Putting Words in Their Mouths

On June 26, CIR filed a reply brief in support of its motion for a preliminary injunction to stop the enforcement of Section 3550, a California law that prohibits public employers from criticizing public employee unions.  CIR is challenging Section 3550 as unconstitutional, but while litigation is in progress, public officials in California are subject to the law’s speech restrictions.  Unless an injunction is granted, public employers will continue to face the threat of sanction if they criticize public employee unions during the period of litigation.

The PERB has challenged CIR’s motion, taking the extreme view that the First Amendment does not protect the speech of elected officials in their capacity as agents of a government entity because government entities have the right to control what is said on their behalf.  CIR’s reply demonstrates that, far from mere government agents appointed to deliver particular governmental messages, elected officials are representatives of the people, and as such, their free speech is entitled to strong First Amendment protection.  Accordingly, a legislature may not simply regulate what elected officials can and cannot say.


ection 3550 was enacted to prevent public employers from making statements that could discourage union membership.  Section 3550 originally was passed in 2017 in anticipation of the Supreme Court’s consideration of Friedrichs v. CTA. It was re-enacted in 2018 as “declaratory of existing law” in anticipation of the Janus v. AFSCME ruling that compulsory public employee union dues are unconstitutional.  The law was intended to counteract efforts to encourage public employees from leaving the union.

Section 3550 empowers union officials to file unfair labor practice charges with the Public Employment Relations Board (“PERB”) 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.  Not surprisingly, school boards and local municipal governments have advised elected officials to steer clear of public comments on union-related issues to avoid triggering a complaint.

Meanwhile, 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.

CIR and CPC represent 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:

  • A school board member reports that he no longer feels free to inform his constituents about union negotiating positions on issues that have significant consequences for his school system’s budget, including salaries, benefits, and seniority rules.
  • A city council member was threatened with a Section 3550 complaint because she posted to Facebook a letter questioning union support for a candidate to city council.
  • In one small community, a school board member reports that he feels that he may no longer may be able to engage in informal discussions with his constituents about matters that touch on union policies for fear of triggering a Section 3550 charge.
  • An elected official who ran on a platform of countering union demands for increases in salaries, pensions, and other benefits was troubled to learn that he might trigger a 3550 charge if he shares with his constituents and employees the basic fact that increased benefits for union employees would mean lower salaries for all. Nor can he mention the fact that union seniority policies tend to disfavor younger workers. Publicizing either fact might well deter or discourage union membership.
  • One official reports that he cannot inform employees that they have a First Amendment right to leave their union — or not to join one at all — without having to pay further mandatory dues.  Simply restating the Supreme Court’s 2018 decision in Janus v. AFSCME could trigger a charge of an unfair labor practice because it could “deter or discourage” individuals from membership.
  • Several elected officials report that Section 3550 makes it difficult to respond to constituents’ questions posed at regular public meetings since they cannot know in advance what questions will be asked. Once at the podium, they cannot consult with counsel to determine which answers might later be construed as “deterring or discouraging” union membership.  As a result, they have been advised to avoid discussion of many issues relevant to their constituents’ questions.
  • The California School Boards Association (“CSBA”), a nonprofit education association representing the elected officials who govern public school districts and county offices of education, issued a legal advice letter counseling school Board members to be mindful of their communications with the public and school employees, particularly when discussing the Janus decision or making comments that could be construed as deterring or discouraging union participation

Why Section 3550 is Unconstitutional

It is well-settled that the federal and state governments may not favor or disfavor speech based on the point of view being expressed.  Yet Section 3550 clearly punishes one side of the debate about union policies.  It imposes penalties on speech that the unions consider unfavorable while leaving untouched speech that is supportive of the unions.

It is also well settled that speech restrictions must make clear what speech is covered so that individuals can reasonably determine in advance what is out of bounds.  A vague or overbroad speech restriction inevitably chills permissible speech since individuals must err on the side of restraint.

Section 3550 is both vague and overbroad.  First, it is impossible for a public official to know in advance which statements might “deter or discourage” union membership.  A public official can trigger a penalty for a purely innocuous statement that the PERB later determines had a deterring or discouraging effect.  As a result, Section 3550 encourages public agencies to instruct elected officials to refrain from any statement that might possibly discourage union membership, including statements that are clearly protected by the First Amendment.

Second, Section 3550 is overbroad.  It is clear that some, perhaps much, speech that deters or discourages union membership is protected by the First Amendment.  Many important public issues concern union policies, and public officials have a legitimate, protected right under the First Amendment to discuss those issues fully and candidly without fear of legal retribution.

Section 3550 Silences Discussion of Important Issues of Public Concern

For example, Section 3550 prevents elected school officials from criticizing union positions on issues like tenure, class size, or school assignment policies — positions with which many employees disagree.  Each of these issues is the subject of longstanding debate among American educational professionals, yet full discussion of them might well deter or discourage some employees from joining or remaining in the union.

Plaintiff Rodger Dohm

In addition to school officials, Section 3550 interferes with the speech of elected officials of municipal governments.  Discussions of the budgetary consequences of union pension policies — which  are critical to the budgets of many local municipalities — could  trigger an unfair labor practice complaint.  While proponents of union positions have a free hand in the discussion, those who simply state facts such as that union pension demands mean fewer dollars for parks, libraries, and other local priorities could trigger legal scrutiny and possibly liability.

Section 3550 reaches speech well beyond bread and butter union issues like educational policy or pension costs.  It also chills speech on such issues as sanctuary city laws and even same-sex marriage — two areas where some large public employee unions have well-defined views.  A public official who merely publicizes union positions on these issues — positions likely controversial with many public employees — could  trigger a Section 3550 complaint for deterring or discouraging union membership.

Section 3550 Violates Well Accepted First Amendment Rights

The First Amendment accords a high level of protection to the speech of elected public officials, which is central to their representative and legislative duties.  Public officials have the responsibility to represent their constituents and to explain publicly what it is that they advocate.  When public officials cannot speak freely on issues of political concern, the democratic process is impaired and the public suffers as a result.  A law that burdens speech of elected officials based solely on the point of view expressed cannot survive First Amendment scrutiny.

Moreover, assuming the state has any legitimate interest in suppressing speech critical of public employee unions, any such law must be narrowly drawn and make clear exactly what speech is prohibited.  Prohibiting any speech that “deters or discourages” union membership is either so vague as to invite arbitrary enforcement or so broad as to prohibit a wide range of clearly protected speech.

The suit was filed in federal district court for the Southern District of California.  It asks the court to enjoin enforcement of the law on grounds that it violates the First and Fourteenth Amendments of the U.S. Constitution. A victory in Barke v. Banks will re-affirm First Amendment protections for the expression of differing views, particularly by elected officials.


Case Status: Pending

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