Valle del Sol V. Whiting

The day labor provisions of Senate Bill 1070 impermissibly restrict commercial speech because under Central Hudson , they are more extensive than necessary to advance Arizona's stated government interest in traffic safety.

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.” The district court held the plaintiffs were likely to succeed upon the merits on their First Amendment challenge and granted a preliminary injunction against the enforcement of these day labor provisions. Under Central Hudson, restrictions on commercial speech must be “no more extensive than necessary to serve that interest.” The first prong of the Central Hudson test is “whether the affected speech is misleading or related to unlawful activity.” The district court found that day labor is a lawful activity, meeting the first prong of the Central Hudson test. Arizona fulfilled the second prong of the Central Hudson test because it showed that there was a substantial government interest in traffic safety. The law “directly advanced” the government’s substantial interest because it promotes traffic safety, thus fulfilling the third prong of Central Hudson. However, the district court found that the law was more “extensive than necessary” because “less burdensome alternatives” existed to advance Arizona’s stated interest of traffic safety, failing Central Hudson’s fourth prong. In reviewing the district court’s decision for abuse of discretion, the Ninth Circuit found the law was a content-based restriction on commercial speech because “it singles out particular content for differential treatment” while not regulating other types of roadside advertising. The Ninth Circuit concluded that “Arizona could have advanced its interest in traffic safety directly, without reference to speech.” AFFIRMED.