Laborer Ruling a Setback for Herndon

By Bill Turque
Washington Post Staff Writer
Thursday, August 30, 2007

A Fairfax Circuit Court judge threw out Herndon's anti-solicitation ordinance yesterday, finding that the town's two-year-old prohibition against laborers and motorists discussing employment on the streets violates First Amendment rights to free speech.

The 11-page opinion by Judge Leslie Alden was a legal setback for town officials, who regarded the ordinance as an important tool in their crackdown on illegal immigrants. Some town leaders say such immigrants account for most of those seeking work.

The ruling came as the town announced it was preparing to take over management of the Herndon Official Workers Center, which opened in December 2005 to provide an alternative site for day workers to meet prospective employers.

The center has been a focal point of Northern Virginia's increasingly bitter immigration debate. Reston Interfaith, which has operated the center for the town under a grant from Fairfax County, does not require the 120 or so mostly Hispanic workers who use the facility to prove that they are in the country legally. The group's county funding and agreement with the town expire Sept. 14.

After searching unsuccessfully since late last year for a new operator that would verify workers' immigration status, the town is poised to take over the center temporarily. Mayor Stephen J. DeBenedittis, who unseated incumbent Michael L. O'Reilly last year with a promise to overhaul the labor site, announced yesterday that at its meeting Tuesday, the Town Council will consider hiring its own staff to run the center. Town employees would seek documentation from workers, he said.

Reston Interfaith officials said they expect most of the laborers to return to the streets or perhaps leave Herndon rather than use a town-operated center.

Should they choose the streets, the town is left with an anti-solicitation ordinance that the court says is unconstitutional. Town Attorney Richard B. Kaufman declined to discuss the town's legal options, including plans for an appeal or whether it would continue to enforce the law.

"That question calls for a legal analysis, and I'm not going to provide that kind of advice in the public media," Kaufman said.

DeBenedittis said that even without the ordinance, the town is committed to preventing a return to the chaotic circumstances that existed before passage of the law and the opening of the center, when workers gathered every morning in a 7-Eleven parking lot on Elden Street.

"There are still many ways we can keep from returning to the previous situation," he said.

Yesterday's decision reversed a March 21 ruling in District Court upholding the Herndon ordinance. It is the latest in a flurry of court actions across the country stemming from local attempts to deal with the consequences of illegal immigration.

Alden found in favor of Stephen A. Thomas, 45, a Reston man ticketed by Herndon police last year for hiring a laborer in the parking lot of the Elden Street 7-Eleven. Thomas was driving home with the worker in September when he was stopped and cited for solicitation. The worker was not charged.

Thomas's attorney, Alexa K. Moseley of Fairfax, argued that the ordinance violated First Amendment protections because it singled out a specific category of speech -- employers and workers striking a deal -- and banned it on the basis of its content. The town said the ban was legitimate because it addressed traffic and other public safety problems posed by solicitation activity.

Alden rejected Moseley's "content" argument. The judge ruled the law was narrowly tailored to serve a significant community interest, passing two parts of a "three-prong test" governments face to justify restriction of speech in a public forum.

The third prong is where the town falls short, Alden said, noting that governments restricting public speech must "open ample alternative channels" for communication of the prohibited speech.

Alden said the Herndon Official Workers Center is not adequate because it is described in the ordinance as a temporary site. She also cited Reston Interfaith's agreement with the town, which was based on a temporary permit.

The bar on solicitation described in the ordinance, however, is permanent.

Alden said the issue also runs afoul of 14th Amendment guarantees of due process and equal protection under the law. Quoting from a 1982 Supreme Court ruling, Alden said the amendment's provisions are "universal in their application, to all persons . . . without regard to any differences of race, of color, or of nationality."

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