Eight years after the Supreme Court's landmark Janus v. AFSCME decision, which barred public-sector unions from compelling non-members to pay fees, the justices have largely avoided revisiting the issue. But two new state laws could force the court's hand, potentially turning a symbolic victory for workers' rights into a concrete constitutional showdown.
Oregon and New York have enacted nearly identical statutes that, on their face, aim to prevent organizations from fraudulently impersonating labor unions. Such measures sound benign—fraud is already illegal, and no one has a constitutional right to deceive workers. However, these laws are specifically designed to target the Freedom Foundation, a national watchdog that informs government employees of their right to decline union membership and assists them in exercising that right, often against union resistance.
The Oregon law, passed last year, prohibits falsely impersonating a union representative and imposes statutory damages of $6,250 per incident. The Freedom Foundation filed a federal lawsuit challenging the measure, arguing that its communications are clearly identified and that the law chills protected speech. After a district court dismissed the case, the organization appealed to the 9th Circuit.
New York's Civil Service Law Section 216, enacted this spring, authorizes Attorney General Letitia James to act when she believes someone has engaged—or is “about to engage”—in prohibited communications, with fines of $1,000 per violation. The Freedom Foundation sued New York on September 28.
The constitutional problem, as the foundation sees it, lies not just in prosecution but in the chilling effect before any enforcement. During legislative testimony, union backers offered no evidence that the Freedom Foundation has misled anyone. Yet under these laws, the group must now weigh whether a mailing, ad, or email could later be branded a “material omission” or “other deception” by a partisan official. This uncertainty, the foundation argues, makes speech prohibitively risky.
“That is how speech gets chilled,” the organization's vice president, Jeff Rhodes, wrote. “You don't necessarily need to censor someone outright when you can make speaking prohibitively risky.”
Since Janus, unions and their allies have devised various mechanisms to make opting out more difficult. The Freedom Foundation has represented dozens of workers seeking to resign, and has repeatedly asked the Supreme Court to intervene in post-Janus disputes—including cases involving resignation restrictions and refusal to accept opt-out paperwork. The court has declined every appeal, a silence that Rhodes argues has emboldened unions and lawmakers.
“When the Supreme Court stubbornly refuses to police its own boundaries, those regulated by the decision inevitably begin testing how far they can go,” he said. The Oregon and New York laws represent that next step: beyond making it harder for employees to exercise their rights, they now try to suppress the information workers need to make an informed choice.
Neither Janus nor the First Amendment addresses fraud; states already have legitimate tools to punish actual deception. But these laws use the threat of fraud allegations as a pretext to muzzle dissent. “Public officials should not be empowered to threaten speakers with potentially enormous penalties based on vague standards whose application rests largely on the political sympathies of those enforcing them,” Rhodes added.
The cases carry significance beyond the Freedom Foundation. If they reach the Supreme Court, the justices could finally send an unambiguous message to government employee unions. “For eight years, the Supreme Court has largely watched from the sidelines while unions and sympathetic lawmakers probed the limits of Janus,” Rhodes wrote. “Enough is enough. A constitutional right that governments can burden, obstruct, or frighten people out of exercising is no right at all.”
The court drew a line in the sand with Janus in 2018. If either Oregon's or New York's law lands on their docket, the justices should make clear that line is carved in stone.
