Ninth Circuit Holds that California’s Captive-Audience Ban Violates the First Amendment

In a unanimous opinion, a three-judge panel of the Ninth Circuit held that California’s ban on “captive-audience” meetings violates the First Amendment. The court explained that the ban regulates speech based on the speech’s content. As a content-based regulation, the ban triggered the strictest level of constitutional review—“strict scrutiny.” The ban could not pass that test. It effectively inserted the state into a private debate to silence one side. And if the First Amendment forbids the government from doing anything, it forbids it from doing that. 

The court’s opinion affects the parties in the case, employers in California generally, and very likely employers in the nine states covered by the Ninth Circuit (four of which have similar bans on the books). These bans are functionally identical to California’s, so the opinion likely means that they are also unenforceable. 

Notably, the National Labor Relations Board (NLRB) also treats mandatory, employer-sponsored meetings as unlawful. But that position clashes with the Ninth Circuit’s opinion, explaining that strict scrutiny applies to any ban on meetings that depends on the meetings’ content. The same test would apply to the NLRB’s position—a result that puts the position on shaky ground in the Ninth Circuit. 

California Bans Mandatory Meetings about Labor Issues

Passed in 2024, California’s ban applied to a range of mandatory workplace meetings. Broadly, it forbade employers from requiring employees to attend meetings about “religious” or “political” subjects. It then defined “political” subjects to include labor organizing and labor unions. So in effect, it forbade employers from holding mandatory meetings to talk about labor issues.

That ban was hardly unique at the time, but part of a nationwide trend. Ten other states had banned captive-audience meetings. Those states included other western states, like Oregon and Hawaii, both of which are in the Ninth Circuit. 

Soon after it was passed, the ban was challenged in court. A coalition of local trade associations sued the state attorney general, arguing that it was invalid for two reasons. First, they said it was preempted by the National Labor Relations Act, which explicitly protects an employer’s speech about labor issues. Second, it violated the First Amendment, which almost always forbids the government from regulating speech based on its content.

The Ninth Circuit Holds that the Ban Is Unconstitutional

The Ninth Circuit agreed. To start, the court held that the First Amendment applied to the ban because the ban regulated speech. The ban did not simply regulate meetings at work; it applied only to meetings that included certain messages. So it was the messages, not the meetings, that were regulated. 

The court then held that the ban regulated speech based on content. The court reasoned that the ban either applied (or didn’t apply) depending on what the employer said. That is, to decide whether it applied, a court would have to look at the speech’s content. That made the ban a content-based regulation. And as a content-based regulation, it had to satisfy the highest form of constitutional review—“strict scrutiny.” 

To pass strict scrutiny, a speech regulation must be narrowly tailored to a compelling government interest, and California’s ban was not. The state pointed only to one significant interest—protecting “captive” employees from unwelcome messages. But that interest was unsupported by the caselaw. While courts have sometimes allowed the government to protect captive audiences, they have always done so in governmental settings (e.g., protecting kids while they are attending classes in public school). Courts have never allowed the government to regulate purely private speech in a private setting simply because a private listener may not like the message.

The Ninth Circuit’s Opinion Casts a Long Shadow

The opinion is important for at least three reasons. First, it makes immediately clear that California cannot enforce its ban. Employers in the Golden State need not muzzle their labor-related speech just to avoid the state’s law. Second, it likely means bans in some other states cannot be enforced either. Today, bans are in place in four other states in the Ninth Circuit—Oregon, Hawaii, Alaska, and Washington State. The opinion’s logic would apply to these bans as well. Third, the opinion likely means that bans cannot be enforced in the Ninth Circuit by federal officials either. The First Amendment applies equally to the federal government; a federal agency can no more restrict speech than a state lawmaker.

That last point is especially relevant now. In 2024, the NLRB changed its longstanding position on captive-audience meetings and concluded that the meetings violate the National Labor Relations Act. That stance clashes with the Ninth Circuit opinion, which suggests that any ban on labor-related speech is suspect. Regardless of the statute at issue, a ban on labor-related speech is a content-based regulation. So any such ban would have to satisfy strict scrutiny—which it probably cannot do.

Going forward, employers in the Ninth Circuit should feel more confident about expressing their views on labor issues. Elsewhere, employers should continue to work closely with counsel to understand the regulatory landscape. Though the Ninth Circuit’s opinion blocks California from enforcing its ban, bans remain on the books in other states.