[00:00:00] Speaker 01:
Good morning, Your Honors. Still morning. May I please the court? So we are back on the same statute, SB 399, and this case, as with the one that we just discussed, also presents some standing issues, especially since here the affidavits and declarations submitted by the plaintiffs do not even indicate they wish to require employees attend meetings, simply have meetings.

[00:00:23] Speaker 05:
I thought there were declarations from...

[00:00:26] Speaker 05:
Lundy from the Western Growers Association saying that they do hold all hands meetings to discuss political topics, which would be impacted by the act.

[00:00:40] Speaker 01:
My understanding is that the employer, the affidavits, which were all from the organizations, there are no affidavits from actual employers in this case. They do say that they have sponsored, so for instance, the Western Growers Association, paragraph 19, they say that they sponsor, they have conducted or engaged in or plan to conduct or engage in employer-sponsored meetings.

[00:01:04] Speaker 01:
which discuss political issues. But the statute does not prohibit employer-sponsored meetings.

[00:01:10] Speaker 05:
Counsel, there's a declaration from Ben Golombek, G-O-L-O-M-B-E-K, from the California Chamber. I'm looking at paragraph six.

[00:01:20] Speaker 01:
Oh, my apologies. I was looking at the complaint. I apologize.

[00:01:23] Speaker 05:
Yeah, no, I'm looking at these declarations. Here's one.

[00:01:27] Speaker 01:
Yes, so the Golembeck Declaration, paragraph 6, states that their members have held meetings to discuss the impacts of ballot measures. The statute does not prohibit an employer from holding meetings to discuss the impact of any ballot measures. So their members are completely free to hold as many meetings as they wish. All the statute says is that they cannot discipline employees who refuse to attend or threaten to discipline employees who refuse to attend.

[00:01:53] Speaker 03:
I just want to make sure I understand the context of this case. Which is the plaintiffs are organizations. Correct. Right? Yes. And the organizations have employers as members. Correct. And this affidavit, these four affidavits that are part of the record, are affidavits by the organizations. Correct. Talking about what they believe their members do. Correct. Right? Yes. There's no declaration from any employer. Correct.

[00:02:22] Speaker 01:
That is correct. There are declarations from the organizations, and those declarations simply state that members have meetings where politics are discussed, which is not conduct that is prohibited under SB 399 in any way, shape, or form.

[00:02:36] Speaker 03:
Okay. So why did the district court erroneously conclude that there was standing?

[00:02:42] Speaker 01:
So...

[00:02:44] Speaker 01:
Part of this is that the district court applied the wrong test, I think, and it may just be simply the fact that this court has kind of been a bit clearer lately on the way to do pre-enforcement standing. It now uses that three-part test from Dray House, whereas the lower court applied the old multi-factor test from Thomas, because the lower court did say plaintiffs haven't actually alleged. they plan to engage in conduct within the scope of the statute, but nonetheless found standing. And we believe that that's just erroneous under the way pre-enforcement standing is done, which does require that plaintiffs articulate and establish that they intend to engage in conduct within the scope of the statute to have pre-enforcement standing.

[00:03:24] Speaker 01:
And it's also worth emphasizing that this is on a preliminary injunction stage, not on a motion to dismiss. So the burden here to establish standing is higher, and we think these declarations are just insufficient to do it.

[00:03:36] Speaker 04:
I have three of them in front of me. Whatever the fourth one is, I don't have. But are there anything in any of the declarations which state Member A holds mandatory meetings?

[00:03:51] Speaker 01:
No, Your Honor. None of them say anything about a mandatory meeting.

[00:03:55] Speaker 04:
So can you tell me, I just want to see which I'm missing here, if there are four. I have in front of me Lundy, Condi, and Golembeck. What is the fourth one?

[00:04:08] Speaker 01:
My understanding is there's only three organizational plaintiffs, so there are three declarations from them.

[00:04:12] Speaker 04:
All right. Thank you, counsel.

[00:04:14] Speaker 01:
But obviously my friend on the other side can clarify if I'm missing one.

[00:04:19] Speaker 01:
I do want to pivot there, though, because I do think that this is an important point when we turn to the question of the First Amendment, where, again, we start at this threshold inquiry of, does the law regulate expression and speech to begin with? And I think here the fact that the meetings that they talk about wanting to hold, where conversations are had about politics, all of those are completely permissible under the law. It does not prohibit an employer from sending emails to employees about, we think you should vote for or against a candidate. It doesn't prohibit them from saying, we're going to have a meeting this afternoon to discuss these politics.

[00:04:51] Speaker 01:
Everyone's welcome to come if they would like. The only thing that the statute does is regulate employee discipline. They cannot say, hey, if an employee says, hi, I got your emails about voting for Newsom for president or voting for Trump for president. I don't want those emails anymore. The employer can't then say, well, too bad. If you don't want those emails, I'm going to fire you. That's not allowed.

[00:05:10] Speaker 05:
What else does an all-hands meeting mean if it doesn't anticipate that all employees are required to attend?

[00:05:20] Speaker 01:
So I think that the...

[00:05:21] Speaker 01:
The salient question is, does the First Amendment give the employers the right to have a mandatory all-hands meeting? And the answer to that is no.

[00:05:30] Speaker 05:
An employer can't require its employees to attend an all-hands meeting?

[00:05:36] Speaker 01:
The First Amendment does not give anyone the right to force people to listen. An employer can have a meeting. They can say, we want everyone to come.

[00:05:44] Speaker 05:
We're back to the question I asked you in the last case. I don't know of any Supreme Court case that applies in the private employment context.

[00:05:53] Speaker 01:
So I think that it – I think it's – I'd like to step back here. And, again, there's kind of two separate parts of this First Amendment analysis. One is the threshold question, does the First Amendment apply? The second is once we are in First Amendment land, what's the level of scrutiny? And I think that there is a lot of case law, and we cite to it on our brief, you know, the quote from the Rowan case from the Supreme Court. No one has a right to press even a good idea on an unwilling listener.

