California’s New Union Gag Order Violates 1st Amendment
Terry Pell of the Center for Individual Rights and his plaintiff Jeffrey Barke on California’s unconstitutional Section 3550
Almost exactly two years ago, I did a premature victory lap in celebrating the pro-free speech outcome in Janus v. AFSCME — a Supreme Court case that granted workers the right to opt out of union dues when the union’s actions conflicted with their values. The myth of Janus, the two-faced God, then seemed like a fitting metaphor for the changing make-up of the court, but two years later the myth of the many-headed hydra feels more appropriate. It turns out Janus was only the beginning of the battle.
A new case, Barke v. Banks, has reignited the debate over the speech rights of public employees. This time, the question is whether non-union public employees — including elected officials — can openly criticize unions or even say anything about them at all. California lawmakers, beholden to Big Labor, say “no.” In response, the Center for Individual Rights and the California Policy Center moved for a preliminary injunction against California law Section 3550, which seeks to regulate what elected officials can and cannot say. This includes, for example, informing teachers that the outcome in Janus means they no longer have to pay union dues.
“It is well-settled that 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.” — Barke Factsheet | The Center for Individual Rights
Terry Pell is the President of CIR and lawyer for Jeffrey Barke — a medical doctor with a long history of public service, including School Board member and most recently, a Director of the Rossmoor Community Service District. Barke has been outspoken on a number of issues, from pensions to COVID restrictions, and is fighting back against the “gag order” enforced by Section 3550.
The case has only become more important as teacher’s unions across the state are tying school re-openings to absurd political demands that have nothing to do with education. Will our elected officials be able to stand up and speak their minds, or will California’s powerful public sector unions get their way again?
Don’t miss it.
TRANSCRIPT
Bob Zadek: Welcome to the Bob Zadek show. The longest running live libertarian talk radio show in all of radio. Thank you so much for listening this Sunday morning. We are this morning and always, the show of ideas, never the show of attitude.
As a first for my show this morning, I’d like to start off with a movie review of sorts. One of the greatest American movies ever made, in my opinion, is a movie called “Twelve Angry Men,” made in the fifties. It was made by Henry Fonda. He funded it. It had a budget of $700,000. If you want to find one movie that is supportive and respectful of American values, besides being a beautifully written movie, this is the movie to watch. The whole movie takes place in a jury room.
In the movie we have 12 jurors who are asked to decide the fate of a minority young man who is accused of committing a murder. And the jurors are a wonderful cross section of American men from various walks of life. When the movie starts, the jurors are pretty convinced that the murder was done, and they take a first vote. It is 11 to 1in favor of conviction, which would have been death to the alleged perpetrator. Some of the characters are strongly biased against the minority alleged perpetrator. Others are more neutral, but it’s 11 to 1. When some of the jurors start to express their opinion as to why they want to go slow, the more bigoted of the jurors start to say “No, we all know he’s guilty.”
Some of the jurors in the middle, one in particular, a kind of a meek middle aged man says the words which are the theme for this morning show. He speaks up and says “No, no, let this man speak. I want to hear. Let this man speak.” And I won’t be a spoiler. I won’t tell you the plot. You probably can guess, but it’s those words, “Let this man speak” — implicit in that phrase is that in order for fairness, democracy, and for civilization to go forward, speakers must have the right to speak. More importantly to this morning’s show, listeners have a right to learn what the speaker wants to say. Once we start denying the speaker the right to speak, and the listener the right listen, we are doomed.
This show is about the government preventing speakers from the right to speak about important issues and the listeners the right to hear. With that introduction I’m delighted and proud to welcome to the show this morning, Terry Pell and Jeffrey Barke. They will tell us a story of what is going on in the American labor movement, the result of which is an existing and growing body of law that prevents public officials from speaking about issues that they think the voters must know about, and I really mean prevent them from speaking, and in this case it is the relationship between public service workers and public service unions. We will learn about a trend which is going on in California and throughout the count and we will learn about something even more sinister or perhaps as sinister, LPA. Labor peace agreements. If ever there was a misnomer it is that. With that weighty introduction, I’m delighted to welcome Terry Bell and Jeffrey Barke to the show.
