Judge Denies State’s Move to Dismiss ‘Captive Audience’ Challenge

Issues & Policies

A federal judge has denied the state of Connecticut’s motion to dismiss a lawsuit challenging the state’s controversial captive audience law.

The June 28 ruling by U.S. District Judge Kari Dooley allows the suit, filed last November by CBIA, the U.S. Chamber of Commerce, and a coalition of employer groups, to proceed.

Connecticut’s captive audience law took effect July 1, 2022 and threatens employers with liability for speaking with employees about a range of workplace issues, including pending laws or regulations.

The National Federation of Independent Business, National Retail Federation, Connecticut Retail Merchants Association, Coalition for a Democratic Workplace, National Association of Home Builders, Associated Builders and Contractors, and Associated Builders and Contractors of Connecticut are all part of the coalition.

The law drastically restricts employers from communicating with employees about “political matters,” with that term broadly defined to include legislative and regulatory proposals and participation in civic and community organizations.

The state legislature approved the measure following a decade-plus of failed attempts to pass similar legislation.

‘Chilling Speech’

The employer coalition lawsuit states that Connecticut law violates the First and 14th amendments of the U.S. Constitution “by discriminating against employers’ viewpoints on political matters” and “chilling and prohibiting employer speech.”

The state filed its motion to dismiss the lawsuit in December, claiming Connecticut’s law regulated employer conduct in the workplace, not speech.

Assistant Attorney General Timothy Holzman told the hearing Connecticut’s law only prohibited employers from disciplining employees who refused to participate in certain workplace meetings.

The lawsuit claims Connecticut’s law violates the U.S. Constitution by “chilling and prohibiting employer speech.”

“It’s not about the meetings or the communications,” he said. “It’s about the threat.”

Judge Dooley, however, made numerous references to the lawsuit’s language.

“They [the plaintiffs] are, as a practical matter, being told they can’t have these mandatory meetings,” she said.

Organizational Standing

Judge Dooley ruled that CBIA had asserted “adequate organizational standing” to participate as a plaintiff in the case.

“There is harm in being forced to modify one’s behavior,” she said.

Plaintiffs’ attorney Bryan Killian of Morgan Lewis & Bockius LLP told the court that a “reasonable” interpretation of the statute was all that was needed to deny the state’s motion to dismiss the suit.

“It is reasonable to assume that a contemplated mandatory meeting might lead to a threat of enforcement.”

Plaintiffs’ attorney Brian Killian

“Because plaintiffs and their employer members are already being chilled from exercising their rights under the First Amendment and the NLRA, their injuries are ongoing,” plaintiffs’ attorneys noted in their filing challenging the state’s motion.

Judge Dooley also ruled that Connecticut Attorney General William Tong and Department of Labor Commissioner Danté Bartolomeo were properly named as defendants.

She dismissed the Department of Labor as a defendant, citing sovereign immunity concerns.

Next Steps

U.S. Chamber Litigation Center chief of staff and associate chief counsel Stephanie Maloney said the chamber was “pleased with the court’s decision, and we look forward to continuing to litigate this case on the merits.”

“This law is at odds with well-established First Amendment and National Labor Relations Act precedents regarding the free speech rights of employers,” she said.

Tong’s office issued a statement following the judge’s ruling promising to continue defending the captive audience law.

“We must protect the constitutional rights of employers to manage their workplaces free from government overreach.”

CBIA’s Chris DiPentima

“While we disagree with the judge’s decision today to not dismiss on jurisdictional and other grounds, it is a preliminary decision, and we will continue to defend the legislation,” the statement read.

CBIA president and CEO Chris DiPentima called the captive audience law “an unnecessary and unconstitutional infringement on the rights of employers to communicate with employees in the workplace.”

“We must protect the constitutional rights of employers to manage their workplaces free from government overreach,” he said.


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