In a significant victory for Western Growers and California employers, the U.S. Court of Appeals for the Ninth Circuit on October 29 unanimously affirmed a preliminary injunction blocking California from enforcing SB 399, the state’s so-called “captive audience” law. The court concluded that the employer associations challenging the law are likely to prevail on their claim that it violates the First Amendment.
The California Chamber of Commerce, California Restaurant Association and Western Growers brought the lawsuit, California Chamber of Commerce v. Bonta. Fisher Phillips attorneys Lonnie Giamela and Todd Lyon represent the associations. A link to the association plaintiffs’ statement can be found here. Western Growers thanks CalChamber for leading this litigation and for its partnership in defending California employers’ First Amendment rights.
SB 399, which took effect Jan. 1, 2025, prohibits employers from taking or threatening adverse action against employees who decline to attend employer-sponsored meetings or receive communications conveying the employer’s opinions on political or religious matters. The law defines “political matters” broadly, covering legislation, regulation, elections and decisions about joining or supporting a labor organization. Violations carry potential civil penalties of $500 per employee per violation, along with exposure to employee lawsuits and damages.
The State Cannot Single Out Employer Speech
California argued that SB 399 regulates employer conduct rather than speech because it restricts discipline for refusing to attend a meeting. The Ninth Circuit rejected that distinction. Whether an employer violates the law depends on what the employer says at the meeting, bringing the First Amendment directly into play.
The court found that SB 399 discriminates based on both the subject of the speech and the identity of the speaker. As the opinion explains, “SB 399 is facially content-based because it applies only when the employer has discussed certain topics: politics and religion.”
Those distinctions subjected the law to strict scrutiny, the most demanding constitutional standard. California’s argument that employees need protection as a “captive audience” did not justify the restrictions.
Western Growers’ Evidence Helped Establish the Right to Sue
The court specifically relied on Western Growers’ declaration explaining that members hold all-hands meetings to discuss legislation and legislative reform. That evidence helped establish Western Growers’ standing to challenge the law on its members’ behalf. Having found that Western Growers had standing, the court did not need to decide whether the other associations independently satisfied that requirement.
What the Decision Means for Employers
The ruling keeps the preliminary injunction against California’s enforcement of SB 399 in place. It is a substantial appellate victory, although it does not constitute a final judgment permanently invalidating the law. The court resolved the appeal on First Amendment grounds and did not reach the associations’ separate argument that federal labor law preempts SB 399.
For agricultural employers, the decision protects the ability to discuss legislation, regulation and other issues affecting their businesses with employees. Employers should continue to observe other applicable restrictions on workplace communications, including prohibitions against threats, coercion and unlawful retaliation.