New Orleans My heart sank as I read the New York Times editorial in the wake of the 9^th Circuit Appeals court upholding an ordinance crafted by the City of Redondo Beach (California) pushing day laborers off the streets in the name of traffic safety.  The editorial said all of the right things, but when I read that the 9^th Circuit was basing their decision on a similar finding in ACORN v. City of Phoenix, 798 F.2d 1260, 1273 (9th Cir. 1986), I knew immediately that day laborers were in big, big trouble.

The first paragraph of the decision was chilling:

“This appeal raises a First Amendment challenge to

Redondo Beach Municipal Code § 3-7.1601, which prohibits

the act of standing on a street or highway and soliciting

employment, business, or contributions from the occupants of

an automobile. We have previously upheld a virtually identical

ordinance against a constitutional challenge. See ACORN

v. City of Phoenix, 798 F.2d 1260, 1273 (9th Cir. 1986). We

reach the same result here and hold that the Redondo Beach

ordinance is a valid time, place, or manner restriction.

Accordingly, we reverse the contrary decision of the district

court.”

Fred Brooks, one of the legendary ACORN canvass directors during the early and mid-1980’s, and now a professor of social work at Georgia State University in Atlanta, when running a program for us in Columbus, Ohio, introduced a brilliant piece of low technology, but stunningly effective grassroots fundraising methodology called “tagging.”  Based on annual fundraisers by firefighters (who used their boots) and other groups, with a recycled tennis ball can and masking tape with a slit on the top, an armada of “taggers” including members, organizers, and street kids would collect at busy traffic intersections and ask for contributions to support either ACORN or Local 100, and in return for a donation would hand the driver a “tag” thanking them and describing the organization’s work.  The money raised was serious.  Danny Cantor (now head of the NY Working Families Party), Cecile Richards, an outstanding class A tagger (and now head of Planned Parenthood), Kirk Adams (now chief of staff of SEIU), Beth Butler (executive director of A Community Voice in Louisiana), and their teams would often net over a $1000 back then on a Saturday tag even after paying 40% of the can to their taggers and discounting leakage (theft) of some cans which was common on the streets.  But, as good as tagging was, the pushback was as fierce in various communities.

In the New Orleans area restrictions became onerous and expensive even though often honored in the breach.  In Denver an organizer running a successful tag program was arrested and convicted of “public begging,” and in places like Phoenix ordinances were crafted to try and prevent or curtail any tagging that could arguably interfere with traffic in the name of public safety.  ACORN’s defense, led by our attorney Steve Bachmann at the time, was straight up first amendment freedom of speech, which of course it was.  With such arguments we prevailed in places like University City, a suburb outside of St. Louis, and other venues.  We expected to prevail in Phoenix, but it didn’t happen.  We elected not to appeal to the Supreme Court so that we could leave as much confusion as possible between various decisions in different appeals districts and keep more “bad law” from being made by the courts.

Now my friends at NDLON (the National Day Laborers Organizing Network) and their chief lawyer, Chris Newman, are caught in the same dilemma as various California cities copied the original Phoenix ordinances protected by the 9^th circuit.  It’s hard to be optimistic about courts anywhere around California not deciding that traffic comes first with livelihoods very distant on the list.

It’s hard to believe that we will end up with many choices other than to craft political decisions because I’m no more optimistic of a fair shot in the courts on these issue now than I was more than 20 years ago.  Maybe the answer is in set aside jornaleros areas like the ones maintained by the City of San Antonio?  Maybe the answer is to not ruffle the feathers and to make it work on the streets wherever it is possible and make some other deals in these smaller uptight California communities?

Anyway you look at it, we’ve drawn a tough hand.

As for tagging, I think about it all the time, and mark my words, I’m going to bring it back to support ACORN International in streets and cities near you.  I’m just not telling when and where!