Eugene, OR – The Freedom Foundation today appealed to the 9th Circuit Court of Appeals after a district court judge last week dismissed its case challenging Oregon HB 3789, subjecting the organization to potentially millions of dollars in penalties for the crime of informing public employees about their constitutional rights.
In Freedom Foundation v. Rayfield, et al., the organization’s attorneys argued the statute is not a legitimate anti-fraud measure but an unconstitutional attempt to silence speech opposed by unions and their legislative allies.
The Freedom Foundation will now take the fight to the 9th Circuit.
Under the district court’s reasoning, the organization cannot preemptively challenge the statute and must operate under the threat of ruinous financial penalties and can only raise constitutional challenges to the statute as a defense.
“We remain confident in the strength of our constitutional arguments,” said Freedom Foundation Litigation Counsel Rebekah Schultheiss. “HB 3789 uses undefined terms and severe financial penalties to stifle speech the unions don’t like.”
“The First Amendment doesn’t allow that,” she added, “and we will continue fighting until this law is recognized for what it is.”
HB 3789, which took effect on Jan. 1, allows unions to sue the Freedom Foundation for “impersonating” a union.
Key terms like “misleading impression” and “intent to undermine,” however, are deliberately left undefined, virtually guaranteeing a union-sympathetic judge could interpret them in ways that would damage the Freedom Foundation.
More to the point, the vagueness of the statute’s wording makes violations impossible to predict or effectively avoid, forcing the organization to scale back its outreach to workers.
This “chilling effect” is exactly what the Oregon Legislature intended when it passed HB 3789.
During floor debate over the measure, supporters — almost exclusively labor officials — were unable to cite a single instance in which the Freedom Foundation ever impersonated union representatives.
Rather, the Oregon Legislature pointed to the group’s informational materials as the reason to pass HB 3789, making little effort to disguise the reality that its intent is to impede the Freedom Foundation’s efforts to educate public-sector workers about their First Amendment right to decline union membership and dues without losing their job.
“This dismissal will not silence us,” said Freedom Foundation CEO Aaron Withe. “What’s at stake here is bigger than just our organization. It’s whether the government can use vague laws and financial threats to silence speech it doesn’t like. Workers have a constitutional right to know their options, and we’re taking this fight to the 9th Circuit to protect it.”
