“The majority is demonstrably, egregiously, recklessly wrong. If I could dissent twice, I would.”

September 16th, 2011

There’s no dissent like a Kozinksi dissent.

Chief Judge KOZINSKI, with whom Judge BEA joins, in deep dissent:

This is folly.

For years, the city of Redondo Beach has had a serious problem with day laborers—sometimes as many as seventy- five—crowding sidewalks and street-corners, soliciting work from passing motorists. See Appendix 1. As might be expected when large groups of men gather at a single loca- tion, they litter, vandalize, urinate, block the sidewalk, harass females and damage property. Cars and trucks stop to negoti- ate employment and load up laborers, disrupting traffic.1

Residents and businesses need not suffer these harms and indignities day in and day out for years on end. It is to secure the safety, beauty, tranquility and orderliness of neighbor- hoods that municipal governments are instituted among men. Nothing in the First Amendment prevents government from ensuring that sidewalks are reserved for walking rather than loitering; streets are used as thoroughfares rather than open-air hiring halls; and bushes serve as adornment rather than latrines. See Appendix 2. The majority is demonstrably, egre- giously, recklessly wrong. If I could dissent twice, I would.2 

Plus I love this opening, which is straight from the Sound of Music:

Let’s start at the very beginning, a very good place to start: Is this even a regulation of speech? Sure, it implicates speech, but almost everything implicates communication of some sort; governing would be impossible if price fixing, street- walking, gambling, blackmail, employment discrimination, the sale of human organs, operating a retail business and the gazillion other activities that involve communication were all subject to strict scrutiny. They are not, nor is the impromptu labor market that is the subject of this lawsuit.

Redondo Beach’s ordinance seeks to regulate conduct—precisely the kind of conduct that’s regulated when we require retail establishments to obtain business licenses, maintain health standards, buy insurance and hire workers based on merit rather than race or sex. Panda Express can’t set up a stand anywhere it pleases and start selling moo shu pork to motorists. Any argument that the First Amendment gives them a right to pander to passers-by would be laughed out of court.

Pander and pander. What a joy to read!

But what’s remarkable about the majority’s parade of horribles is just how unlikely and contrived they are: children selling lemonade; Girl Scouts selling cookies; “sidewalk food vendors . . . advertising their wares to passing motorists” id. at 17652;3 “a motorist who stops, on a residential street, to inquire whether a neighbor’s teen-age daughter or son would be interested in performing yardwork or babysitting,” id. (internal quotation mark omit- ted); “school children shouting ‘carwash’ at passing vehicles,” id. (internal quotation marks omitted).

The judicial imagination can always run wild in conjuring how laws can be misapplied, but the Supreme Court instructs us that “the mere fact that one can conceive of some imper- missible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.”

Oh and I love this part:

This is an important limitation that my colleagues overlook, and it wipes out most of their examples:

lemonade stands, food carts, cookie vendors, car washers, fund raisers. These activities are far more lovable than a bunch of scraggly men smoking and spitting while waiting for jobs, see infra apps. 1-3, but they’re entitled to no greater pro- tection from regulation: Each involves someone trying to interact with a motorist while he’s still at the wheel. As the Supreme Court explained in Vincent, piling on examples of the same kind of conduct affected by the regulation does not an overbreadth challenge make. 466 U.S. at 801-03.

And this!

My colleagues in the majority claim that “solicit” is “not reasonably susceptible” to this narrower reading, maj. op. at 17649, but I can’t believe they really mean it. How can you argue with the dictionary? The interpretation of “solicit” the majority now rejects as implausible is also the meaning we  ourselves have given that term for a quarter-century.

4As the majority acknowledges, maj. op. at 17648, the third edition of Webster’s New International Dictionary defines “solicit” as “to make peti- tion to” and “esp[ecially]: to approach with a request or plea (as in selling or begging).” Webster’s New International Dictionary 2169 (3d ed. 1981). This very clearly contemplates a face-to-face interaction. And the sainted Webster’s Second defines “solicit” as: “To make petition to; to entreat; importune; as, to solicit the king for relief; now, often, to approach with a request or plea, as in selling, begging, etc.; as, to solicit one’s neighbors for contributions.” Webster’s New International Dictionary 2393 (2d ed. 1939). The notion of approaching someone physically—as a day laborer or street walker must approach a parked car to solicit employment—seems a well-entrenched meaning of the term.

We’re each entitled to our own view of the law but not to our own lan- guage.

And it gets better!

If ordinary English and common sense weren’t enough, the history of the ordinance shows quite clearly that the city adopted it to deal with a festering problem: men standing on street corners soliciting work from motorists.

And this:

The majority turns up its collective nose at the city’s prof- fered interpretation as somehow not authoritative enough, maj. op. at 17647-50, but I’m at a loss to understand why a declaration from the city’s top law enforcement official doesn’t cut the mustard.

Too funny:

The majority argues that: “Apparently the Dissent agrees with us that the City’s proposed interpretation is untenable.” Maj. op. at 17649 n.4. Nice try. In fact, I disagree with every word in the opinion, including “the,” “and” and “or.” Here’s what the city actually argues: “The Ordi- nance is enforced only against solicitors who stand on the sidewalk or street and cause motorists to stop in traffic lanes in response to the solici- tation.” Blue Brief at 13. The city is saying that it interprets the ordinance as using “solicit” in the narrow sense—that is, involving a face-to-face interaction. Individuals such as street vendors, day laborers and street walkers, who seek to have face-to-face interactions with motorists, cause them to stop; there’s no other way to do business with someone in a mov- ing vehicle. Obviously, I agree with this argument—contrary to what my colleagues in the majority seem to think.


In its Herculean effort to suppress portions of the record it doesn’t like, see also pp. 17668-69 n.1 supra, the majority upends thus yet another line of authority that stands in its way, sub silentio overruling Fraser and Block. And, in what has now become its calling card, the majority doesn’t bother giving the parties an opportunity to brief the issue before mowing down our long-established case law. One must wonder whether the major- ity is even aware of the cases it casually tramples underfoot.


 or too expensive to rid the city’s streets of day laborers. Appointing themselves as a Super City Council, my colleagues—who need not answer to the voters—decide that they know how to run Redondo Beach better than its elected officials. Id. at 17654-55 (giving helpful advice as to which laws to enforce to get rid of the problem). This kind of overreaching can only lead to erosion of public confidence in the judiciary. For my part, if city officials swear under oath that they have tried to use existing laws to no avail, I will take their word for it—especially when there is nothing but judicial speculation to contradict them.

This will be another alarming signal to members of our bar, instructing them that they can no longer proffer shorthand previews of potential evi- dence at the summary judgment stage but must prepare and submit the entire trial record. We will rue the day we started down this perilous path.


I find it heavy-handed and arbitrary for the majority to take down part (b) of the ordinance even though no one—not the

parties, not the majority, not the district court—has suggested in any way that it’s unconstitutional standing on its own. That’s like taking out a healthy gall bladder because you’ve removed an abscessed appendix. The majority obviously needs schooling in the Hippocratic oath.

And this:

As Appendix 3 shows, denizens of Redondo Beach can drive just six miles outside their city and find day laborers waiting to be hired. Why isn’t that close enough? Where in our First Amendment law does it say that, if you live in Redondo Beach, you must have nine day-laborer solicitation centers within a ten-minute drive?

You know, I didn’t intend on reading the entire dissent–I definitely do not have enough time to do so–but once I started reading, I couldn’t stop. That, is a powerful writer!