Unconstitutional pro-union gag law challenged

California law prohibits public officials from making statements that might “deter or discourage” public employees or applicants from membership in a public employee union. The law was passed in 2017 in anticipation of the Supreme Court’s ruling that compulsory public employee union dues are unconstitutional.

This California law, Section 3550, is also unconstitutional. It censors viewpoints that are critical of public employee unions on the basis of a vague and inherently shifting standard that makes it impossible to know ahead of time what speech is prohibited.

To combat this unconstitutional muzzling of one side of the debate, the Center for Individual Rights (CIR) has filed a lawsuit in the U.S. District Court for the Central District of California. (Full disclosure: I am a member of CIR’s board.) The California Policy Center is CIR’s co-counsel in the suit. Plaintiffs ask the court to enjoin enforcement of the law on the grounds that it violates the First and Fourteenth Amendments of the U.S. Constitution.

Section 3550 empowers union officials to file unfair labor practice charges with the Public Employment Relations Board whenever a public official makes a statement that could “deter or discourage” union membership. These charges may take years of litigation and tens of thousands of tax dollars to resolve. Therefore, school boards and local municipal governments have advised elected officials not to comment on union-related issues to avoid triggering a complaint.

By contrast, public officials who support union policies or promote unionization and encourage their employees to become dues-paying union members face no risk that advocating for those positions will trigger an unfair labor practice charge. This one-sided speech restriction deprives the public of important information and skews public debate to favor union policies — just as the authors of Section 3550 intended.

CIR represents seven public officials whose speech is being chilled by Section 3550. These officials have documented numerous instances where their ability to participate in public discussion over serious political issues has been limited because of the viewpoint discrimination and chilling effect of Section 3550. You can learn about some of these instances here. A Wall Street Journal’s editorial on the case is here.

The case is called Barke v. Banks. It’s an important one. A decision in favor of CIR and the California Policy Center will re-affirm First Amendment protections for the expression of differing views, particularly by elected officials.

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