The Effect of AB3550 on Free Speech
Bob Zadek: We are going to start with a piece of California legislation that was effective in 2017 while the Janus case was working its way through the courts. Let’s start with Janus. Tell us how that fits in with California AB3550 and introduce it to this morning’s topic.
Jeffrey Barke: Bob, thank you so much for having me on. Mark Janus was the plaintiff and this case went all the way to the Supreme Court. The holding was that public employees that are in unions, as a condition of employment, were no longer required to join a union. The reason why I’m involved is because I was an elected school board member for 12 years. Like every school district in Orange County and in California, with very rare exceptions, they’re all unionized.
The Supreme Court said that if you’re a member of the union, you no longer have to pay union dues as a condition of being an employee of that particular school district. Now that’s fine. We celebrated that. We thought it was the right decision. At the same time, a section was passed by the California legislature and signed into law, AB3550, which said that elected officials need to tread very lightly. They are not allowed to have a conversation that could potentially deter or discourage a member from joining the union. After the Janus decision, my idea of being on the board was that I just wanted to simply educate and have the board educate our employees about the decision that was just passed.
Most teachers are hardworking people. They’re not involved in politics. They’re not going to pay attention to Supreme Court rulings, et cetera. So we wanted to just simply tell them what happened. We wanted to make them aware that as an employee of our district, Los Alamitos Unified, you are no longer mandated as a condition of employment to be a member of the union. On average teachers pay about a thousand dollars a year for the union and unions are involved, as you know, Bob, with a whole variety of activities, including political activities, where they support candidates and do this, that, and the other, and advocate for one policy over another.
Bob Zadek: Jeff, I just want to interrupt for a second, just to add a little bit of context. It sounds like the Janus case was simply an economic case. You didn’t have to pay union dues and you couldn’t be compelled to pay union dues. It was really a free speech case because the Supreme Court has long held that if you’re compelled to give money to support an organization that is expressing a political view, which you may not agree with is compelled speech against your will. Compelled speech is exactly as prohibited as his denial of speech. So the Janus case is not a dues case, it is a free speech case, and that’s why it was so important. That’s why it went to the Supreme Court.
Jeffrey Barke: Absolutely. The Union is free to use its dues for political speech and employees now have the rights to opt in or not to that participation by their either dollars to that free speech. That is what the Janus case was about. Ultimately, the gag order that was put on by the legislature stated that if you’re an elected official, you no longer have the right to be able to speak freely about the Janus case or about any other union activity because you could be hit with an unfair labor practice lawsuit, whatever that is. I’m not an attorney. None of my board members were attorneys. But it seemed onerous that if I bumped into somebody at the supermarket and we had a conversation, I might be sued and the board might be sued and the district might be sued for unfair labor practice.
We would be using our very limited general funds to now defend a lawsuit. So I have to now be careful about my free speech or I could end up with a lawsuit against my district for something that I said, and I don’t think that’s right. I can’t imagine anybody believing that the government should be allowed to tell me as an elected official, what I can say or not say to my constituents. That’s just wrong.
Bob Zadek: To drill down to a level that everybody can emphasize with and understand. You are here, a volunteer. You are certainly acting as a volunteer to serve your community by serving on a school board. But of course, this could be any governmental function at the lowest level or the highest level. Your moral and legal commitment is to do the very best job in voting intelligently in the interest of your constituents. If an issue comes up, you want your constituents to understand the issue and understand why you are taking the position.
Your constituents can decide. This is about getting information to the voters. This is about you being able to speak without fear of terrible repercussions in this case for his school district. Voters have to have information. Imagine if you are required and you are denied access to one side of an argument. So now it’s not the freedom to speak. It is the freedom to listen that is being taken away. And everybody needs to be able to listen to have access to information.