[00:06:17] Speaker 04:
So I think the Supreme Court – But are they an unwilling – Listener, I mean, they have let's say all hands means mandatory.

[00:06:28] Speaker 04:
And that is in one of the declarations, all hands.

[00:06:33] Speaker 04:
So the attorney general's and the labor commissioner's view is that the captive audience doctrine is.

[00:06:48] Speaker 04:
applies and that the First Amendment does not protect the right of an employer to say to an employee, you have to attend this meeting.

[00:06:59] Speaker 01:
So I think that there are Maybe to clarify a little, I think our argument is that at the threshold step, this is a regulation of employee discipline. It's a regulation of conduct and not speech. So the First Amendment does not apply. If, however, this court disagrees with us and thinks the First Amendment applies, we then have argued this law is valid as a protection of a captive audience. So that's more the captive audience comes into play.

[00:07:25] Speaker 05:
That's where I keep pressing you on. What is your best case? that says that the first amendment can be applied to a captive audience in a private setting where the employer is paying the employees to attend an all-hands meeting

[00:07:43] Speaker 01:
So I think the captive audience cases say that someone does not need to, and this is from Hill.

[00:07:48] Speaker 05:
Give me a citation to the best case you've got, because I looked and we couldn't find one.

[00:07:54] Speaker 01:
So I would pull from, I think maybe the better analog here is the health care clinic cases, because I would pull from the language in Hill.

[00:08:00] Speaker 05:
But that is speech that occurs on a public sidewalk in front of the clinic, right? Yeah.

[00:08:08] Speaker 01:
But I think that the thrust of the captive audience doctrine is the idea that people don't have to undertake Herculean efforts to avoid unwanted speech. That's the concept behind it. And so people who are on a bus, for instance, are captive. And I think that an employee who... But in that case, the...

[00:08:29] Speaker 05:
public entity owned the bus, right? It's a public transit system. And if you want to take the bus to work, you got to get on the bus. And the Supreme Court addressed whether or not that type of a venue, public venue, involved a captive audience, although the Supreme Court hasn't Really, they use the term, but they've never squarely held what captive audience means. And that's why I keep pressing you for why that doctrine should be so broadly applied that would include meetings by private employers.

[00:09:05] Speaker 01:
So first, we're not at all saying it would always apply with respect to regulations in the workplace. I want to be very clear. We say it applies to this law because this law is about compelling listening. Second, you're right. You have to get on the bus to go to work. Well, you got to eat to live. You got to work to eat.

[00:09:22] Speaker 05:
But you don't have a constitutional right to work for this employer. If you don't like this employer, you can go find another job with a different employer.

[00:09:30] Speaker 01:
You don't have a constitutional right to ride the bus. You can always walk. I think that the idea behind the captive audience doctrine is that you don't have to put your livelihood on the line.

[00:09:39] Speaker 05:
So is the abortion clinic case the strongest case you can cite to me that the captive audience theory applies in?

[00:09:48] Speaker 01:
There's the bus cases, the healthcare clinics, and there are also some cases involving students, and I think that's another great analog. Again, I know that they're more public schools per se, but again, you're dealing with a situation where a student who is being lectured at and wishes to get away from a speech might have to risk their educational future.

[00:10:06] Speaker 05:
I'll tell you what's bothering me, if it's not obvious from my questions. What's bothering me is that you are asking us to extend a doctrine that the Supreme Court has never applied In the context of a private meeting held on the premises of the employer with its employees during work hours, the Supreme Court has been incredibly protective of First Amendment freedoms. And it just seems to me that you're asking the Ninth Circuit to put its head on the proverbial chopping block and boldly go where no other circuit has gone before, only to get slapped down by the Supreme Court for not respecting The strong protections of the First Amendment.

[00:10:49] Speaker 05:
That's what worries me.

[00:10:51] Speaker 01:
So I think what we're asking this court is to say that when employees are being held hostage, again, it's not really hostage.

[00:10:57] Speaker 03:
But let me ask you this. To what extent does the concept of coercion play into this?

[00:11:04] Speaker 01:
So I think that the thrust of this idea is that where employees have been threatened with discipline or subjected to discipline, that's where the coercion is coming from. So basically the point of the statute is to allow employees the freedom to choose. If their employer says, I'm going to be hosting prayer meetings, then employees are free to say, I'd love to attend the prayer meetings, or they're free to say, I don't want to go to this prayer meeting. I'd like to go home and spend the time with my family.

[00:11:31] Speaker 03:
So is it the coercive nature or is that different than the term captive?

[00:11:39] Speaker 01:
I think that the coercive nature comes from, I think there's captivity from the coercion because of the way people depend upon their jobs for their survival and for most people, their health care. I think when you say to an employee, come to my prayer session or I am firing you, that's not really a choice the average person has an actual freedom to choose, right? I mean, the average person, if your boss says to you, come to this prayer meeting or you're losing your job, you're losing your health care, you might not be able to pay your bills, you might not be able to buy medicine for your children.

[00:12:09] Speaker 01:
That's not really a choice most people, even someone who's truly devout or deeply passionate about their politics, are going to feel like they can actually say no to. And so while it's not captivity in a physical sense as a person on a bus, it's captivity in an economic reality. And the fact of the matter is that you just, the First Amendment just doesn't say you can do that.

[00:12:30] Speaker 04:
Although the statute here in the definition section defines, for example, political matters as legislation, right?

[00:12:38] Speaker 01:
Correct.

[00:12:39] Speaker 04:
So an employer couldn't say to its employees, for example...

[00:12:49] Speaker 04:
If they build the high speed rail as they're looking at in the legislation in Sacramento, it's going to put us out of business. We're going to have a meeting about this proposed bill and it's mandatory.

[00:13:05] Speaker 01:
So an employer can absolutely say the first part. They can say if they build the high-speed rail, they're going to put us out of business. They can send that in an email. They can then say we're going to have a meeting. They cannot say you have to attend or we're going to discipline you, but they can say anyone who wants to come may come.

