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Appeals court: SB 1070 day labor provisions unconstitutional

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Appeals court: SB 1070 day labor provisions unconstitutional

A federal appeals court ruled Monday that the parts of Arizona's SB 1070 immigration law aimed at halting the hiring of day laborers are unconstitutional. The sections made it illegal to hire a person for work from a vehicle stopped in a roadway, or for a person to be hired in that manner.

The Ninth Circuit Court of Appeals upheld a preliminary injunction that blocked enforcement of those measures, saying they were an unconstitutional violation of First Amendment rights.

The appeals court agreed that the state has a valid interest in ensuring traffic safety. But it rejected the argument the day-laborer provision was strictly for traffic safety, pointing to the introduction of SB 1070 that said it was meant to encourage self-deportation by stripping undocumented immigrants of their livelihood.

“Laws that limit commercial speech must not be more extensive than necessary to serve a substantial government interest,” said the court, which found the Arizona law went too far.

Attorney General Tom Horne said Monday that he expects the case to be appealed to the U.S. Supreme Court.

“The right to free speech does not give anyone the right to endanger public safety,” Horne said in an emailed statement.

He echoed the argument laid out in the case that the provision is a commonsense effort to make sure the streets are safe for drivers and pedestrians.

“The court easily saw through that ploy,” said Dan Pochoda, the Arizona legal director for the American Civil Liberties Union.

The judges said Arizona already has laws in place that prohibit blocking traffic, but SB 1070 unnecessarily singled out day laborers seeking work and infringed on their right to commercial free speech.

The First Amendment protects the rights of everyone in the United States regardless of their immigration status, Pochoda said. He said it is “very possible this will be the final decision” in the case because traffic laws from other states targeting day laborers have been challenged and struck down in federal court.

From Judge Raymond Fisher's opinion, written for the unanimous three-judge panel:

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 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.

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 content based 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 further supports the conclusion that the day labor provisions restrict more speech than necessary.

The ruling adds another barrier to enforcing provisions of the 2010 law, only a portion of which was upheld by the Supreme Court. Last June, the high court gave the nod to requiring police to determine the immigration status of those they arrest, or those whom they suspect are in the country without proper documentation.

Civil rights groups have vowed to monitor the enforcement of that provision and return to the courts if racial profiling is found.

The Supreme Court tossed out much of SB 1070, striking down provisions that made it a state crime for immigrants to fail to carry "alien-registration papers;" one that allowed for warrantless arrest of anyone suspected of committing an offense that made them removable from the country; and one that made it a state crime for an undocumented person to seek work.

Justices did virtually invite a challenge to the law on civil rights grounds after enforcement began.

"There is a basic uncertainty about what the law means and how it will be enforced," wrote Chief Justice Roberts in ruling on a case against the law brought by the U.S. Justice Department.

The ruling "does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."

The ACLU's Pochoda said the group continues to monitor the “show-me-your-papers” provision.

“The battle is being waged for legal protection,” Pochoda said.

Immigration advocates hailed Monday’s decision as the latest in a series of rulings blocking provisions of SB 1070 that lead to criminal charges.

“The heart of SB 1070 has been cut out,” said Victor Viramontes, the lawyer with Mexican American Legal Defense and Education Fund who argued the case.

But Gov. Jan Brewer’s office called the ruling a disappointment. A statement from her office said she would be consulting with the state’s lawyers about future steps.

“This provision offered one more tool for law enforcement to use in combating crime in our neighborhoods as a result of illegal immigration,” the statement said.

Most of SB 1070's provisions were blocked by U.S. District Judge Susan Bolton in July 2010, before they went into effect.

Cronkite News Service’s Mary Shinn contributed to this report from Washington, D.C.

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