Practical Effects on Board Members of the Gag Order
Bob Zadek: Now Jeff, this legislation seems kind of neutral. Tell us how your day to day interactions with your friends and neighbors are affected by this legislation?
Jeffrey Barke: It is the law of the land, at least in California. I’m a physician. I like to put this in terms of my practice. Imagine that you come in and we were talking about a prescription that I was going to give you for a particular condition. When I do that, normally I would go over the benefits of this medication and the potential side effects of this medication. But only now under this law, if we use the medical equivalent, I would be allowed to tell you what the benefits of this medication are, but I would be prohibited from telling you about the potential side effects of the medication. So with this ruling about the Janus law, I could have a conversation about what the upside of being in a union and the various functions of the union and what they pay for and what they don’t pay for. But I would not be able to discuss the consequences for joining in union participation. I wouldn’t be allowed to do that. I believe it is an infringement of my free speech.
Most of my conversation with my constituents isn’t in the formality of a board meeting; it’s about being out in the community. I’ll go to the supermarket and bump into somebody that will have a question about the ongoing activities of the district. I will now be prohibited and very hesitant to talk about them about anything that’s going on. I’m not a lawyer. I don’t know how to actually read this statute and interpret it based on my speech.
Maybe Terry would be available just to go around with me when I’m out shopping so you can tell me what I can say and not say, but that’d be an awfully expensive grocery trip. So that’s how it affects me on a day to day basis. I bump into folks all the time that voted or didn’t vote for me that have questions about the school district and the various activities that are going on. What are we building? How are we spending money? How are we hiring?
I have to be extra careful because I don’t want to invoke some sort of unfair labor practice lawsuit, whatever that is. We were told by the council as part of our school board that we could not communicate with our teachers and classified staff and so forth because we were worried that we would be sued and we didn’t have the funds and didn’t want to use general fund money. We want that to go to the kids, not to the lawyers. So we were advised not to have a conversation with our employees about their rights under Janus. I think that’s the wrong thing to do right now.
Bob Zadek: Terry is an attorney and he is counsel for Jeff in this lawsuit challenging 3550 in California. The lawsuit is in its early stages right now. Terry is president of CIR, the center for individual rights, which is a nonprofit public interest law firm. These public interest law firms that are working so hard to protect our rights. These are rights that cannot be protected by individuals. They have to be protected by groups such as CIR.
Now Terry, without intruding on attorney-client privileged information, tell us the kind of advice you would give to school board members. When the school board is confronted with an attempt by a union to unionize the teachers or the support staff or the admin staff in the school district. And now we have a bunch of volunteers, a citizen school board members who have to decide what should be our position with the union. And of course their constituents have never had an attempted unionization. So they don’t know the pros and cons. So here we have citizens hungry, the nation’s school board members who have studied the issue and want to share what they have learned with their constituents.
Terry, as you “play act” as counsel for a hypothetical school board, or as counsel for Jeff’s school board, what advice are you compelled to give them in terms of the everyday human to human interaction discussing this issue, which is new to a school district?
Terry Pell: Well, as a lawyer, the first thing I would do is read the language of 3550, which says that elected board members cannot say anything that would “deter or discourage’’ someone from union membership. So as a lawyer, I would ask what could deter or discourage someone from joining the union? And I would quickly realize that almost anything could deter or discourage someone. Just telling someone that they are not compelled to pay union dues could deter or discourage someone from joining the union. If you tell somebody they don’t have to pay these dues, they might decide to leave the union and stop paying the dues. So even factual statements about a ruling of the Supreme court are off-limits here.
