In California Chamber of Commerce v. Bonta, (9th Cir., Oct. 29, 2026), the U.S. 9th Circuit Court of Appeals upheld a California federal district court's injunction that bars California from enforcing against businesses Senate Bill 399 which prohibits employers from threatening or taking adverse action against an employee who chooses not to attend an employer-sponsored meeting or receive employer-sponsored communications where the purpose is to communicate the employer's views on political or religious matters. The court said in part:
[T]he relevant question is whether SB 399 is a constitutionally permissible limitation on the industry groups’ free speech right....
... California, “acting as censor, undert[ook] selectively to shield the public from some kinds of speech on the ground that they are more offensive than others.”... The Supreme Court has said that “[s]uch selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, or the degree of captivity makes it impractical for the unwilling . . . auditor to avoid exposure.”... In such circumstances, California’s ability to limit “discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.”...
California fails to identify a single case where a content based restriction has been upheld because employees were deemed a captive audience or had their substantial privacy interests invaded in an essentially intolerable manner. Instead, the State points to cases upholding speech limitations on public transit, at healthcare facilities, and on school premises, which referred to commuters, patients, and students as captive audiences.... California contends that employees are equally captive because they are economically dependent on their employer and risk losing their job, with its pay and benefits, should they refuse to listen to their employer’s speech....
California’s argument goes too far. Both the Supreme Court and our Court have referred to “captive audiences” only when the government acts as a proprietor or in the context of content-neutral time, place, and manner restrictions. Neither court has relied on a “captive audience” theory to identify a compelling interest sufficient to uphold content-based restrictions on nongovernmental speech in a nongovernmental setting....
San Francisco Chronicle reports on the decision.
