Each year around the holidays, Washington-based Freedom Foundation sends staff members to the lobbies of state agency buildings. These staffers—dressed as Santa—hand out leaflets that explain state employees’ right to opt out of union dues. Allowed by most agencies, the Washington Department of Ecology in 2017 instead prohibited the leafletting. Even worse is that the agency kicked Santa out of its lobby while allowing other organizations to engage in political expression there—including the union itself. Represented by Pacific Legal Foundation, Freedom Foundation is suing the Department of Ecology in federal court for violating the First Amendment.
Every year, Washington-based Freedom Foundation sends a staff member, dressed as Santa Claus, to hand out leaflets informing state employees of their right to opt out of union fees used to support political causes.
Most state agencies have allowed this. In 2017, however, the Department of Ecology put its foot down and told the Foundation it would not allow leafletting in its building’s lobby.
Undeterred, Freedom Foundation Santa went into Ecology headquarters’ lobby and handed out a leaflet. Within minutes, the department’s human resources director and two security guards approached saying leafletting is prohibited even after Freedom Foundation staff asserted their First Amendment right to leaflet in public areas.
In subsequent back-and-forth between Foundation attorneys, the agency’s HR Director, and two assistant attorneys general, the department insisted its lobby is not a public forum and the Foundation had no First Amendment right to distribute leaflets there.
Weeks earlier, however, the agency allowed the Washington Federation of State Employees (WFSE) to hold a membership drive in its lobby, where the union also promoted political causes such as opposition to right-to-work campaigns.
Not only is pamphlet distribution in its lobby non-disruptive but, by allowing pro-union viewpoints while excluding Freedom Foundation, the department violated the First Amendment’s protection against viewpoint discrimination. On behalf of Freedom Foundation, PLF filed a Federal First Amendment challenge against the Washington State Department of Ecology.