The Ninth Circuit was faced with a very tough conflict. California’s law, SB 399, prohibited employers from forcing their employees to listen to religious or political speech upon pain of adverse job consequences.

[a]n employer, [with exceptions not relevant here], shall not subject, or threaten to subject, an employee to discharge, discrimination, retaliation, or any other adverse action because the employee declines to attend an employer-sponsored meeting or affirmatively declines to participate in, receive, or listen to any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s opinion about religious or political matters. An employee who is working at the time of the meeting and elects not to attend a meeting described in this subdivision shall continue to be paid while the meeting is held.

Much of the opinion addresses a fairly obvious conclusion, that this is a content-based law that implicates the First Amendment as to the employer’s free speech rights. California argued that this law prohibited conduct, not speech. The panel wasn’t buying.

It is true that SB 399 facially forbids only the act of “subject[ing], or threaten[ing] to subject, an employee” to discipline for declining to attend certain meetings. But the law only applies to employers who engage in expressive activity at those meetings: namely, “communicat[ing their] opinion. It does not, for example, prohibit taking adverse action against employees who decline to attend a meeting, the sole purpose of which was for employees to fill out their annual tax paperwork. It prohibits adverse action only when the meeting’s purpose was for the employer to engage in expressive activity. Thus, the First Amendment applies.

The panel further held that the law was content based, subjecting it to strict scrutiny, and that no precedent established a right not to be a captive auditor that overcame the employer’s free speech rights.

In tension here are “the First Amendment rights of speakers” and “the privacy rights of those who may be unwilling … auditors.” The State may protect the unwilling auditor’s privacy “by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content.” As discussed above, that is not what California did here: SB 399 singles out political and religious speech for regulation. Thus, California, “acting as censor, undert[ook] selectively to shield the public from some kinds of speech on the ground that they are more offensive than others.” The Supreme Court has said that “[s]uch selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, or the degree of captivity makes it impractical for the unwilling … auditor to avoid exposure.” In such circumstances, California’s ability to limit “discourse solely to protect others from hearing it is … dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.”

The court did not go so far as to hold that employees have no right to be free of adverse job consequences for not attending non-job-related sermons, but just that the California law was “likely” (this is still at the preliminary injunction stage) unconstitutional. While Supreme Court dicta in other circumstances provides that people have a right to speak, they have no right to force others to listen, the issue had never been decided in an employment setting.

California fails to identify a single case where a content-based restriction has been upheld because employees were deemed a captive audience or had their substantial privacy interests invaded in an essentially intolerable manner. Instead, the State points to cases upholding speech limitations on public transit, at healthcare facilities, and on school premises, which referred to commuters, patients, and students as captive audiences.

Notably, the lack of precedent only goes one way here, putting the onus on the state to overcome the presumption of unconstitutionality for content-based speech restrictions. Had the burdens been shifted and the onus put on employers to demonstrate that they had a right to require employees to endure their religious or political speeches upon pain of getting fired, there would be no precedent to support that position either.

It would be one thing if this situation related to working issues, and nobody would suggest that employers shouldn’t be able to require employees to listen to whatever the employer has to say about the job. But that’s not the case here. There’s something that’s very wrong with forcing employees to listen to religious or political speech against their will. They may be getting paid to sit there, but they are as captive an audience as it gets. And the circuit was not unaware of the odor emitting from its ruling.

Considering the dearth of support for California’s position and that the “captive audience” theory has been applied to support content-based speech restrictions only in nonpublic government forums, we conclude that the industry groups are likely to succeed on the merits of their First Amendment claim.

The plain, if at times disquieting, truth is that in our pluralistic society, . . . we are inescapably captive audiences for many purposes. Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.

The Ninth Circuit’s decision reflects a sincere effort to respect the First Amendment right to free speech in the face of a problematic situation. And, indeed, free speech often gives rise to difficult and often offensive applications of undesired speech being protected even when many would prefer it not be. But is forcing employees to be a captive audience for religious or political speech different?

H/T Eugene Volokh