The ordinance violates the First Amendment by outlawing basic speech such as “waving arms,” “making hand signals,” “waving signs” and “jumping up and down.” It criminalizes this speech in “all of the areas dedicated to public use for public street purposes” and includes sidewalks, parkways, medians and curbs.Communities across the U.S. have been trying for years to displace day laborers, which some view as a public nuisance or worse. Oyster Bay claims that its ordinance is a safety measure, designed primarily to prevent solicitors from stopping passing vehicles. But the restriction appears to be drawn in much broader terms. Even if there is a history of efforts to crack down on day laborers in Oyster Bay, a court is not likely to view this as a targeted or content-based restriction. Rather, it will be analyzed as a content-neutral time, place, and manner restriction. The ordinance may not pass even the less demanding time, place, and manner standard. It seems to broadly restrict or even prohibit solicitation from public streets and sidewalks, which are "traditional public forums." The measure thus does not appear to be adequately "tailored" to the evil the town claims to be addressing.
Restrictive laws like this have been invalidated by some courts. In one case, the court found that the police had violated equal protection by engaging in a pattern and practice of sweeping day laborers from the streets. Some courts have invalidated day laborer solicitation ordinances on First Amendment grounds. I discuss such ordinances, and other mechanisms of "constiutional displacement" of vulnerable persons and groups, here.