[00:13:21] Speaker 04:
But as you sort of said in our prior argument, they may not even be able to say you have to attend without part two.

[00:13:30] Speaker 01:
So if they're saying you have to attend, as in you have to attend or you will be subject to employee discipline, the law would prohibit threats of it.

[00:13:38] Speaker 03:
How about in the declaration here that we referred to earlier by Corey Lundy, which said in the declaration, in paragraph five, the two sentences, W.

[00:13:53] Speaker 03:
GA's members are directly impacted by SB 399 because these discussions include meetings that are outside the job duties of the respective members' employees. And here's the sentence that, for example, WGA's members held, quote, all hands, close quote, meetings to discuss the impacts of PAGA and PAGA reforms.

[00:14:21] Speaker 03:
However, such meetings may be directly impacted by SB 399. Is that mandatory?

[00:14:30] Speaker 01:
I think this is the difficulty, I think, is that a lot of this is really going to turn on the specific facts. I mean, if you've got an employer who has a history of saying, hey, we're having an all-hands meeting this afternoon, but it's understood by the employees that that's really not, that you can come if you want or not, that might not be mandatory. It may be a situation where the employer says we're having an all-hands meeting and everyone understands because of the culture of the workplace, the history of how they've handled these issues that if you don't come to this meeting you're going to have your pay docked or you're going to be sanctioned or they're going to write up a you were a bad employee notice and put it in your file but all hands sort of means to me the same as mandatory I mean, again, I think that I just want to take it back to what the statute itself is prohibiting.

[00:15:15] Speaker 01:
And it's, you know, especially given how little we have here, I think that's a very thin reed to hang standing on, especially organizational standing in a pre-enforcement challenge.

[00:15:26] Speaker 01:
You know, the law says you cannot threaten to subject employees to discipline if they don't attend. Nothing in these declarations implies that they want to.

[00:15:33] Speaker 05:
Assuming we disagree with your position on standing and we get to the actual merits, How is the state or a putative plaintiff going to be able to proceed without looking at the actual expressive activity that was to occur at the meeting, i.e., the topics that were going to be discussed, and determine whether or not that topic is a permissible topic for employing discipline if the employee doesn't attend?

[00:16:07] Speaker 01:
So that might be that. Yes, it's true that there may have to be looking at what was said at the meeting to determine if the law applies. I do think that that's very relevant as part of the analysis of whether this law, if the first amendment applies, is content neutral, content based.

[00:16:22] Speaker 05:
Would you agree that in that circumstance, then strict scrutiny must be applied?

[00:16:27] Speaker 01:
So we have not argued with respect to the proper standard. Our arguments have been that this is not within the scope of First Amendment scrutiny or its captive audience.

[00:16:37] Speaker 05:
We have to look at it, do we not, in order to determine likelihood of success on the ultimate First Amendment merits?

[00:16:45] Speaker 01:
So we would ask this court to remand to address the proper standard if this is content-based or not, if the court says, yes, the First Amendment applies and no, it's not captive audience.

[00:16:53] Speaker 05:
But that's a factor we have to look at. I mean, we're talking about injunctive relief, is it not?

[00:16:57] Speaker 01:
Well, I mean, this court can remand and allow the court to then consider how to handle that aspect because that's not something this court has addressed.

[00:17:05] Speaker 05:
But the district court issued an injunction here, did it not?

[00:17:10] Speaker 01:
I guess perhaps I'm thinking more in terms of the other case than this particular one, Your Honor. I do apologize. There's a lot in my head right now about them. But I just want to take a step back, though. I understand Your Honor's concern with respect to is this content-based, the looking at the speech. But I just want to reiterate that when we're at the threshold question, I don't think that's the right inquiry. I mean, if you look to the Rumsfeld case, for instance, in that particular case... where the law schools didn't wish to host military recruiters, of course any speech that was involved would have had to relate to military recruiters. They would have been in violation of the law if they had not allowed people to send emails about military recruiters on campus.

[00:17:46] Speaker 01:
That is similarly here about what the content is in the speech, but that law was not a regulation of speech. Many laws impact speech but don't regulate it.

[00:17:56] Speaker 05:
I don't see how you can say that if it depends on what the topic is that's going to be discussed and that... The statute provides – I don't know if exemptions is the right word for politics and political organizations as we discussed previously. But here you've got to look at the actual content of the speech in order to determine whether the statute applies. And I think we have to apply strict scrutiny if that's the case.

[00:18:26] Speaker 01:
I will caveat, like just put a little pin on that because I do think that just because you look at the language of the person's speech, that does not automatically trigger strict scrutiny. I think that follows from the city of Austin cases.

[00:18:37] Speaker 05:
You keep saying it depends on the facts and circumstances. And I'm asking you how that determination is made without looking at what the employer intends to say.

[00:18:48] Speaker 01:
But I think that the more relevant part is this law only comes into effect if there is discipline or a threat thereof.

[00:18:55] Speaker 05:
So we have to at least – If the topic is prohibited and the employee doesn't want to listen to it.

[00:19:00] Speaker 01:
We have to at least get to – the question is really what is the statute regulating? And there is nothing that an employer wants to say that they cannot say under this law. They can say whatever they want.

[00:19:11] Speaker 05:
But they can hold mandatory meetings if permissible topics are being discussed, right? Right. Suppose they want to talk about Judge Bennett's hypothetical, whether or not more money should be thrown into the high-speed rail project. And if so, it's going to put the farmer or whatever it is out of business.

[00:19:32] Speaker 01:
So I know I'm almost out of time, but to answer this question, because I do think this is very important.

[00:19:38] Speaker 01:
Implicit in all of this is the idea that what an employer has is the First Amendment right to say to its employees, because you work for me, you're going to sit in this room and I'm going to lecture and evangelize at you on whatever I want. Right.