If I were an attorney, I would advise the members of my board to refrain from saying anything that might cast the union in a bad light, or might suggest to someone that maybe they don’t want to be a member of the union or suggest that the union is involved in some sort of controversial position. For example, the California Teachers Association supports the sanctuary city laws. If the members of the board were to point that fact out, it might deter or discourage some teachers and some other employees from joining the union. So the problem here is that the law is so vague. The only reasonable advice an attorney could give to elected officials is to refrain from saying anything. What this does is create a legal cloud over anyone who wants to criticize the union along factual lines. Just seeing what the union’s position is could create liability for the school.
On the other hand, elected officials who support the union are completely free to say whatever they want. There is a double standard here. If you favor the union, you’re free to say whatever you want. If you disagree with the union or want to point out some problems with the union’s policies, you have to be very careful. The odds are your board attorney is going to tell you to be quiet because it’s just not worth the tens of thousands of dollars it would cost to defend against an unfair labor practice.
The LA Teacher Unions Demands Before Returning in the Fall
Bob Zadek: There’s a battle around the country and great confusion as to whether to reopen schools given the pandemic in the fall. That is an ongoing debate in the public sphere. There’s enormous confusion and people and parents and teachers and elected officials are trying to figure out what to do. That’s the background in Los Angeles. In the past couple of days one of the most powerful teachers unions in the country has announced that they will not go back and teach in the fall unless the school agrees to equal pay, which includes medicare for all, which includes, income equality and adherence to the green new deal. Yes, my friends, that is the union’s demands. Now imagine being in a school district in Los Angeles, and that’s what you are asked to do, and you cannot speak out in opposition. Look at the profound imbalance in power given by statute.
We have the unions who have legislation basically preventing members from speaking. Because Jeff is being mindful of the budget and doesn’t want to be a pariah and doesn’t want to harm the school district, he keeps quiet. Jeff, you are in the second biggest school district in the country and the union wants the Green New Deal and economic equality in Afghanistan, and you cannot speak out in opposition to it because your school district will get sued. One must ask anybody who wants to stifle free speech — what are they afraid of? I will say my point of view, they will say theirs. The voters will decide. That’s what the unions and anybody who seeks to stifle free speech is afraid of. Am I getting too alarmist or is that pretty much what’s going on now in jurisdictions that enact these gag bills?
Terry Pell: You are exactly right. There have been laws on the books for many years that prohibit public employers from employing threats or coercion against employees who might want to join the union. Everybody accepts that. But the union isn’t really afraid of actual threats and coercion anymore. What they’re now afraid of is speech. They’re afraid of an honest debate. They’re afraid of facts being able to be reported that might put the union in a bad light. So they’ve gone beyond threats and coercive behavior, now they’re trying to end speech that’s critical of the union. It makes it difficult to discuss a wide range of issues.
The examples you just mentioned are clear examples where a public official and a school district that’s trying to reopen and is faced with union demands like the ones you just mentioned is under an obligation to tell the constituents what’s at stake here and what the union is proposing and to point out the costs of the union’s demands on the education of the students in his district. Yet, if he does that, he could trigger an unfair labor practice. One side of the debate is shut down. The First Amendment does not permit the government to play favorites among viewpoints. The government cannot pass laws that favor one side of the debate versus the other. This law violates the principle of viewpoint neutrality.
Bob Zadek: One side of the political debate has used the control of free speech to put their thumb on the scales. Jeff, who is a practicing physician, mentioned in his hypothetical the doctors that are not allowed to explain to a patient the downside of a prescription or procedure. That actually is happening. Some of you out there may recall that Florida compelled doctors to counsel patients to counsel patients on how guns are stored in your home. Those who propose to limit use of guns went to the physicians. There is a movement afoot to require attorneys to violate the attorney-client relationship and to go to law enforcement if their clients are engaging or are considering engaging in criminal acts.
That has always been the law to some degree. If another person’s life is in danger or the client’s life is in danger. But never has it been extended to economic crimes before. So again, that is compelled speech. So those people who would seek to tear down some of our basic values have realized that limiting free speech is a wonderful tool in their toolbox. This is yet another example of not allowing all points of view to get into the marketplace so voters can decide because voters know best, but rather to deny voters the information. The legislature thinks that us voters cannot be trusted with the information that our elected officials would otherwise want to share. It is your constituents who are the real victims of this legislation is it not?
