California out on political, religious speech at work meetings gets look at Ninth Circuit

SAN FRANCISCO (CN) — Employers seeking to keep a California law on hold told a Ninth Circuit panel Tuesday that lawmakers improperly chilled their First Amendment right to hold mandatory meetings.

A lower court in September halted Senate Bill 399, determining it regulated the content of speech. The California Chamber of Commerce had argued the law, passed in 2024, limited employers from talking about religious or political issues during mandatory work meetings.

California appealed the preliminary injunction to the Ninth Circuit. Arguing for the state on Tuesday, attorney Kristin Liska said the law has no prohibition on employers holding meetings. However, they can’t punish or threaten to sanction employees who don’t attend.

“All of those are completely permissible under the law,” Liska said of employers sending emails and holding meetings. It applies, and a legal line is crossed, when an employer forces the emails or requires attendance.

The judges appeared skeptical.

U.S. Circuit Judge Richard Tallman, a Bill Clinton appointee, said he knew of no U.S. Supreme Court case that applied a captive audience standard in a private employment context. He pressed Liska for such a case.

“I looked and we couldn’t find one,” Tallman said.

The judge surmised that Liska wanted the panel to extend the captive audience doctrine, which the nation’s highest court has never said applies to private employers.

“They can say whatever they want,” Liska said, adding the crux of the law is about employees facing punishment for not attending a work meeting. “This is not about silencing employers.”

Tallman then referenced “Harry Potter,” saying employers are trying to determine which speech is acceptable.

“It’s kind of like Lord Voldemort, he whose name you cannot speak,” Tallman quipped.

Liska also argued the plaintiffs lack standing to challenge the law, adding three companies in their affidavits never stated they intended to hold meetings that would violate the statute. That meant they failed to meet the bar for a pre-enforcement preliminary injunction.

Representing the Chamber, attorney Lonnie Giamela argued his clients did, in fact, make that claim in their legal filings. He said the law is discriminatory, content-specific and chilled speech.

U.S. Circuit Jude Mark Bennett, a Donald Trump appointee, questioned whether the Chamber had made those claims. Bennett said he saw nothing in their affidavits that they intended to hold future meetings.

“How hard is that to allege?” Bennett asked.

Giamela said he met the requirements for standing. His clients held meetings that violated the law and the state hasn’t said it wouldn’t enforce the statute.

U.S. Circuit Judge Richard Paez, a Clinton appointee, questioned whether the plaintiffs ever said employees must attend a meeting and face termination if they didn’t. Giamela said the law isn’t limited to firing an employee.

“There’s a lot of nuances in this statute,” Paez said, adding Giamela’s clients have speculated about what could happen if they broke the law. “In my book, they just don’t cut mustard for constitutional standing.”

Giamela argued that his clients have the intent to engage in conduct that would violate Senate Bill 399. He added that people seeking a preliminary injunction aren’t compelled to violate a law to achieve the ability to challenge that law.

The statute doesn’t ban all meetings, he said later, but it does ban some because of the content in the meetings.

“It bans specific meetings under specific content which is impermissible under the First Amendment,” he added.