[00:19:50] Speaker 05:
But an employer can say whatever I want is you got to do everything you can write letters to your legislators telling the legislator don't fund this project, because if you do, you're all going to be out of work.

[00:20:02] Speaker 01:
But again, an employer can say, I want to have a meeting about the impacts of the high speed rail on our business. They can say, I'd love employees come to this meeting. We can talk about it. I'll share my thoughts. They can send emails about that to their employees. All of that is allowed. But what's really the crux of what's going on here is that that's not that's not what the statute is saying is you can't do that. The statute is saying what you can't do is then say you will sit in that chair and you will listen to me. Or I will fire you.

[00:20:28] Speaker 05:
This is a topic that the legislature does not wish you to address in a mandatory meeting.

[00:20:34] Speaker 01:
But I think that religion and politics, it's not about what the employers want to say. I mean, the legislative history is abundantly clear that this is not about silencing employers. This is not about saying you can't say what you want. It applies no matter their position on religion or politics.

[00:20:48] Speaker 03:
Does the complaint allege that the members of these three organizations want to hold mandatory meetings? Failure to appear at the meeting means you're going to be fired?

[00:20:59] Speaker 01:
No. As far as I'm aware, there's nothing in there that says anything about them being mandatory, Your Honor.

[00:21:05] Speaker 03:
That they want to hold mandatory meetings.

[00:21:06] Speaker 01:
Correct. That they want to hold mandatory meetings as opposed to just meetings discussing politics, which just to reiterate, that is completely permissible.

[00:21:12] Speaker 03:
By mandatory meetings, we mean mandatory meetings where if you don't show up, you're out of here.

[00:21:18] Speaker 01:
Correct. When I say mandatory, I mean implied threat of, that there's a threat of discipline.

[00:21:22] Speaker 05:
If the employer wants to hold a mandatory meeting at which the subject will be compliance with fair employment practices, that's okay.

[00:21:32] Speaker 01:
If the employer is doing it because it's necessary for employees to do their job or a legally obligated training, the law does permit employers to do that.

[00:21:41] Speaker 05:
So that's a permissible topic for a mandatory all-hands meeting.

[00:21:48] Speaker 01:
I understand what Your Honor is getting at, and I just want to bring back to the fact that I really think that this case is very different from the Honey Fund for this reason and what you're getting at, which is that this law just says politics and religion generally. It's not saying we want to silence people because they advocate things we don't like.

[00:22:04] Speaker 05:
It's kind of like Lord Voldemort, you know, he whose name we dare not speak. There are some topics that you can make the subject of a mandatory meeting, and there are other topics – You cannot, but the problem the employers are having is trying to figure out which bucket, which topic bucket it falls in.

[00:22:24] Speaker 01:
I know that I'm over time, but I do want to just answer that one real quick.

[00:22:26] Speaker 04:
And I'm going to have another one.

[00:22:28] Speaker 01:
Oh, no. I'll answer as many as you want. Don't have all yours. I think, though, but there is an easy answer, which is the employer can simply say, I'm going to have a meeting about how the high-speed rail is affecting our business. Anyone who wants to come can. That's totally fine under the law.

[00:22:44] Speaker 04:
So...

[00:22:45] Speaker 04:
So, for example, as I read this statute, an employer could say we're having a mandatory meeting about why we need a crosswalk in front of the building. But they couldn't have a mandatory meeting about we need a crosswalk in front of the building and we need to let the city council know.

[00:23:09] Speaker 01:
I mean, I'm not sure that there's much daylight between the two. Maybe the first one would fall within the second. I think these are really deep in the weeds.

[00:23:17] Speaker 04:
I don't know that the first one would qualify as political matter.

[00:23:20] Speaker 01:
I don't know. There may be some people who would think where crosswalks are is a very political issue in local city councils across the country. But again, I just think it's relevant, though, that there's nothing anyone can point to that indicates that the goal of the legislature here was to silence or censor And the legislative history is abundantly clear. It says multiple times employers can say whatever they want. We're not silencing them. They can talk about politics to their heart's content. They just cannot require employees to listen because they're in this position of power over their employees.

[00:23:53] Speaker 05:
But they can require them to attend if it's an otherwise acceptable topic to the legislature.

[00:24:00] Speaker 01:
I suppose. Look, I think politics and religion really just are different. There's not any evidence that there's some issue where employers en masse are requiring employees come to meetings about why the Dodgers beat the Giants or the Giants beat the Dodgers. There is evidence they're doing these things on politics and religion. And I think that politics and religion are different. They have special solicitude in the Constitution. They're matters at the core of our identity. And the legislature is concerned that, A, This is a real problem where employers require are requiring employees to attend captive audience meetings on these subjects.

[00:24:34] Speaker 01:
And B, these are very important issues. And employers shouldn't be asked to bet the farm on wanting not to go.

[00:24:41] Speaker 05:
The Supreme Court keeps telling us that the answer to these kinds of concerns is more speech.

[00:24:46] Speaker 01:
But how is the answer more speech if an employee is forced to listen but doesn't have the ability to say anything back? An employer can silence them.

[00:24:53] Speaker 05:
Because the Supreme Court has never said that it applies in this kind of a situation.

[00:24:59] Speaker 01:
If you're talking about the captive audience doctrine, yes, and we just may have to agree to disagree, Your Honor. But again, I just go back to this threshold question of does the First Amendment apply? We're talking about employee discipline, and we're talking about the fact that the First Amendment doesn't encompass some power or right to say other people, because I have power over you, regardless of how that happened, because I have power over you, I can force you to listen to me. That's not part of what the First Amendment protects.

[00:25:27] Speaker 04:
All right, thank you, Council. We'll give you three minutes for a rebuttal.

[00:25:30] Speaker 01:
Thank you, Your Honors.

[00:25:33] Speaker 04:
And there are probably some panels of the court where you might want to stay away from the Giants and the Dodgers.