Jeffrey Barke: Well, ultimately my constituents have to decide whether they want me re-elected or elected in the first place. And as a voter, I make those decisions based on the policies and the information that I get from the people that I’m voting for. I listen to them talk about the issues and so forth. And in this case, I’m not really allowed to talk about these issues. I may have strong opinions that are pro or anti-union, but I don’t have the ability to actually share truthfully my opinion so my constituents can make a decision. The teachers union in Los Angeles want the police defunded and an elimination of all charter schools because of COVID-19. Neither of which has anything to do with COVID-19.
As a school board member, to get re-elected, I need to share my opinion. If I do share my opinion and it’s perceived as anything that would deter or discourage someone from joining the union, then we could be sued as a board and as a district. We were advised basically to shut up — don’t make any comments about the Janus decision. Be extraordinarily careful about what you say or we could invoke an unfair labor practice lawsuit and that could be detrimental and devastating to our district because we’re on a tight budget. The last thing we need is to start paying attorneys, as opposed to putting that money in the classrooms to benefit the children.
Bob Zadek: What are the types of decisions and deliberations of a school board member you must make now which you can’t even discuss? How are you now prevented from doing your job effectively?
Jeffrey Barke: There’s a Target shopping center target store right up the street. My wife and I walk up there and go shopping there all the time. In Target I’ll bump into a teacher that lives in our district, a bus driver that lives in our district or a parent that lives in our district. We’ll have a conversation, “Tell me about how you’re rebuilding a new gym. What are you doing from a funding standpoint for STEM, science, technology, engineering, and math? How are you guys utilizing a teacher here or there?” Ratios in the classroom of kids, etc. I have to be extra careful because budgetary decisions are supported or not supported by the powerful union. The union will lobby for us to do X, Y, or Z with our money.
We have negotiations with our unions about paying benefits and those monies that go to employees for pay and benefits are monies that we don’t have to do other things with. So as I’m discussing with teachers and parents and so forth, it inevitably comes up. If we give a 5% raise to our teachers, that’s 5% less money in our budget that we can do something else with. Those are conversations we have all the time. Now in the back of my mind, I’ve got Terry or the board attorney saying, “Barkey, be careful, Barkey, be careful, unfair labor practice.”
I’m not an attorney.
I don’t actually even know what that means.
I can’t deter or discourage. I don’t know what that means, actually. If there’s a union person around that hears me talk about these issues I may be slapped with a lawsuit.
Challenging AB3550
Bob Zadek: Now, Terry, tell us a bit about the lawsuit that you have brought. What is the theory of your lawsuit? And as an aside, I was wondering to myself whether Jeff could even tell a constituent about 3550 is and what it does. Is he denied the ability to even mention those four numbers in sequence? So tell us about the lawsuit because it’s an interesting theory, and tell us about who the defendant in the lawsuit is. How did the unions react?
Jeffrey Barke: Well we filed suit in February against the public employee relations board, which is the state agency that’s charged by law with enforcing 3550. The agency determines whether an unfair labor practice has occurred and assesses a fine. We sued them on the theory that 3550 is so vague and difficult to apply in practice that it creates a chilling effect on speech that is protected by the First Amendment.
The speech of an elected representative involved in political debate on important public policy issues deserves the highest level of protection. And traditionally that’s the way the courts have looked at speech of elected officials. That’s what we’re saying here. You can’t hinder an elected official from expressing one point of view under the First Amendment. It is a federal First Amendment case. We brought suit and about a month later, five unions moved to intervene in the suit. The judge agreed with that. And then about three weeks after that, the California attorney general moved to intervene in the suit. What this means is originally the suit was between two parties, our plaintiffs and the defendant. Now involves our party, our plaintiffs and our clients. Now we’re fighting not only the attorney general but five unions.
