Freedom Foundation v. Joel Sacks

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2024
• Docket: 23-35089
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FREEDOM FOUNDATION, a Washington No. 23-35089 non-profit corporation, D.C. No. 3:21-cv-05928-JCC Plaintiff-Appellant,

v. MEMORANDUM*

JOEL SACKS, in his official capacity as Director of the Washington State Department of Labor & Industries; HEATHER NORMOYLE, in her official capacity,

Defendants-Appellees,

WASHINGTON STATE LABOR COUNCIL,

Intervenor-Defendant- Appellee.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Argued and Submitted September 10, 2024 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: GRABER and SUNG, Circuit Judges, and RAKOFF,** District Judge.

The Washington State Department of Labor & Industries (“Department”)

holds bi-weekly orientation programs for its new employees. Pursuant to

Washington law and the requirements of the Department’s collective bargaining

agreement, the Department invites the Washington Federation of State Employees

(“WFSE”)—the exclusive bargaining representative for the Department’s

employees—to speak at the orientation programs. After Plaintiff Freedom

Foundation asked for, but was denied, comparable access to the orientation

programs, Plaintiff brought this action alleging violations of the First Amendment

and the Equal Protection Clause. Plaintiff timely appeals the summary judgment

entered in favor of Defendants. Reviewing de novo, Dietrich v. John Ascuaga’s

Nugget, 548 F.3d 892, 896 (9th Cir. 2008), we affirm.

1. Because Plaintiff seeks access to the orientation programs, those

programs are the relevant forum. See Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc., 473 U.S. 788, 801 (1985) (“[I]n defining the forum we have focused on

the access sought by the speaker.”). The district court correctly labeled the

orientation programs a nonpublic forum. The programs are not open to the public,

do not feature members of the public as presenters, and are not conducted in public

** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.

2 places. See Minn. Voters All. v. Mansky, 585 U.S. 1, 11 (2018) (defining a

nonpublic forum as “a space that ‘is not by tradition or designation a forum for

public communication’” (quoting Perry Educ. Ass’n v. Perry Loc. Educators’

Ass’n, 460 U.S. 37, 46 (1983))).

Restricting access to the orientation programs based on WFSE’s legal status

as the exclusive collective bargaining representative for the Department’s

employees does not violate Plaintiff’s First Amendment rights because a restriction

based on status is reasonable and viewpoint neutral. See Cornelius, 473 U.S. at

806 (stating the legal standard applicable to subject-matter- and speaker-identity-

based restrictions on access to nonpublic fora); see also Perry, 460 U.S. at 49–51

(holding that giving access to a union due to its status as exclusive representative,

but refusing access to a rival union, was reasonable and did not constitute

viewpoint discrimination); Boardman v. Inslee, 978 F.3d 1092, 1110–12 (9th Cir.

2020) (applying Perry and permitting restriction that rested “entirely on [the

speakers’] legal status,” as opposed to the speakers’ viewpoints (emphasis

omitted)).

Plaintiff’s reliance on Rosenberger v. Rector & Visitors of the University of

Virginia, 515 U.S. 819 (1995), and similar cases is misplaced. Rosenberger

3 involved entities that held the same legal status (student groups) and a policy that

applied only to groups with religious views.1 See id. at 825–27.

2. Plaintiff’s Equal Protection Clause claim fails because there is a rational

basis for treating WFSE and Plaintiff differently with respect to access to the

orientation programs. See Currier v. Potter, 379 F.3d 716, 731–32 (9th Cir. 2004)

(applying rational-basis review where “no fundamental right of access ha[d] been

violated”). Unlike WFSE, which serves as the employees’ exclusive representative

and has a statutory and contractual right and obligation to communicate with those

employees, Plaintiff has no legal or contractual relationship with the Department’s

employees and has no official role in Washington’s collective bargaining system.

AFFIRMED.

1 Plaintiff argues that, at the orientation session held on March 24, 2021, WFSE’s representative violated Revised Code of Washington section 41.56.037 by failing to limit the presentation to information about the new employees’ exclusive bargaining representative. As noted above, what the WFSE’s representative said is not relevant to our First Amendment analysis because the Department differentiated between speakers based only on their legal status. We need not and do not decide whether Plaintiff can seek a remedy under state law for the alleged violation.