[00:25:58] Speaker 00:
Good morning and may it please the court. Lonnie G. Amela for the plaintiffs.

[00:26:03] Speaker 00:
We are here today on Senate Bill 399, and I know a lot of discussion has been both in the prior case and this morning with my friend about the First Amendment, but there are several other issues, including both Garmin preemption, machinist preemption, and First Amendment rights. But I'll be specific. In each of these three circumstances, going to a hypothetical posed about the content earlier by your honor, is that this is a content-specific discriminatory legislation that chills speech in an environment with the Supreme Court has held never that their captive audience exists.

[00:26:43] Speaker 00:
And for those reasons, we believe that the lower court's decision regarding the preliminary injunction should be upheld.

[00:26:51] Speaker 03:
Tell me why you allege sufficient facts to warrant a pre-enforcement.

[00:26:56] Speaker 00:
Sure, Your Honor. And this goes to the standing issue.

[00:26:58] Speaker 03:
Standing, why you have constitutional standing.

[00:27:01] Speaker 00:
Sure, and I think there's, let me take it in a couple of steps for you. And highlighting.

[00:27:06] Speaker 03:
I mean, you know, there is a big difference between this case the context of this case and the prior case we heard.

[00:27:14] Speaker 00:
Absolutely. And so we talk about the Dry House and the Thomas case, and precedent on this issue has, I believe, used the term toggling between what the standards should be with respect to the standing issue.

[00:27:30] Speaker 00:
The Peace Ranch case, though, is specific. It sets forth three things. But three standard tests. And one of the things is that we should not compel a party seeking a preliminary injunction to violate the law in order to then have the standing to challenge the law.

[00:27:47] Speaker 03:
I understand that, but what facts do you allege here that support your whole case?

[00:27:54] Speaker 00:
Sure. So the first step in it is an intent to engage in conduct That has is covered by the statute and the declarations through the associational standing standards set forth in the net choice versus bond to case last year indicate in each of the declarations that each of my clients themselves hold the meetings and that their members hold meetings discussing these very topics.

[00:28:18] Speaker 04:
But like, for example, I'll just take one of the declarations, the Condi Declaration. Yes, Your Honor. What the Condi Declaration said is that the members held meetings to discuss the impacts of Prop 32. Yes, Your Honor. But it doesn't say, for example, that it was a mandatory meeting. And it doesn't say it says these are now the types of meetings directly impacted by 399.

[00:28:47] Speaker 04:
But without the ticker of or the footnote of mandatory meetings, just the statement held meetings to discuss the merits of Prop 32, that's not illegal.

[00:29:01] Speaker 04:
Even if mandatory meetings about Prop 32 were, there's nothing I see in the condi deck that says these were mandatory meetings about Prop 32.

[00:29:11] Speaker 00:
Sure. Were they?

[00:29:14] Speaker 00:
Well, no, yes, but with an asterisk. This term mandatory to me is a total red herring in the argument because nowhere in the statute is it mandatory. For example, if I hold a meeting as an employer and all hands on deck, I believe, is the term that you used.

[00:29:31] Speaker 03:
So it's in one of the declarations?

[00:29:32] Speaker 00:
Correct. In all hands on deck. It's in one of the declarations. And an employee feels... All hands. Correct. If an employee feels threatened that if I don't go to this meeting, I may be fired, disciplined, written up, not given a job benefit.

[00:29:47] Speaker 03:
There's nothing in the complaint about that.

[00:29:50] Speaker 00:
Well, you have to go through the declaration and there are allegations in the... Or even in the declarations. Well, there are declarations that...

[00:29:59] Speaker 03:
Again, the one declaration that comes the closest with the all hands on. What is that, Lundy? Hold on.

[00:30:06] Speaker 03:
That is Lundy. Lundy. Just a second.

[00:30:09] Speaker 04:
Paragraph five.

[00:30:10] Speaker 03:
Yeah.

[00:30:13] Speaker 03:
It, you know, it says, however, such meetings may be directly impacted.

[00:30:19] Speaker 00:
Correct, Your Honor. But with respect to First Amendment.

[00:30:23] Speaker 00:
There's a deference given in First Amendment cases to that very topic on the standing issue as recognized in footnote seven of the Peace Ranch case, is that the deference must be given in pre-enforcement preliminary injunction measures to standing in First Amendment cases separate from preemption sometimes.

[00:30:42] Speaker 03:
So don't we need some sort of factual basis, at least something?

[00:30:46] Speaker 00:
Well, I believe that the declarations themselves indicate that they hold meetings covering these topics.

[00:30:54] Speaker 04:
You can point out where I've missed it, but in the three declarations I've looked at, I don't even see anything in there. even putting aside this issue of mandatory or not, I don't even see anything in there that says that, and we intend to hold these meetings in the future, or even, and but for Act, is it 399? But for, forgive me if I got the wrong number of the Act, but for the Act, we would hold them in the future.

[00:31:26] Speaker 00:
Correct, Your Honor, but they indicate that- How hard is that to allege? I believe that the statute has the declarations indicate that meetings like this, I believe are the term is are held. I don't believe that there is a thing that says and intend because it is a practice of these organizations themselves to hold the meetings. And I believe it's in either. And I apologize that I have the declarations. I believe it's five, six and seven of the respective declarations that discuss members and their meetings from each of the declarations as well to to hold that standing.

[00:31:58] Speaker 00:
But again.

[00:32:00] Speaker 00:
The issue becomes, from Peace Ranch, have they engaged in conduct prescribed by the statute? Each of the declarations do. And is there no disavowalment by the state of enforcing the statute?

[00:32:15] Speaker 03:
Well, is there any allegation in any of these affidavits or in the complaint as well that the member employees or the plaintiff organizations held meetings like this, whatever meetings you want to call them, mandatory or all hands, and people didn't show up and we fired them.

[00:32:40] Speaker 03:
And we intend to do that in the future. That's what we're going to do. We have all these meetings that we want to hold and we want them mandatory.

