Too often politicians give lip service to the First Amendment’s protection of free speech when it’s speech they like but ignore free speech rights when its speech they don’t like.
The latest example of this hypocrisy is California’s “California Worker Freedom from Employer Intimidation Act,” which prohibits most employers from speaking to their employees about religion and politics in any setting where the employee is required to listen.
Contrary to its title, the Act doesn’t address intimidation at all. Rather, it prevents employers from paying employees to listen to political or religious speech as part of their job and imposes fines on them for doing so. And that clearly violates the First Amendment.
The Act broadly defines “political matters” to encompass not only campaigns and election-related speech, but also speech about legislation, regulations, and the decision to join or support any political or labor organization. It defines “religious matters” as those relating to affiliation, practice, and the decision to join or support any religious organization.
The Act exempts certain entities from the restriction on certain political or religious speech: nonprofit training programs, educational institutions, religious organizations, political parties, and public employers all have exemptions for specific political or religious speech related to their mission or their employees’ responsibilities. Thus, the Act effectively picks winners and losers—and exposes the politicians’ free speech hypocrisy—by allowing some entities to hold mandatory meetings in which political or religious matters are discussed, while preventing everyone else from doing so.
And even though the Act allows employers to communicate information necessary for employees to perform their job duties, it doesn’t define “necessary” or explain how to determine what qualifies as such, leaving employers at risk of violating the Act if what they think is necessary differs from the government’s view. Employers, not the government, should decide what information is necessary for their employees.
There are many reasons why an employer may wish to discuss politics or religion with their employees. An employer may wish to hold a mandatory employee meeting about how pending or enacted legislation will impact their business—for example, how California’s new fast food minimum wage law led to mass layoffs and the replacement of employees with automated services.
The Act is particularly problematic because it restricts speech based on content. Employers can discuss almost any topic in mandatory employee meetings—except politics and religion. The Supreme Court has held that such laws presumptively violate the First Amendment.
And the state has no good reason for the Act’s restriction on political or religious speech. Employees are not harmed or intimidated simply by having to listen to something with which they disagree or aren’t interested in. And what makes politics and religion more burdensome for employees to hear about than any other subject?
Moreover, an employer is still liable under the Act even if its employees want to hear its religious or political views. Many employees seek out employers whose political or religious values align with their own, while others may want to avoid organizations whose views they disagree with. The Act makes it harder for employees to discern those views.
That’s why the Liberty Justice Center, with California Justice Center acting as local counsel, filed a lawsuit – California Policy Center v. Garcia-Brower – challenging the Act on behalf of the California Policy Center—a 501(c)(3) research organization that often holds mandatory staff meetings during which politics are discussed—because the Act violates the organization’s First Amendment rights.
Employers have a right to communicate what they find important with their employees and require those employees to listen as a part of their employment—including discussions about politics and religion. And the government can’t ban speech about certain topics just because politicians don’t like it.
Julie Hamill is Principal Attorney at California Justice Center. Jeffrey Schwab serves as Senior Counsel at Liberty Justice Center.