On September 12, Freedom Foundation attorney Timothy R. Snowball appeared before the United States Court of Appeals for the Ninth Circuit in Seattle, Washington to defend the Foundation’s right to offer a counterbalance to Big Labor’s deceptive habits during new employee orientations.

State laws and unions’ collective bargaining agreements often grant union officers exclusive access to newly hired employees, presumably to explain union benefits and procedures. In practice, however, these meetings “typically turn into high-pressure, and completely disingenuous, sales pitches” for union membership.

In March 2021, during an orientation for the newest employees of Washington’s State Department of Labor and Industry, the Washington Federation of State Employees’ (WFSE) presentation to potential dues-payers included a series of attacks directed at the Freedom Foundation.

A recording obtained by the Freedom Foundation revealed WFSE organizer Matthew Reiter’s characterization of the Foundation as the “dark forces aligned against us,” eager to “defund” WFSE’s contract, “lay off employees,” and “reduce benefits,” among other false claims. Predictably, Reiter’s anti-Freedom Foundation rant devolved into a pitch to join WFSE.

Washington state’s rejection of a Freedom Foundation request to offer a fifteen-minute rebuttal to union orientation presentations was the basis of a lawsuit filed by the Foundation in December of the same year.

The state’s actions, Freedom Foundation attorneys argued, constituted “unlawful and deliberate viewpoint discrimination, repugnant to the First Amendment’s purpose, to create a free and robust marketplace of ideas, as well as the Fourteenth Amendment’s guarantee all receive Equal Protection under the law.”

Accordingly, the suit demanded “a declaratory judgment that the exclusive-access meetings are wrong and an order to discontinue the practice of treating the Foundation differently.”

After a district court rejected the lawsuit based on a misapplication of applicable law, the Freedom Foundation requested that the Ninth Circuit judges reconsider.

On Tuesday, Snowball argued that the lower court both failed to identify the “conflict of fact concerning the speech allowed by the department in new employee orientations,” and reached incorrect legal conclusions.

“The specific subject matter that the Freedom Foundation takes constitutional issue with,” Snowball explained, is “that the department has allowed the union to speak on and to target the Freedom Foundation as a political enemy.”

“When the government opens a non-public forum to private speakers to opine on public matters,” Snowball continued, “it has to police the standard that it has itself set.”

While a union can speak to new hires about collective bargaining and dues-paying membership, attacking the Freedom Foundation, “has absolutely nothing to do with their responsibilities,” added Snowball.

Marsha Chen, a representative of the Department of Labor and Industries, argued that the First Amendment “does not require the Freedom Foundation be able to present at a new employee orientation.”

The union’s anti-Freedom Foundation rant was permissible, explained Chen, “because the Freedom Foundation has opposed union priorities, opposed pensions, opposed health care benefits.”

Washington State Labor Council representative Scott Kronland agreed: the union’s speech was “clearly within the scope of the union’s mandate.”

But “what does the statement that the Freedom Foundation is backed by a bunch of billionaires have to do with the union’s activities?” asked Judge Jed Rakoff.

It was only “a wise crack,” responded Kronland.

Snowball concluded that “topics of contentious public concern” raised by unions during orientation presentations “are exactly the kind of topics that are encompassed by the First Amendment,” thereby protecting the Freedom Foundation’s ability to join the conversation.

Should the court decide in favor of the Freedom Foundation’s arguments, government employers will either have to allow the Foundation equal access or reign the unions in to explaining their role as exclusive representatives.