Freedom Foundation

California’s Tone-Deaf Efforts to Silence Public Officials

Every American has the right to speak their mind without fear of being punished by the government. This protection applies to all of us, no matter our position in society. School children, public workers, and yes, even public officials.

The ability of public officials to speak their minds on important issues is particularly important.

If officials are unable to voice their opinions on proposed public policies (like reigning in massive budget shortfalls due to the operation of public sector unions), the voters are unable to exercise democratic oversight and make their own preferences known. So, in the majority of the United States, the free speech rights of officials are recognized and protected.

Unless you live in California.

In California, the government has made it illegal for public officials to give their employees any information about their own constitutional rights. Not only does this “Gag Order,” make little sense, but it violates the First Amendment.

In 2018, the U.S. Supreme Court affirmed in the Janus case that public sector workers have a constitutional right not to give any money to a union. And that if they decide to do so, they are waiving this right, and that waiver must be clearly demonstrated to their employer.

The Janus case overturned forty years of precedent allowing workers’ pay to be skimmed by the unions and was hailed as a victory for workers’ rights.

But unfortunately for California workers, on the very day that Janus was decided, Gov. Jerry “Moonbeam” Brown signed SB 866 into law. This timing of this bill was not a coincidence. SB 866 was specifically designed to prevent employees from knowing about their rights.

Under this Gag Order, public employers telling employees anything which could “deter or discourage” them from becoming or staying union members (like telling them about their constitutional rights affirmed in the Janus case), could be accused of a labor violation, and hauled in front of PERB.

As a result, public officials across the state must bite their tongues out of fear that one verbal misstep could land them in legal hot water.

But all is not yet lost. Because the Gag Order distinguishes between one kind of speech it likes (pro-union) and one kind of speech it doesn’t (Janus), it runs afoul of the First Amendment, which forbids the government from making this kind of distinction. Furthermore, because it discourages speech that public officials would otherwise want to make, it is also unconstitutional.

Hence, the legal grounds for challenging the Gag Order are strong. What is missing is a group of public officials in California with the guts to push back on this blatant tyranny.

Unless they are willing to fight for the First Amendment, hundreds of thousands of public workers will remain in the dark about their constitutional rights, and the unions in California will continue to reap a windfall in money to be used in pushing leftist politics.

The choice is no choice at all.