Lawmakers in at least 13 states besides California have put so-called “captive audience meeting” bans on the books. To varying degrees, these laws prohibit businesses from compelling workers to attend meetings meant to discuss employers’ “religious” or “political” opinions, and in multiple states, plaintiffs’ challenges have been dismissed on procedural grounds, so those courts haven’t weighed in on whether these bans are constitutional.
That’s not the case in California. Last week in California Chamber of Commerce v. Bonta, the Ninth Circuit affirmed a lower court’s preliminary injunction blocking SB 399, the state’s ban on these meetings. The appeals court did so on the grounds that this law likely violates employers’ freedom of speech under the First Amendment because it singles out employer speech on politics and religion. This lawsuit was brought by the California Chamber of Commerce and other business groups, and this ruling is the first U.S. appeals court decision to address the constitutional issue.
What the California law tried to do
Effective Jan. 1, 2025, SB 399 prohibited employers from threatening, disciplining, or terminating workers who chose to skip meetings where employers shared opinions on political or religious matters. Workers who skipped these meetings while on the clock would still be paid, and employer violations would result in a $500 penalty per worker, per violation. Additionally, workers could sue employers for their own damages, and punitive damages would be on the table.
In defining “political matters,” SB 399 refers to “the decision to join or support any political party or political or labor organization.”
Why strict scrutiny applied to this case (and why it matters)
The Ninth Circuit pointed out two problems with SB 399. First, since this law targets employers’ discussion of particular subjects (i.e., politics and religion), it’s a content-based law. Second, SB 399 only applies to employers’ opinions, so it’s speaker-based. The court acknowledged that the law is viewpoint-neutral, meaning that it doesn’t favor one side, but that alone “does not make it content-neutral.”
From there, the Ninth Circuit cited Supreme Court precedent, Reed v. Town of Gilbert, while pointing out that SB 399’s content-based nature makes it “presumptively unconstitutional,” and therefore the law is “subject to strict scrutiny.” It followed that the law could survive only if the state “proves that [it is] narrowly tailored to serve compelling state interests.” California argued that protecting a “captive audience” qualifies as such an interest, and that workers are “captive” because they depend on their employers for pay and benefits, which they risk losing if they don’t attend mandatory meetings.
The Ninth Circuit wasn’t buying it: “California’s argument goes too far.” The court added that the state “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.”
Without getting too deep into the legal weeds of the court’s analysis, it’s enough to point out that strict scrutiny is the hardest level for a law to survive. That standard puts the burden on states to prove that the law is narrowly tailored to protect a compelling state interest, which California failed to do here. Since other states designed their “captive audience meeting” bans similarly regarding employer speech, those bans would likely face strict scrutiny too, and states trying to defend their laws would likely end up using the same argument that failed in California.
Where other states stand with these laws
The California case is so important because it is the only recent challenge to these meeting bans that’s been heard on the merits. In other states where challenges have been filed, those lawsuits were dismissed before the constitutional issue could be addressed. Those states include Minnesota, where a suit was dismissed by the Eighth Circuit, and Connecticut, where a federal judge found that although a business group lacked standing, the state’s law was “materially identical” to California’s law. A Seventh Circuit panel has expressed skepticism about whether the threat of enforcement of Illinois’ law is credible against employers after a district court dismissal.
Meanwhile, states are still enacting these laws. Delaware’s ban, House Bill 84, was signed into law on Sept. 30 and immediately went into effect. On Oct. 1, Maryland’s law went into effect with particularly draconian penalties of up to $10,000 for first violations and $25,000 for subsequent violations. Maryland’s law also adds job applicants, not merely current workers, to the list of people who can’t be required to attend these meetings.
The California case isn’t over yet: What about NLRA preemption?
The Ninth Circuit based its ruling completely on First Amendment grounds, and it further declared, “We need not (and do not) address preemption.” The business groups also argued that the NLRA preempts SB 399. A ruling on preemption would have given employers a second ground for blocking these laws in the Ninth Circuit, so it’s discouraging that the Ninth Circuit opted not to affirm (or reject) the district court’s finding that SB 399 was likely preempted by the NLRA.
Still, the preemption point could be settled in the district court. First, California could ask the Ninth Circuit to rehear the case or ask the Supreme Court to hear it. If California doesn’t do that, or neither of those attempts succeeds, this case would continue in the district court, and California can’t enforce SB 399 unless the state overcomes both the First Amendment and preemption arguments.
So, are other states next?
Not yet. This published Ninth Circuit opinion means that the court’s First Amendment reasoning must be followed by federal courts in Alaska, Hawaii, Oregon, and Washington. Currently, those states all ban these meetings, so this Ninth Circuit ruling would have power if employers in those states choose to bring lawsuits. For federal courts in other circuits, the Ninth Circuit’s ruling can be persuasive but not binding. We will be watching for more on Connecticut’s law, which, as mentioned above, a federal judge has already called “materially identical” to California’s law.
The trickiest hurdle is persuading courts to hear these cases on the merits. That happened in this California case, but challenges have been dismissed in other states where courts found no real threat of enforcement against employers. California never disavowed enforcement of SB 399, and the Ninth Circuit pointed to employees’ ability to sue employers, including for punitive damages, as a crucial part of that threat. Minnesota’s law is also enforced through employee lawsuits, but the Eighth Circuit only looked at whether state officials would enforce that law.
It’s important to stress that these laws stay on the books unless challenged and a court blocks them. But as various states’ cases have shown, those challenges only go forward if a real enforcement threat exists. That’s what the California plaintiffs were able to show, and that’s why their lawsuit has gotten this far. And now, we wait for more court developments.
