‘the Government . . . bears the burden

of showing that the remedy it has adopted does not burden

substantially more speech than is necessary to further the

government’s legitimate interests.’” (quoting Turner Broad.

Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994))). Because the

test for commercial speech is “‘substantially similar’ to the

application of the test for validity of time, place, and manner

restrictions,” Redondo Beach provides a helpful framework

for analyzing this case. Fox, 492 U.S. at 477 (quoting S.F.

Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522,

537 n.16 (1987)).

In Redondo Beach, as here, the government sought to

justify an in-street solicitation ban by its interest in traffic

flow and safety. Redondo Beach, 657 F.3d at 947. The ban

applied to all in-street solicitation, regardless of whether the

solicitation blocked traffic. See id. at 941–42. We

recognized, as we do here, that traffic safety is an important

government interest and that solicitation may create

dangerous traffic conditions. See id. at 947–48.

Nevertheless, we held that Redondo Beach’s law was

overinclusive because it restricted more speech than

necessary to serve Redondo Beach’s interest in traffic safety.

See id. at 947–51.

Arizona’s law is less restrictive than Redondo Beach’s

because the day labor provisions regulate only labor

solicitation that blocks traffic, whereas Redondo Beach’s

ordinance regulated all roadside solicitation. Nevertheless,

one line of analysis from Redondo Beach is highly relevant

and persuasive. The Redondo Beach ordinance restricted
30 VALLE DEL SOL V. WHITING

more speech than necessary because “[t]he City has various

other laws at its disposal that would allow it to achieve its

stated interests while burdening little or no speech.” Id. at

949. That holding was based on the longstanding rule that,

because restricting speech should be the government’s tool of

last resort, the availability of obvious less-restrictive

alternatives renders a speech restriction overinclusive. See id.

at 950 (citing Discovery Network, 507 U.S. at 417 n.13 (“[I]f

there are numerous and obvious less-burdensome alternatives

to the restriction on commercial speech, that is certainly a

relevant consideration in determining whether the ‘fit’

between ends and means is reasonable.”); Village of

Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 637

(1980) (“The Village’s legitimate interest in preventing fraud

can be better served by measures less intrusive than a direct

prohibition on solicitation. Fraudulent misrepresentations can

be prohibited and the penal laws used to punish such conduct

directly.”); Schneider v. New Jersey, 308 U.S. 147, 162

(1939) (“There are obvious methods of preventing littering.

Amongst these is the punishment of those who actually throw

papers on the streets.”)).

Plaintiffs have cited a number of preexisting Arizona laws

that could be used to address legitimate traffic safety

concerns without burdening speech. These include Arizona

Revised Statutes Sections 28-873(A) (civil penalties for

stopping or parking a car in various situations), 28-905 (civil

penalties for opening a car door if it interferes with traffic),

and 13-2906(A) (criminal penalties for one who “recklessly

interferes with the passage of any highway or public

thoroughfare by creating an unreasonable inconvenience or

hazard.”). Arizona responds that “the existing traffic laws

had insufficient or no deterrent effect on in-street
VALLE DEL SOL V. WHITING 31

employment solicitation.” This argument misses the point

and is in any event unsupported.

First, Arizona’s substantial government interest is in

traffic flow and safety, not in curbing in-street employment

solicitation. The question is therefore not whether existing

laws are sufficient to deal with in-street employment

solicitation, but rather whether existing laws are sufficient to

deal with the traffic problems that may attend in-street

employment solicitation. Arizona, which bears the burden of

proof on this issue, has introduced no evidence addressing it.

Second, our consideration is not limited to Arizona’s

actual traffic safety regulations, but includes any potential or

actual traffic safety regulations that are obviously available.

See, e.g., Discovery Network, 507 U.S. at 417 (“The fact that

the city failed to address its recently developed concern about

newsracks by regulating their size, shape, appearance, or

number indicates that” the restriction was not narrowly

tailored). As discussed above, Redondo Beach identified a

number of existing laws the city could have invoked that were

broad enough to address the traffic concerns attending instreet employment solicitation without implicating speech.

See Redondo Beach, 657 F.3d at 949–50 (citing California

ordinances prohibiting jaywalking, stopping in traffic

alongside a red-painted curb, stopping a car “so as to obstruct

the normal movement of traffic,” standing in a roadway “if

such action interferes with the lawful movement of traffic”

and standing or stopping “except as near as is physically

possible to the building line or the curb line”). Our

discussion in Redondo Beach highlights the animating First

Amendment principle that government must consider

pursuing its interests through conduct-based regulations

before enacting speech-based regulations.
32 VALLE DEL SOL V. WHITING

 We reiterate that we consider only the limited record before us and 5

only as a predictive matter at the preliminary injunction stage. Nothing in

our opinion should be read as foreclosing the parties from introducing

additional evidence as this case proceeds.

