By Kent Willis, Executive Director
In the beginning, Herndon’s proposed anti-solicitation ordinance was an ugly, xenophobic, and illegal attempt to sweep the town’s sidewalks of Latinos looking for work.  By the time it was finally adopted a couple of weeks ago -- and after we intervened with the threat of a lawsuit -- the language of the ordinance had improved considerably.
Nothing, however, can erase the troubling anti-immigrant sentiments that gave rise to the ordinance in the first place, and there is nothing to guarantee that the improved version of the ordinance will be implemented in a non-discriminatory way.
Like many places in Virginia, the Town of Herndon has a visible day labor population comprised mostly of Latinos who gather in known places to be picked up by employers in need of temporary help.  Town leaders concerned about this “visual blight” (their words, not mine) decided to pass an ordinance to prevent roadside solicitations for work, but they faced two significant obstacles.
The first was the First Amendment, which generally protects the right of individuals to communicate their views and desires when occupying a traditional public forum, such as a sidewalk.
The second was figuring out how to legally prevent the people they don’t like (such as Latino day laborers) from soliciting from sidewalks while allowing the people they do like (such as firefighters and high school students doing car washes).
So the wise town council of Herndon started things off with a preface to their proposed ordinance, claiming that its purpose was to reduce “visual blight” (yes, it was right there in the ordinance; told you it was their words, not mine) and maintain traffic and pedestrian safety by reducing driver distractions.
Then they banned all solicitation of motorists for donations or services by pedestrians.  They solved the pesky problem of protecting the solicitors they liked by creating an exemption for any charitable solicitation for a government-related organization.
So Latinos standing on a sidewalk holding a sign indicating they are looking for work is a traffic hazard, while firefighters wandering into traffic, boot in hand, soliciting donations are not?  And those scantily clad high school cheerleaders beckoning drivers to pull over for a car scrub?   Well, they are surely not a distraction.
The hypocrisy of this ordinance is mindboggling.  It is not about traffic safety at all.  And the way it slices and dices our notions of liberty and equality to fit the town’s narrow vision of societal perfection is simply unconstitutional.  Free speech means the right to express your views—including asking for a job—whether they are popular or not.  And the right to solicit drivers is the same for Latino laborers as it is for firefighters and cheerleaders.
Just before the ordinance came up for a vote, we sent a demand letter to town council members.  We said that the ban on visual blight as it applies to human beings standing on a sidewalk was preposterously illegal and had to go.  We said that banning solicitation of drivers who can safely pull off the road and legally negotiate with day laborers clearly had no effect on traffic flow and could not be prohibited.  And, we said that drawing a distinction between cheerleaders asking to be hired to wash cars and Latinos asking to the hired for, in some cases, that same purpose violated both free speech and equal protection.
We threatened to sue if they didn’t withdraw or substantially change the ordinance.  They responded by removing the reference to visual blight, restricting the ban on solicitations to roadsides where motorists cannot legally pull over, and by eliminating the exception for government-related solicitations.
The ordinance is improved but you can’t make a silk purse from this sow’s ear.   No matter how much better it looks on the surface, its origins still send a clear message to police to enforce it selectively against Latinos.
Four new members – Lisa Merkel, Sheila Olem, Jasbinder Singh, and Grace Wolf—join the Herndon Town Council on July 1, replacing four old members who voted in favor of the ordinance.  Based on their election campaigns, there’s a good chance they are not pleased with this new ordinance and don’t want to be saddled with its repercussions during their terms.
May I suggest that you write or send an email asking them to repeal this ordinance as their first act of business? (July 1 update: Contact information for Herndon Town Council members.)  Tell them that the ordinance may have been improved after the ACLU threatened to file a lawsuit, but that doesn’t rid it of its shameful intent or reduce the likelihood of selective enforcement based on nationality.  It needs to go altogether.
Don’t worry if you don’t live in Herndon.  Tell them you don’t want the Herndon version of this anti-immigrant, anti-American ordinance coming to your town, so the best thing is for there to be no Herndon version.