Washington agency boots Santa-clad right-to-work advocates

The Washington Department of Ecology allows public employee union representatives to communicate with workers in the building's public lobby but enacted a new policy that bans the Freedom Foundation, right-to-work advocates who also want to communicate with workers in the lobby about their First Amendment rights related to union membership. Allowing the union access to a public space to discuss union membership while barring other speakers from the same place to discuss the same topic is viewpoint discrimination that violates the First Amendment.

Public-sector unions and right-to-work advocates have long battled for the allegiance of government workers. In Janus v. AFSCME Council 31 (2018), the U.S. Supreme Court sided with workers' right to choose whether to join and financially support the unions. Supreme Court decisions are rarely self-executing, however, and Freedom Foundation works to inform public-sector workers about union expenditures and the constitutional right to opt into union membership and dues as recognized by Janus. This mission is critical for the many public-sector workers who are not fully informed of their rights with respect to union membership.

Janus opponents, however, were well-prepared to enact and implement evasive measures to ensure that public employee unions, and only public employee unions, are in a position to inform workers about their rights (or not) and to decide what qualifies as consent to join and pay dues. Some states -- most notably California and Illinois -- passed union-backed laws making it illegal for public employers to even speak to workers about the First Amendment rights without a union-approved script.

Washington's approach has been less overt but no less effective in restricting right-to-work information from reaching its workforce. For example, it passed a law that forbade anyone from using public records act requests to obtain the contact information of public workers -- and exempted public employee unions. A split panel of the 9th U.S. Circuit Court of Appeals upheld that law, and the U.S. Supreme Court denied a petition for writ of certiorari last week, albeit with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicating that they would have granted the petition.

The state Department of Ecology took a different tack to prevent its workers from understanding their rights. During the Christmas holiday season, Freedom Foundation canvassers in Santa Claus costumes visited state government building lobbies to hold signs and hand out holiday-themed materials with the local union on the "Naughty List" and explaining how workers could retain more of their take-home pay by declining union membership.

At Ecology, the union took a dim view of this festive display, which consisted of one or two people in the generous, 11,000-square-foot lobby. Subsequently, in response to Freedom Foundation's visit, the department revised its lobby access policy to forbid visitors who were there "to promote or conduct commercial enterprise" or "to promote or solicit for an outside organization or group." Although Freedom Foundation's communication with employees neither promoted nor solicited for any outside organization or group, Ecology relied on this new provision to exclude Freedom Foundation from the otherwise public areas of the building.

Ecology interprets the policy to permit other private speakers to express themselves in the building's public lobby and cafeteria. And most notably, Ecology permits the public employees' union to speak in the lobby on the same topic that Freedom Foundation desires to speak about, but from a different and politically favored perspective.

Freedom Foundation challenged the policy in federal court, but the district court held that the policy was reasonable "as a matter of law" because the lobby was a nonpublic forum. A split panel of the 9th Circuit upheld the restriction, even as it acknowledged that Freedom Foundation was barred while union representatives were permitted to address employees in the lobby. The panel held that the union's status as the workers' exclusive representative justified the differential treatment.

Judge Consuelo Callahan dissented. Noting that "Governments rarely target a speaker's viewpoint outright," she agreed that the circumstantial evidence strongly suggested that the policy was intended to muzzle Freedom Foundation's speech, raising a concern that Ecology's revised policy was "a façade for viewpoint-based discrimination." Ecology admitted that it adopted the policy "in direct response" to Freedom Foundation's advocacy and allowed the union's unrestricted use of the same space to discuss "the very topic on which Freedom Foundation sought to leaflet." Under these circumstances, Judge Callahan said there was "sufficient smoke" to suggest a viewpoint discrimination fire.

Freedom Foundation is asking the U.S. Supreme Court to take the case, Freedom Foundation v. Washington Department of Ecology et al. Viewpoint discrimination violates the First Amendment in any forum. Courts have little patience for constitutional violations occurring under the veneer or pretext of legitimate government action. To determine whether a regulation is a façade or pretext for viewpoint discrimination, courts must consider the circumstances of the speech restriction's enactment and implementation. Courts need not -- and should not -- turn a blind eye to the reality that the state and union are acting jointly to suppress information that enables workers to exercise their constitutional rights. The courts, in this case, failed to do so, leaving Santa out in the cold. 