California's New Union Gag Order Violates 1st Amendment

Almost exactly two years ago, I did a premature victory lap in celebrating the pro-free speech outcome in Janus v. AFSCME – a Supreme Court case that granted workers the right to opt out of union dues when the union’s actions conflicted with their values. The myth of Janus, the two-faced God, then seemed like a fitting metaphor for the changing make-up of the court, but two years later the myth of the many-headed hydra feels more appropriate. It turns out Janus was only the beginning of the battle.

A new case, Barke v. Banks, has reignited the debate over the speech rights of public employees. This time, the question is whether non-union public employees – including elected officials – can openly criticize unions or even say anything about them at all. California lawmakers, beholden to Big Labor, say “no.” In response, the Center for Individual Rights and the California Policy Center moved for a preliminary injunction against California law Section 3550, which seeks to regulate what elected officials can and cannot say. This includes, for example, informing teachers that the outcome in Janus means they no longer have to pay union dues.

“It is well-settled that federal and state governments may not favor or disfavor speech based on the point of view being expressed. Yet Section 3550 clearly punishes one side of the debate about union policies. It imposes penalties on speech that the unions consider unfavorable while leaving untouched speech that is supportive of the unions.” – Barke Factsheet | The Center for Individual Rights

Terry Pell is the President of CIR and lawyer for Jeffrey Barke – a medical doctor with a long history of public service, including School Board member and most recently, a Director of the Rossmoor Community Service District. Barke has been outspoken on a number of issues, from pensions to COVID restrictions, and is fighting back against the “gag order” enforced by Section 3550.

The case has only become more important as teacher’s unions across the state are tying school re-openings to absurd political demands that have nothing to do with education. Will our elected officials be able to stand up and speak their minds, or will California’s powerful public sector unions get their way again?

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