California Senate Bill (SB) 399 prohibits an employer from subjecting, or threatening to subject, an employee to adverse action if the employee chooses not to attend an employer-sponsored meeting or receive communications from the employer, "the purpose of which is to communicate the employer's opinion about religious or political matters."
asserted
purpose → prohibit → matters
The court concluded that the law restricts speech and not just employers' disciplining employees:
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law → conclude → employees
It is true that SB 399 facially forbids only the act of "subject[ing], or threaten[ing] to subject, an employee" to discipline for declining to attend certain meetings.
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SB → forbid → meetings
But the law only applies to employers who engage in expressive activity at those meetings: namely, "communicat[ing their] opinion.
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who → apply → opinion
It does not, for example, prohibit taking adverse action against employees who decline to attend a meeting, the sole purpose of which was for employees to fill out their annual tax paperwork.
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employees → prohibit → paperwork
It prohibits adverse action only when the meeting's purpose was for the employer to engage in expressive activity.
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employer → prohibit → activity
Thus, the First Amendment applies.
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Amendment → apply → ?
Our conclusion accords with the Eleventh Circuit's recent decision in Honeyfund.com, Inc. v. Governor (11th Cir. 2024).
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conclusion → accord → .
In Honeyfund.com, employers challenged Florida's Individual Freedom Act [part of the Florida Stop W.O.K.E. Act -EV], which forbade subjecting "any individual, as a condition of employment," to "training, instruction, or any other required activity" endorsing certain ideas [related to race, sex, or national origin -EV].
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which → challenge → race
As California does here, Florida defended the law as "a ban on conduct because only the meetings are being restricted," not the underlying speech.
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meetings → do → conduct
Our sister circuit rejected Florida's conduct-not-speech defense because the only way to know if the law had been violated was to examine the message conveyed at the meeting.
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law → reject → meeting
Because "the conduct regulated depend[ed] on—and [could not] be separated from—the ideas communicated," Florida's law was "functionally a regulation of speech" implicating the First Amendment.
uncertain
law → regulate → Amendment
If an employer disciplines an employee for failing to attend an employer-sponsored meeting, the only way to know if SB 399 was violated is to "examine the content of the message that is conveyed" at the meeting.
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that → discipline → meeting
We must ask: did the employer express an opinion on political or religious matters?
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employer → ask → matters
disciplinary action—"cannot be identified apart from the disfavored speech"—the employer's opinion on political or religious matters.
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action—"cannot → identify → matters
Further, that California's law (unlike Florida's law) is viewpoint-neutral does not make it content-neutral.
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it → make → law
Because employers are forbidden from taking adverse action only if they communicate certain messages at the underlying meeting, the law inevitably singles out employers based on their expressive activity….
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law → forbid → activity
The court then concluded the law was content-based ("because it applies only when the employer has discussed certain topics: politics and religion") and speaker-based (limited to speech by employers), and was therefore unconstitutional unless it was narrowly to a compelling interest.
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it → conclude → interest
And it held that the law likely couldn't be justified by an interest in protecting a "captive audience":
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law → hold → audience
The State may protect the unwilling auditor's privacy "by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content."
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State → protect → content
As discussed above, that is not what California did here: SB 399 singles out political and religious speech for regulation.
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SB → discuss → regulation
Thus, California, "acting as censor, undert[ook] selectively to shield the public from some kinds of speech on the ground that they are more offensive than others."
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they → act → others
The Supreme Court has said that "[s]uch selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, or the degree of captivity makes it impractical for the unwilling … auditor to avoid exposure."
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auditor → say → exposure
In such circumstances, California's ability to limit "discourse solely to protect others from hearing it is … dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner."
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interests → limit → manner
California fails to identify a single case where a content-based restriction has been upheld because employees were deemed a captive audience or had their substantial privacy interests invaded in an essentially intolerable manner.
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interests → fail → manner
Instead, the State points to cases upholding speech limitations on public transit, at healthcare facilities, and on school premises, which referred to commuters, patients, and students as captive audiences.
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which → point → audiences
California contends that employees are equally captive because they are economically dependent on their employer and risk losing their job, with its pay and benefits, should they refuse to listen to their employer's speech.
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they → contend → speech
Thus, California argues that employees need as much protection from unwanted speech at work as commuters on public transit, patients at healthcare facilities, and students at public schools.
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employees → argue → schools
California's argument goes too far.
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argument → go → ?
Both the Supreme Court and our Court have referred to "captive audiences" only when the government acts as a proprietor or in the context of content-neutral time, place, and manner restrictions.
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government → refer → restrictions
Neither court has relied on a "captive audience" theory to identify a compelling interest sufficient to uphold content-based restrictions on nongovernmental speech in a nongovernmental setting.
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court → rely → setting
Nor, as far as we can tell, have any of our sister circuits, with the Eleventh Circuit directly rejecting such a theory.
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Circuit → tell → theory
A brief review of the key cases on which California relies demonstrates the point.
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California → rely → point
The first is Lehman v. City of Shaker Heights (1974), in which the City of Shaker Heights sold advertising space on its public transit vehicles but refused to accept paid political advertising….
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City → sell → advertising
A four-Justice plurality … conclud[ed] that the city, operating "in a proprietary capacity," had decided to limit the kinds of advertisements displayed based on several prudential factors.
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city → conclud[e → factors
One of those factors was "the risk of imposing upon a captive audience"—commuters.
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One → impose → audience"—commuters
To the plurality, the commuters' "captivity" was merely a prudential consideration in the city's decision to not allow certain advertising on its property.
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captivity → allow → property
In his solo concurrence in the judgment, Justice Douglas also described commuters as a "captive audience."
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Douglas → describe → audience
That was relevant to his analysis because he believed that the commuters' right "to be free from forced intrusion on their privacy preclude[d] the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience."
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right → believe → audience
To Justice Douglas, the commuters' "captivity" limited the city's ability to turn its transit vehicles into a First Amendment forum.
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captivity → limit → forum
…and 14 more, not listed.
The Aporia