Courts can’t look the other way when the government censors speech

February 20, 2019 | By ANASTASIA BODEN

When government officials seek to stifle a viewpoint they don’t like, they probably won’t be forthcoming about it. Instead, they’ll concoct a pretextual reason for their censorship or use a “neutral” proxy that, in practice, discriminates against their non-preferred viewpoints.

For the First Amendment to have teeth then, courts must be empowered to search behind allegedly “neutral” laws, or so we argue in our Petition for Certiorari to the Supreme Court on behalf of the non-profit advocacy organization Associated Builders and Contractors-California Cooperation Committee (ABC-CCC).

The lawsuit concerns California’s SB 954, which was signed into law by former Gov. Jerry Brown last year and which ABC-CCC argues channels money toward union-favored speech, and union-favored speech only.

SB 954 regulates how contractors for public projects pay their employees. In California, public contractors are required to pay their employees a minimum—or “prevailing”—wage. They can satisfy this requirement by paying a combination of cash and other benefits, like providing health insurance, or contributing to an employee’s pension fund. They can also donate to “industry advancement associations” that advocate for the improvement of the industry and receive a credit toward their prevailing wage obligation. ABC-CCC is one such organization.

Formerly, any such association could receive a contribution. Under SB 954, however, organizations may only receive a prevailing wage contribution if they are first authorized by a union-approved collective bargaining agreement.

This requirement plainly discriminates against organizations that advocate in ways that unions don’t like. ABC-CCC, for example, was created to advocate against the mandatory use of union labor in public contracting. No union will authorize a contribution to an organization that seeks to reduce the influence of unions. Therefore, SB 954 effectively makes ABC-CCC ineligible for prevailing wage contributions.

ABC-CCC sued on the theory that SB 954 discriminates against organizations based on their viewpoint in violation of the First Amendment and the Equal Protection Clause. It argued that the “neutral” criteria of being selected in a collective bargaining agreement acts as a proxy for viewpoint discrimination.

The government responded that SB 954 is aimed at the neutral purpose of ensuring that employees consent to how their wages are allocated, but the law is so ill-suited to that end that there is good reason to doubt whether that is the true objective. Collective bargaining agreements do not ensure individual consent. Instead, they only require a majority vote, meaning that nearly half of workers may disagree with the way in which their wages are allocated under a collective bargaining agreement. Some agreements do not require employee consent at all, and even when employees are allowed to vote, they can only vote straight up or down.

The law is also over-inclusive. It precludes prevailing wage contributions to funds like ABC-CCC even if an employer obtains actual consent from the employees, because it only allows contributions if they are authorized under a collective bargaining agreement. SB 954 does not ensure that employees consent to how their wages are allocated; rather, it ensures that prevailing wage contributions only go to union-supported organizations. Notably, since SB 954 went into effect, ABC-CCC has lost 99% of its funding.

The district court dismissed the case without even allowing ABC-CCC to obtain discovery to support its claim. It held that the law was facially neutral, and it declined to look into it any further to determine whether it was discriminatory in effect. The Ninth Circuit affirmed and held that the law was a neutral “government subsidy of speech.”

However, the mere appearance of neutrality should not be enough to dismiss plausible allegations of viewpoint discrimination. ABC-CCC has alleged that the purportedly “neutral” requirement of a collective bargaining agreement acts as a proxy for union-backed speech, and it should have the opportunity to prove that allegation in court.

Moreover, SB 954 is a not a “government subsidy” of speech. It regulates how private parties allocate private funds to other private parties. Government speech subsidies, such as tax credits or public grants, are subject to lower scrutiny than are restrictions on private speech. For instance, when doling out subsidies, the government can engage in speaker-based discrimination; by contrast, under a traditional First Amendment analysis, speaker-based discrimination subjects a law to strict scrutiny.

By expanding the definition of “government subsidy,” the Ninth Circuit has subjected a host of private speech to a lower standard of scrutiny than is required by the First Amendment. We are hopeful that the Supreme Court will take up this case to correct these two errors.