[00:32:49] Speaker 03:
And our practice is we take action against employees who don't attend these meetings.

[00:32:54] Speaker 00:
So there is nothing in the declaration indicating that we have terminated people in the past for not attending these meetings.

[00:33:05] Speaker 00:
Again, the statute isn't limited to terminations. I know you talked about the high performer in the dealership or in a salesperson setting before.

[00:33:14] Speaker 00:
There is not indications that that is the case, but again...

[00:33:18] Speaker 03:
I mean, why would an employer want to do that? I mean, it makes no sense to me.

[00:33:23] Speaker 00:
If an employer, the question becomes, it's not a question, Your Honor, of why they want to do it. It is their constitutional right to do so.

[00:33:30] Speaker 03:
Well, I mean, sure.

[00:33:32] Speaker 00:
Well, that's the point, Your Honor, is that they have a standard.

[00:33:37] Speaker 03:
You know, they don't have to have a mandatory meeting to fire a high performer.

[00:33:42] Speaker 03:
They can take... Usually in these cases, somebody said, one of my colleagues said earlier, most of these are at-will employees, right? We're talking about at-will employees. And they can be fired for any reason or no reason at all.

[00:33:55] Speaker 00:
And I think that goes to the standard of why the captive audience test even fails further in this setting, because there is no Supreme Court decision to apply captive audience to a private employment setting...

[00:34:06] Speaker 03:
And these employers are at will— I get all of that, but what I'm going to tell—I'll be honest with this. Judge Talman was earlier that my concern here is with whether you have, in this complaint, in this case, in the context in which you've brought it, whether you have alleged sufficient facts to support constitutional standing.

[00:34:25] Speaker 00:
And I believe for the purposes of a preliminary injunction before Judge— Burton is on the plaintiff. Correct. And we provided standing through the associational standing doctrine and through what each of my three clients do to demonstrate that standing under net choice LLC versus Bonta.

[00:34:41] Speaker 04:
So, so counsel, even on what I think.

[00:34:45] Speaker 04:
comes for me the closest, where you say, in the Lundy deck in five, WGA's members held all-hands meetings to discuss the impacts of PAGA and PAGA reform. However, such meetings may be directly impacted by SB 399.

[00:35:08] Speaker 00:
Yeah, the content of that, Your Honor, is that I It may be because we don't know the purview of whether this is going to be protected conduct or prohibited conduct or chilled conduct under the law.

[00:35:24] Speaker 03:
That goes to the point that I was trying to make earlier. It seems like there's a lot of nuances in this statute.

[00:35:33] Speaker 03:
And it seems like in the allegations, the way the case has been set up, we just don't know. There's not enough evidence.

[00:35:44] Speaker 00:
I would appreciate that.

[00:35:46] Speaker 03:
What you just said right there just embodies notions of speculation.

[00:35:52] Speaker 03:
about what might happen. And that's just not enough to support constitutional standing. But again, if you take a look at the... I mean, you know, I've never been one who's been a big fan of standing, the standing doctrine, because it's malleable. But even if you reduce it down to its bare minimum, the facts here that you've alleged in the complaint and in these three affidavits in my book just don't cut mustard on constitutional standing.

[00:36:18] Speaker 00:
Well, under the Peace Ranch standard... I guess what Your Honor would be asking an employer to do or one of the three declarants is find someone to hold this meeting now and fire them or take action against them. And that's exactly what Peace Ranch says you don't have to do. They say you don't have to engage in the violative conduct in order to seek the preliminary injunction.

[00:36:40] Speaker 03:
You could at least allege.

[00:36:44] Speaker 03:
that you want to hold mandatory meetings. Everybody has to be there. You could have had an employee. One of your members or even one of your own, you know, the California Commerce, whatever the organization, I'm sure there's a bureaucracy, they could have said, they could have provided an affidavit. Instead, you talk about member organizations saying,

[00:37:10] Speaker 00:
Well, we've talked both internally within the respective organizations. I believe the WGA one was one that was discussed and the communications that their members have in it. Again, we have demonstrated that these topics are discussed. And again, even from a First Amendment perspective, the standard that you are espousing is tilted in favor of the plaintiff in this case per the Peace Ranch decision, which states that that standard falls is tilted and more deference is given to the plaintiff to the extent that it can demonstrate that the statute itself is discriminatory.

[00:37:47] Speaker 00:
And I have not yet heard from the state how this statute is not content-based discrimination under the First Amendment or a captive audience case that supports their position. There is none.

[00:38:00] Speaker 05:
They don't really want to reach that question. They want to win on standing. That's how I'm interpreting.

[00:38:05] Speaker 00:
Correct.

[00:38:05] Speaker 05:
Well, I guess that I mean, they don't want us to reach the merits. But let me ask you this. How is this different from an environmental organization that comes in and says our members want to engage in the following activities? We want to go out and visit. the site that is threatened and we want to enjoy nature and see the flora and the fauna. We recognize organizational standing in those cases.

[00:38:29] Speaker 00:
All the time. And that's what the Peace Ranch, the Net Choice LLC versus Bonta and some of the cases that we discussed. The associational standing in the Ninth Circuit has deference to and deference is given from that capacity if they can show that members engage in the conduct. None of the declarations in the lower court were objected to. for foundational or hearsay purposes or anything in that space. And again, when you look at the issues, and I understand the standing issue that Your Honor presented, but from a First Amendment perspective and a Garmin perspective, the statute is preempted by Garmin and Machinists regardless.

[00:39:11] Speaker 05:
And does that apply even though the employer may not currently be unionized and subject to collective bargaining?

[00:39:20] Speaker 00:
Correct. So the standing issue that we were talking about earlier on the First Amendment side doesn't apply to the preemption side on the Garmin and the Machinist.

[00:39:28] Speaker 04:
But on the preemption issue, you're making a facial challenge.

