New York, Oregon laws could make the Supreme Court defend its Janus ruling

In 2018, the U.S. Supreme Court handed public-sector unions a well-deserved rebuke in Janus v. AFSCME. The justices affirmed that government employees cannot be compelled to financially support a union as a condition of employment.

Eight years later, the question is whether the court is willing to defend the principle it enunciated. So far, it has not. But two ongoing lawsuits might just be egregious enough to change that.

Oregon and New York recently enacted remarkably similar laws. On their face, they claim their intention is to prevent organizations from fraudulently impersonating labor unions, which sounds reasonable enough. Fraud is already illegal, and nobody has a constitutional right to deceive workers.

But these laws actually have a much more specific target: The Freedom Foundation, my own national watchdog organization, whose mission is to inform government employees of their right to decline union membership and dues — and when necessary, to help them exercise it, since unions often make it as difficult as they can.

That distinction matters. Oregon’s law, passed last year, prohibits falsely impersonating a union representative and provides statutory damages of $6,250 per incident. In response, the Freedom Foundation filed a lawsuit challenging the measure, arguing that its communications are identified and that the law merely chills constitutionally protected speech. After a federal district court dismissed the case, the organization appealed to the 9th Circuit Court of Appeals.

New York followed this past spring with Civil Service Law Section 216. The statute authorizes Attorney General Letitia James to act when she believes someone has engaged — or is “about to engage” — in prohibited communications. Violations can result in fines of $1,000 per incident.

The Freedom Foundation sued New York on Sept. 28.

The constitutional problem isn’t merely what happens when someone is prosecuted. It is what happens before. At no point in testimony on behalf of either bill did union backers even attempt to present evidence that the Freedom Foundation has tried to mislead anyone. But under the laws they managed to pass, the organization must now consider whether a mailing, advertisement or email could later be characterized as a “material omission,” “misrepresentation” or “other deception” by a partisan attorney general, union lawyer or judge.

That is how speech gets chilled. You don’t necessarily need to censor someone outright when you can make speaking prohibitively risky.

Which brings us back to Janus. Since 2018, public-sector unions and their political allies have developed a variety of mechanisms to it more difficult to opt out of union membership. In response, the Freedom Foundation has represented dozens of workers trying to cut ties with their unions. We have repeatedly asked the Supreme Court to intervene in post-Janus disputes, including cases involving restrictions on resigning union membership and unions refusing to accept opt-out paperwork.

The court has ignored every appeal, and that restraint has had consequences. When the Supreme Court stubbornly refuses to police its own boundaries, those regulated by the decision inevitably begin testing how far they can go. The laws passed in Oregon and New York represent the logical next step.

In addition to making it needlessly difficult for employees to exercise their rights, union allies are now trying to suppress the information necessary for those same employees to make that choice by rendering it legally hazardous for outside organizations to tell them their rights.

To be clear, neither Janus nor the First Amendment addresses fraud. They don’t need to. If an organization actually does impersonate a union, deliberately deceives workers and causes harm, states have legitimate tools for dealing with that.

But these state governments are using the threat of potential fraud allegations as a convenient excuse to muzzle dissent. Public officials should not be empowered to threaten speakers with potentially enormous penalties based on vague standards whose application rests largely on the political sympathies of those enforcing them.

That is why these cases have relevance that goes far beyond the Freedom Foundation.

Our organization has now challenged both statutes in federal court. Eventually, one or both cases could reach the Supreme Court. If and when they do, the justices should finally seize the opportunity to send an unambiguous message to government employee unions.

For eight years, the Supreme Court has largely watched from the sidelines while unions and sympathetic lawmakers probed the limits of Janus. Enough is enough. A constitutional right that governments can burden, obstruct or frighten people out of exercising is no right at all.

The justices drew a line in the sand with Janus in 2018. If Oregon or New York’s law reaches their doorstep, they should finally make clear that line is carved in stone.

Jeff Rhodes is vice president of news and information at the Freedom Foundation.