Freedom Foundation v. Turner

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2025
• Docket: 24-768
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FREEDOM FOUNDATION, a not-for- No. 24-768 profit organization, D.C. No. 2:23-CV-03286-WLH-JPR Plaintiff-Appellant, v. MEMORANDUM* RITA GAIL TURNER, in her official capacity as Litigation Research Coordinator in the Public Records Act Unit of the Office of General Counsel for the Los Angeles Unified School District, et al.,

Defendant-Appellee, and

CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD, et al.,

Intervenor Defendant-Appellee.

On Appeal from the United States District Court for the Central District of California Hon. Wesley L. Hsu, presiding

Submitted March 6, 2025** Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: TALLMAN, IKUTA, and CHRISTEN, Circuit Judges.

Plaintiff-Appellant Freedom Foundation, a non-profit organization dedicated

to educating public employees about their right to refrain from paying union dues,

appeals the district court’s dismissal of its First Amendment claim for failing to state

a claim. Appellant alleged that California Government Code Section 3556 (“Section

3556”), which prohibits disclosing the time, date, and location of public employee

orientations to anyone other than “the employees, the exclusive representative, or a

vendor that is contracted to provide a service for purposes of the orientation,” Cal.

Gov’t Code § 3556, is a viewpoint-based and content-based restriction and a prior

restraint on speech. We review de novo the district court’s grant of a Rule 12(b)(6)

motion for failure to state a claim, Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093

(9th Cir. 2017) (citation omitted), and we affirm.

Even taking Appellant’s non-conclusory factual allegations as true, Appellant

did not state a plausible claim that Section 3556 violates the First Amendment as

either a content-based or viewpoint-based restriction on speech, or as a prior

restraint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell All. Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

1. Appellant failed to plausibly allege that Section 3556 is content or

viewpoint discriminatory either on its face or in its “justification or purpose.” See

Reed v. Town of Gilbert, 576 U.S. 155, 166 (2015) (citations omitted). First, Section

2 24-768 3556 is not facially discriminatory because it does not “draw[] distinctions based on

the message a speaker conveys.” See id. at 163 (citation omitted). Like the

regulation at issue in Boardman v. Inslee, 978 F.3d 1092 (9th Cir. 2020), Section

3556 regulates the dissemination of information based on the receiver’s legal

status—the employees, the exclusive representative, or a vendor that is contracted

to provide a service for purposes of the orientation—not the content of their speech

or the viewpoint they convey. See Boardman, 978 F.3d at 1112.

Second, Section 3556 does not discriminate in its “purpose and justification.”

Reed, 576 U.S. at 166. Its legislative history reflects a content and viewpoint neutral

purpose and Appellant did not plead sufficient facts to show otherwise. Legislative

reports show that the confidentiality provision arose out of “incidents of workers

being targeted at public gatherings” that caused “privacy and safety concerns” for

public employees. This is content and viewpoint neutral and concerns legitimate

state interests. See Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 271 (9th

Cir. 1995). So, too, is ensuring that an exclusive bargaining representative has

access to carry out the duty of communicating with public employees at an

orientation. Boardman, 978 F.3d at 1118; see Janus v. Am. Fed’n of State, Cnty., &

Mun. Emps., Council 31, 585 U.S. 878, 898–99 (2018). The fact that Section 3556

has the “incidental effect” of denying Appellant access to the orientation information

does not negate the law’s neutral purpose. Boardman, 978 F.3d at 1113.

3 24-768 Appellant’s theory is that Section 3556 was “adopted by the government

because of disagreement with the message [the speech] conveys” based on the

Legislature’s allegedly pro-union bias. See Reed, 576 U.S. at 164 (alteration in

original) (internal quotation marks and citation omitted). But none of Appellant’s

alleged evidence establishes a plausible connection between legislators’ perceived

pro-union bias and Section 3556.

2. Appellant failed to plausibly allege that Section 3556 amounts to a prior

restraint, considering that the law does not forbid any speech. See Twitter, Inc. v.

Garland, 61 F.4th 686, 702-03 (9th Cir. 2023), cert. denied sub nom. X Corp. v.

Garland, 144 S. Ct. 556 (2024). Section 3556 does not allow the government to

issue or threaten to issue an order forbidding speech, and it does not give the

government discretion to approve or disapprove of Appellant’s speech. The law

allows the exclusive representatives of the employees to receive information about

the location and timing of the orientation session based solely on legal status, which

we affirmed in Boardman. Boardman, 978 F.3d at 1110. As the district court

explained, Appellant did not state a claim by simply alleging that Section 3556

burdens Appellant’s ability to efficiently locate and speak to new employees at

orientations. Appellant acknowledged that Section 3556 does not bar it from

reaching public employees to convey its message. Appellant can locate the names

of new employees under the California Public Records Act.

4 24-768 3. Since Section 3556 does not implicate First Amendment rights, it is

subject to rational basis review, which presumes the law is constitutional. Id. at 1118

(citations omitted). Appellant does not contest that Section 3556 has a rational basis.

It admits that the concern for employee privacy is “generally important,” and “might

suffice as support for a government interest under a rational basis approach . . . .”

See also id. (holding that analogous law survived rational basis review because the

state has a legitimate public interest in privacy and safety of the workers, as well as

the “special responsibilities of an exclusive bargaining representative” (quoting

Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 54 (1983))).

AFFIRMED.

5 24-768