[00:39:31] Speaker 00:
We are making a facial challenge to the statute. I apologize, Your Honor. Let me take it a step back. Yes, we are making a facial challenge to the statute. The preliminary injunction is based on the fact of our ability to show a likelihood of success on the merits. And there is no mention in the brief by the state that the machinist's preemption portion of the lower court decision was in any way faulty. You know, there's nothing in the briefing before this court about that.

[00:40:02] Speaker 00:
And on the Garman side of it as well, too, we looked at it as well and find the same types of things based on the Solano case. And the decision sort of has moved. But. We have the Amazon decision as well. And the Amazon decision, again, isn't referenced anywhere substantively in the state's brief.

[00:40:22] Speaker 04:
Wouldn't you agree that there are applications of the statute that are not preempted?

[00:40:30] Speaker 00:
There are applications of the statute that are not preempted, but for the purposes of a preliminary injunction, and I would draw the court's attention to the Idaho Building and Trades Council case that's cited in our brief, For the portions that are not preempted by Garmin and or Machinist, they are violative of the First Amendment. So, for example, in candor to the court, the religious side, I would.

[00:40:57] Speaker 04:
But I'm limiting my question.

[00:41:02] Speaker 04:
I'd like to limit it to the preemption issue. There are applications of the statute that are not preempted.

[00:41:12] Speaker 00:
There are portions of the statute that are not preempted by Garmin and machinists, but both Salerno and Idaho find that if the statute is preempted or found invalid by another statute, you can piece those together. For example, in Idaho Building and Trade, Three quarters of the statute was preempted by Garmin. The other one was invalidated by the Davis-Bacon Act under prevailing wage. And they, therefore, found that the statute would be held invalid for an injunction standpoint.

[00:41:47] Speaker 04:
But as a total hypothetical question, if we were to hypothetically find there wasn't First Amendment standing here, then preemption would not work an injunction of the entire statute.

[00:42:01] Speaker 00:
Yeah. Hypothetically speaking, yes, but you could use the three in concert with one another to invalidate the entire statute on both preemption and unconstitutional grounds.

[00:42:12] Speaker 04:
But we'd have to look at standing.

[00:42:14] Speaker 00:
On the preemption side, I don't believe you do.

[00:42:17] Speaker 04:
No, but on the First Amendment side.

[00:42:19] Speaker 00:
Correct, but if you look at, again, the cases that are cited to by the plaintiff on the standing in footnote 7, it is not the Peace Ranch standard or the dry house standard that's been espoused by the state. They actually find that much greater deference on standing must be given to plaintiffs in those circumstances and to revert back to Thomas.

[00:42:44] Speaker 00:
But again, with respect to these, Your Honor, I believe that we have pled sufficient facts in the complaint and the declaration, and that when you look at Garmin and machinists and the First Amendment, in each of these three circumstances, there are faults in the law. And for the purposes of a preliminary injunction, not the ultimate merits, the lower court's ruling should be upheld because there was no abuse in discretion on the application of of either of these three standards.

[00:43:15] Speaker 00:
Again, the Garmin is set forth in Amazon, the machinist preemption in the Brown decision, which isn't rebutted by the state. And with respect to the First Amendment cases, you have Honeywell and others, or excuse me, Honey Fund.

[00:43:30] Speaker 00:
and others which are clear pathways on how to show which aren't discussed. And I go back to Your Honor's discussion and a little bit about the at-will discussion. I think they go in concert with one another. There has been no United States Supreme Court precedent to say that an employer cannot, that there is a captive audience from an employer-employee context or to regulate and limit an employer's constitutional right to speak within the workplace. And if an employer wants to have a meeting to say, I want to talk about X, they have the right to do so.

[00:44:06] Speaker 00:
And the fact is that this statute doesn't ban all mandatory meetings. It bans specific meetings based on specific content, which is impermissible under the First Amendment.

[00:44:20] Speaker 00:
And I know I've ran over on my time as well, too. So I'm respectful for Amicus's time to speak as well. Thank you, Your Honor.

[00:44:26] Speaker 04:
Thank you.

[00:44:33] Speaker 02:
Good morning, Your Honors. Brian Killian on behalf of the Amici to address the First Amendment issues. The essential problem with the California law at issue in this case is its content discriminatory nature.

[00:44:46] Speaker 02:
Whether this covers mandatory, whether it covers retaliation threats, however the court concedes with the scope of the specific conduct that the state has emphasized, that conduct is denied to employers only in connection with meetings that California has prejudged to be offensive or to be irrelevant to the workplace. And so for that reason, the law is an unconstitutional content-based regulation of speech. Whether a particular meeting can be mandatory, whether that meeting can be one for which the employer threatens discipline or discharge or otherwise imposes discipline and discharge after the fact can only be determined by looking at the speech that is delivered during that particular meeting.

[00:45:26] Speaker 02:
And so the state's defense of the law as a regulation of conduct, uh, is inconsistent with the text of the law itself. It is a regulation of conduct intertwined with speech. You have to know the content of the employer's speech at the meeting in order for the employer to know what conduct he can do in connection with that meeting, whether he can make it mandatory or reprimand or the like.

[00:45:48] Speaker 04:
Although if one actually putting aside what the attorney general has said about the statute, the statute by its own terms doesn't ban any speech, right? The statute bans consequences based on speech.

[00:46:06] Speaker 02:
Statute burdens consequences. employer's speech by regulating... But it doesn't ban any speech, right? It does not ban speech. It burdens that speech by limiting what employers can do only with specific content. I do want to focus the court on the content discrimination because I think the bigger question of whether a law that just prohibits all mandatory meetings or all reprimands in the workplace would present a very different set of First Amendment issues. Even in RAV versus St. Paul, which was a Supreme Court case about cross-burning, The Supreme Court held that a law that banned cross burning only with intent to intimidate on racial grounds was an unconstitutional regulation of speech because of that second component.