Nothing in the record shows that Arizona could not

effectively pursue its interest in traffic safety by enforcing or

enacting similar kinds of speech-neutral traffic safety

regulations. Therefore, even under the Central Hudson

standard Arizona urges, plaintiffs are likely to succeed on the

merits of their claim that the day labor provisions are

overinclusive because they restrict more speech than

necessary to serve Arizona’s interest in traffic safety.5

The day labor provisions are a poor fit with Arizona’s

interest in traffic safety because, in this context, they are also

underinclusive. As we previously discussed, the district court

did not abuse its discretion in concluding that the day labor

provisions are underinclusive but not so much so that they fail

to directly advance Arizona’s interest in traffic safety. That

the day labor provisions are underinclusive is still relevant,

however, to whether they satisfy Central Hudson’s no-moreextensive-than-necessary prong. The district court correctly

noted the relevance of underinclusivity to this inquiry and

correctly determined that the provisions’ underinclusivity

contributes to the plaintiffs’ likelihood of success on the

merits. See Metro Lights, 551 F.3d at 905 n.8 (explaining

that underinclusivity is relevant to both whether a speech

restriction directly advances the government’s interest and

whether it is more extensive than necessary).

A statute that “discriminat[es] on the basis of content”

may be “‘more extensive than necessary’ to advance the

government’s interest” if there is no valid reason for the
VALLE DEL SOL V. WHITING 33

discrimination. Id. (quoting Cent. Hudson, 447 U.S. at 566)

(citing Ballen, 466 F.3d at 743–44). In Ballen, we held that,

where there is no reason related to the government’s asserted

interest for distinguishing based on content, a content-based

law restricts more speech than necessary because it indicates

that the government “has not carefully calculated the costs

and benefits associated with the burden on speech imposed by

its discriminatory, content-based prohibition.” 466 F.3d at

743.

The day labor provisions are content-based restrictions

designed to suppress the economic activity of undocumented

immigrants. Unlike in Ballen, Arizona has proffered at least

some legitimate basis for distinguishing between day labor

solicitation and other roadside communications. See Section

II.C, supra. As noted, however, that justification is only

marginally supported by the record. In its narrow tailoring

analysis, the district court correctly discounted it and

emphasized S.B. 1070’s purposes clause, the fact that the day

labor provisions provide penalties drastically out-ofproportion to those for other traffic violations and the

legislative record. These factors all support the court’s

conclusion that the day labor provisions are underinclusive

because they are “structured to target particular speech rather

than a broader traffic problem.” That conclusion, whether

under Central Hudson or Sorrell, undercuts Arizona’s

argument that the day labor provisions are narrowly tailored

to serve its interest in traffic safety.

In sum, Arizona could have advanced its interest in traffic

safety directly, without reference to speech. The availability

of such obvious and less-restrictive alternatives makes the

day labor provisions overinclusive. They are also

underinclusive because they draw content-based distinctions
34 VALLE DEL SOL V. WHITING

that appear motivated by a desire to eliminate the livelihoods

of undocumented immigrants rather than to address Arizona’s

interest in traffic safety. Being both overinclusive and

underinclusive, the day labor provisions restrict more speech

than necessary to serve Arizona’s interest in traffic safety.

The district court correctly determined that plaintiffs are

likely to succeed on the merits of their First Amendment

claim.

III.

In addition to likelihood of success on the merits, a court

granting a preliminary injunction must consider the likelihood

of irreparable harm in the absence of preliminary relief, the

balance of equities and the public interest. See Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The

district court considered each of these factors. Its conclusion

that plaintiffs would suffer irreparable harm in the absence of

an injunction was appropriate because “[t]he loss of First

Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v.

Burns, 427 U.S. 347, 373 (1976). The court correctly found

that the equities tip in favor of the plaintiffs because they

have a significant First Amendment and economic interest in

engaging in solicitation speech and Arizona need not impede

that speech in order to pursue its traffic safety goals. Finally,

the court correctly found that an injunction is in the public

interest because the day labor provisions, if enforced, would

infringe the First Amendment rights of many persons who are

not parties to this lawsuit.
VALLE DEL SOL V. WHITING 35

CONCLUSION

Laws that limit commercial speech must not be more

extensive than necessary to serve a substantial government

interest. The district court correctly determined that, though

Arizona has a significant government interest in promoting

traffic safety, the day labor provisions fail Central Hudson’s

requirement that restrictions on commercial speech be no

more extensive than necessary to serve that interest. The

district court did not abuse its discretion in concluding that

the plaintiffs are likely to succeed on the merits and that the

other requirements for a preliminary injunction are satisfied.

We therefore affirm the preliminary injunction barring

enforcement of the day labor provisions.

AFFIRMED