Albany, NY — The Freedom Foundation will file suit today suit against the state of New York over a new law that subjects watchdog groups like itself to investigation, restraint and hefty fines for the crime of informing public employees about their First Amendment right to decline union membership and dues.
Freedom Foundation attorneys are also asking the court for a preliminary injunction to block the law while the case moves forward.
The lawsuit, to be filed in the U.S. District Court for the Northern District of New York against state Attorney General Letitia James, argues the law violates the First Amendment.
Signed by Gov. Kathy Hochul on Sept. 9, the measure is billed as a crackdown on people who impersonate unions. But it gives the AG ability to preemptively investigate and subpoena anyone she believes is “about to” send a prohibited message.
The new law empowers courts to stop speech before it happens by threatening violators with fines of $1,000 per “incident” without ever defining what such an infraction would look like.
Every Freedom Foundation mailer and opt-out form is clearly marked as coming from the organization, not a union, but the question of whether it constituted a breach of the new law would rest entirely in the hands of partisan politicians.
“New York’s government unions had a choice,” said Freedom Foundation CEO Aaron Withe. “They could make the case to their own members why they’re worth the money, or they could get the state to make it illegal to hear any other point of view. They chose the latter.
“Telling a public employee the truth about their constitutional rights isn’t impersonation,” he said, “and it isn’t a crime. We’re asking the court to say so.”
In 2018, the U.S. Supreme Court’s Janus v. AFSCME ruling affirmed that no public employee can be forced to pay a union to keep his or her job. The Freedom Foundation works to make sure workers know that.
Its outreach efforts have helped nearly 300,000 public employees nationwide leave their union, including 7,500 in New York.
“The First Amendment doesn’t allow a state to pick a side in a debate and then punish the other side’s speech,” said Freedom Foundation Deputy Chief Litigation Counsel Shella Alcabes. “That’s exactly the kind of chilling effect the Constitution forbids.”
New York’s law closely mirrors Oregon’s HB 3789, which the Freedom Foundation is also challenging in Freedom Foundation v. Rayfield, currently before the 9th Circuit Court of Appeals.
“Oregon wrote this playbook, and New York copied it,” Withe said. “If other states are thinking about doing the same, they should know we’ll be in court there, too.”
