In Calif. Chamber of Commerce v. Bonta, decided today by Judge Richard Tallman, joined by Judges Richard Paez and Mark Bennett, a federal appeals court struck down California Senate Bill 399 on solid constitutional grounds. The law prohibited employers from subjecting employees to adverse action for refusing to attend employer-sponsored meetings designed to communicate the employer's opinion about religious or political matters. The court got this one right, and California's attempt to restrict employer speech should serve as a cautionary tale about overreach.
California's fundamental error was attempting to regulate speech while claiming to regulate only conduct. The state argued that SB 399 merely banned disciplinary action—a conduct restriction—not the underlying speech itself. But as the court correctly noted, there is no way to determine whether an employer violated the law without examining the content of the message conveyed at the meeting. Did the employer express an opinion on political or religious matters? That question is inescapably about speech, not conduct. The Eleventh Circuit reached the same conclusion about Florida's Stop W.O.K.E. Act in Honeyfund.com, Inc. v. Governor (11th Cir. 2024), and the logic is airtight: when the regulated conduct cannot be separated from the speech itself, the regulation targets speech.
California's invocation of the 'captive audience' doctrine was equally flawed. The state argued that employees, being economically dependent on their employers and risking job loss for refusing to listen, deserve the same protection from unwilling speech exposure as commuters on public transit, patients at healthcare facilities, and students at public schools. But the court found no precedent—and the Eleventh Circuit directly rejected the theory—for using a captive audience rationale to justify content-based restrictions on nongovernmental speech in a nongovernmental setting. The cases California cited involved government actors operating as proprietors or imposing content-neutral time, place, and manner restrictions. Neither principle applies here.
There is a legitimate debate about employee protections in the workplace. But content-based speech restrictions are not the answer. As Judge Tallman's opinion explains, if California wanted to protect employees from unwanted employer speech, it could have adopted viewpoint-neutral time, place, and manner regulations applicable to all speech. Instead, California selectively shielded employees from political and religious speech specifically—precisely the kind of viewpoint discrimination the First Amendment forbids.
The court's decision does not strip employees of all protection. Employers remain subject to existing labor law, harassment policies, and other content-neutral workplace rules. What the decision does prevent is California using government power to suppress certain categories of speech based on their content. That is exactly what the First Amendment requires.