So what this tells us is that the unions have a lot invested in this law. They’re willing to spend a lot of money to defend it. Even the state attorney general doesn’t agree with which state agency is best able to defend this law. Normally you’re not allowed to intervene in a suit unless you can show the judge that your interests are not properly represented by the named defendant. So here we have this oddity where the state is saying that it doesn’t think its interests are adequately represented by their own agency and it wants the attorney general to be an additional party in the case. So, I guess there’s some confusion among the state agencies about what 3550 means and how best to defend it, which really supports our original view that 3550 is inherently vague.
Not only do our clients have difficulty understanding what it means, but the state has some difficulty understanding what it means and how to defend it. So at any rate, we have a number of additional parties in the case now and the judge has before her our motion for preliminary injunction and the defendant’s motion to dismiss the case. We are at a preliminary stage here. Once she decides those motions, then we will go into discovery and likely have a trial in 2021. So that’s where we are with the case.
Bob Zadek: Look at how much money the state is spending to protect their right to stifle speech. It’s incredible. Citizens of California are underwriting, through tax dollars, a bill which does nothing other than prevent people from speaking and prevent voters from listening and from getting access to information. Nothing could be more obscene than that.
Also, we have the adverse consequence of an unfair labor practice. What is unfair about voicing an opinion? How could that conceivably be unfair, yet that is what the complaint will be. That it was unfair for Jeff to tell his neighbor about the consequences of union membership in his school district. Unfair to who? Unfair to one party, the unions, who are trying to persuade workers to join. How could it be unfair? You’re right. It hurts their efforts, but fair? Unfair. It’s inconceivable to me how you could even use that word. Am I missing something? The claim is that somehow voicing an opinion on a subject which you have information, and you must share with your constituents, is unfair. Is that what is going on?
Terry Pell: That is exactly what’s going on. And I’ll give you one very clear example of how absurd this can get. The agency did investigate an unfair labor practice against one school where the school had given out factual information about the Janus decision. The administrative law judge agreed that the information was correct and that it was factual and that it was relevant, but said that the mere fact that school officials gave this information out was unfair to the union because it might’ve suggested to employees that they should go to the school officials to get information about Janus rather than to union officials. So the idea here is that it’s unfair to the union to have somebody else rather than the union talking about Janus. Employees should only have one source of information about Janus, namely the union. So that’s what one administrative law judge thinks is unfair.
Union Involvement in the Private Sphere: Labor Peace Agreements
Bob Zadek: In preparing for this show this morning, Terry and Jeff introduced me to a concept. Tell us about this related issue. The subject this morning is public officials being allowed to speak in this case about unionization. But the topic writ large of gag orders gets into the private sector as well through something I learned about called labor peace agreements. Tell our friends out there about labor peace agreements and how they affect the private sector and how it is a growing trend.
Terry Pell: Let’s say you’re a developer and you want to develop a certain parcel personal of land that’s owned by a municipality. In some municipalities, there’s a law that requires that before you can develop that land you have to enter into a labor peace agreement with whatever union is going to cover the employees of the project once it’s up and running. If you’re building a theater that is going to employ unionized employees, you have to agree to enter into a labor peace agreement. That basically means that you have to find a union and negotiate a labor peace agreement.
One of the provisions of these labor peace agreements is that the employer agrees to remain “neutral” in any future effort to unionize the employees. So the employer has to give up his First Amendment right to express his or her views about the union. He cannot interfere with the union’s efforts to organize the employees. These are private agreements that vary quite a bit but they very often tend to have these labor peace agreements in them.
This is another example of the union trying to control speech. It’s working through a different means. And as you mentioned, these kinds of agreements are already in place in five or six states on both the West coast and the East coast. This is a growing feature of labor law. More and more states are considering imposing a labor peace agreement requirement on development projects.