[00:46:48] Speaker 02:
The court didn't have to address. In fact, there are plenty of laws that ban cross burning in and of itself. But it's when the state combines regulation of conduct with a content discriminatory regulation of speech that the First Amendment is triggered. And so the state's attempt to defend the law as a regulation of mere conduct. is inconsistent with the face of the act in addition to the First Amendment. And the captive audience rationale does not sustain the law for that reason as well. The Supreme Court, again in R.A.V. v. St. Paul, was very clear to make note that where a law is content discriminatory, it cannot be upheld as a reasonable time, place, manner restriction.

[00:47:27] Speaker 02:
And the court illustrated that by pointing to two cases that banned residential picketing, Frisbee and Carey. In one of them, Frisbee, a town banned residential picketing. Full stop. And the Supreme Court upheld that ban. But in Cary, the town only banned residential picketing for everything except union and labor-related picketing. And it was that exception. that added a content discriminatory element to the ban on picketing and made that law unconstitutional. It was no longer a reasonable time, place, manner restriction because a content discriminatory law doesn't get the benefit of the reasonable time, place, manner analysis.

[00:48:07] Speaker 02:
And the captive audience rationale also fails for a final reason, which is that it is limited to places. We've been talking about the specific places, but the test that the Supreme Court has given for what unifies those places is that they are ones where a person has an extraordinary personal privacy interest. And up until Hill v. Colorado, that was only ever identified as the home. Hill extended it to hospitals and to medical facilities, but it has never been extended to a myriad of other places, even those places where people feel like they need to be or they want to be, places like the courtroom or like public streets, high school football games, even cemeteries.

[00:48:45] Speaker 02:
There may be difficult choices that a listener faces in those settings where they don't want to hear particular speech and they may feel a desire to leave, but that is not the same thing as being a captive. In your home is your refuge. And for that reason, the home has extra solicitude within the First Amendment. But even then, and I go back to my other point, every one of those cases that apply the captive audience, including Rowan, which they rely heavily on, dealt with a content-neutral limitation to protect the captive audience.

[00:49:16] Speaker 02:
A person could just opt out of being on mailing lists in Rowan for any reason that they wanted, and there was no content discrimination component to that. So in conclusion, and I won't go long unless the court would like to talk anything specific. Our point is that the, Employees here are given a content discriminatory right under the law only to opt out of meetings that relate to politics and to unionization and religion because California has predetermined that those topics, unlike every other topic, are too dangerous, too offensive and too irrelevant for the workplace.

[00:49:51] Speaker 02:
That was unconstitutional and the district court was right to enjoy the enforcement of it. Thank you. Thank you.

[00:50:07] Speaker 01:
Thank you, Your Honors. I'll keep it brief, just a few points.

[00:50:11] Speaker 01:
Again, back to the question of standing. I want to be clear, we're not saying that anyone has to actually violate the law to have pre-enforcement standing. It's enough to say that you want to do what the statute says you can't do, and that you would otherwise do it if you could. That is what's missing here. Standing would also apply as to the preemption claim, and I think it's very salient that none of the things that they point to in the declarations relate to the kinds of situations that the NLRA would preempt. So I think standing is even weaker for preemption.

[00:50:40] Speaker 05:
But the declarations do say that the members would wish to hold meetings on these topics, but for the act. Do they not?

[00:50:52] Speaker 01:
They do, but there is no... arguable or credible interpretation of the statute that prohibits an employer from holding meetings.

[00:51:00] Speaker 05:
But how is that different from the standing we've recognized, for example, in environmental litigation where we've recognized organizational standing to press claims on behalf of their members?

[00:51:13] Speaker 01:
So I think that here... Those particular cases involve the impact of an environmental regulation on the plaintiffs. They say they wish to do things that are impacted by that. Here, we're talking about a pre-enforcement standing, and the test is clear that the plaintiff must establish they want to engage in a course of conduct. that the statute arguably prescribes.

[00:51:32] Speaker 05:
But the declarations address, don't they?

[00:51:35] Speaker 01:
There's no arguable interpretation of the law that prohibits holding a meeting.

[00:51:39] Speaker 04:
Oh, but one of the declarations does talk about an all-hands meeting.

[00:51:44] Speaker 01:
It is.

[00:51:45] Speaker 04:
And there is an arguable interpretation of the law that I think we've gone through at length that would prohibit it or arguably prohibit it if the term all-hands conveys that if you don't come, something may happen to you.

[00:51:59] Speaker 01:
which the declaration doesn't lay out, I think that that's a very thin reed to hang an organizational pre-enforcement standing decision on. I just think that there's not enough here, too much is speculative.

[00:52:09] Speaker 05:
But don't we have to draw, there's sort of a thumb on the scale, is there not? Don't we have to draw the inference, all reasonable inferences in favor of the plaintiff because this involves a First Amendment issue?

[00:52:22] Speaker 01:
I don't know that that's necessarily correct. I know there's solicitude under the First Amendment, but I think at the very least, the person has to say, I want to do what the law does not allow me to do. And there is just not that done here.

[00:52:33] Speaker 05:
That's what the Lundy Declaration says.

[00:52:36] Speaker 01:
I think that that's just too little. There's just too much speculation for standing, especially on a preliminary injunction phase. And I think also it's not that difficult to have said, we want to hold a meeting. We want to make it mandatory. We want to discipline employees who don't come. That's easy to say. And if there were an employer who had come in with a declaration and said, we want to hold a meeting. We want to make it mandatory. We want to discipline employees who don't come. we wouldn't be having this discussion. And plaintiffs have had opportunities. They had the opportunity in the lower court to bolster these declarations.

[00:53:10] Speaker 01:
They chose not to do that. They could have easily done it. I see that my time is out. So I'm happy to sit down unless the court has any further questions for me.

[00:53:19] Speaker 04:
We thank all counsel for their arguments.

[00:53:23] Speaker 04:
We thank Ms. Liske for her multiple arguments.

[00:53:27] Speaker 04:
And with that, this case just argued is submitted and we will take up the final case on the argument calendar today.