The state of Oregon passed a law last year that should outrage every American who believes in the First Amendment.
Not because it bans speech outright. Not because it targets a newspaper or a broadcaster. Because it targets a letter. An email. A text message. A conversation telling public employees they have a constitutional right to opt out of their union.
That’s what Oregon made illegal.
The Freedom Foundation has been communicating with public employees for years. We do it because back in 2018 the U.S. Supreme Court affirmed in Janus v. AFSCME that every government employee has a constitutional right to decline union membership and dues — a right workers will never find out about if they’re waiting for their union to inform them of it.
Someone else, most likely the Freedom Foundation, has to do it for them.
Oregon’s HB 3789, which took effect Jan. 1, was written specifically to shut down our outreach activities in that state — and potentially others. Egged on by their union puppet masters, lawmakers in that state approved legislation threatening heavy financial penalties for what the law describes as impersonating a labor union.
Mind you, backers of the bill couldn’t cite a single example in which Freedom Foundation marketing materials had done so. But actual guilt was never the point.
Because the measure was intentionally written so broadly, a labor-aligned judge could conceivably interpret just about any overture to union members as a violation of the new standard and impose a fine of $6,250 per communication.
Not a single verified incident of fraud. No impersonation. No real victims. Just a law designed to make one organization stop sending workers accurate information about their rights.
We challenged the measure in federal court the moment it took effect, but a District Court judge dismissed the case. It has since been appealed to the Circuit Court.
Meanwhile, no doubt motivated by Oregon’s audacity, New York last month introduced SB 9577.
It is the same bill. Not similar, but identical.
The statutory language is parroted word for word with only one meaningful difference: New York's penalty is $15,000 per incident, more than double the Oregon fine.
They didn’t copy Oregon’s model. They made it even more unconstitutional.
Not to be outdone, Hawaii’s SB 3055, introduced in late January, has already passed the full Senate, cleared its first House committee, and is scheduled for a final hearing this week.
The Freedom Foundation has been singled out by name as the bill’s target. One union operative told Hawaii legislators our mailers are “deceptive.” Another was more candid than he probably intended to be, testifying that the bill was specifically meant to “get out in front of” the Freedom Foundation’s outreach to union members and citing Oregon as the motivation.
According to the Hawaii AFL-CIO, the bill simply “requires honesty about who is speaking and whether that speech is authorized.”
That’s their defense. We’re not honest about who we are.
In fact, our mailers always state exactly who sent them. Workers know these aren’t the union’s words. The argument isn’t about deception, it’s about the reality that workers are reading the information and exercising their rights.
That’s the crisis unions are trying to address, and passing a law is how they’re doing it.
Three states. Identical legislation. In the span of a few months. Our 9th Circuit appeal in Freedom Foundation v. Rayfield hasn’t even been decided yet, and New York and Hawaii are already advancing the same framework.
The coordination is neither subtle nor coincidental.
If our information was actually misleading, unions would have given examples. They would have produced workers who were confused or deceived.
They didn’t, because they couldn’t. The problem isn’t the content. The problem is that workers are leaving in numbers Big Labor can’t ignore.
When you can’t win the argument, you make the argument illegal. At least in deep-blue states whose elected leaders owe their jobs to huge infusions of union cash.
Oregon proved the strategy works, at least long enough to tie up the opposition in federal court while the dues keep flowing. Now New York and Hawaii are trying to lock in the same model before the courts can stop them.
If they succeed, other states will surely follow. They have to because without an unconstitutional Hail Mary pass, government employee unions are destined for extinction.
Every legislature that takes up one of these bills is answering a simple question: Do workers have a real right to opt out, or just a theoretical one that no one is allowed to tell them about?
Aaron Withe is the CEO of the Freedom Foundation, a nonprofit organization dedicated to protecting workers' rights and advancing employee freedom across America.
