The panel affirmed the district court’s preliminary injunction preventing California from enforcing California Senate Bill (SB) 399, which prohibits an employer from subjecting, or threatening to subject, an employee to adverse action if the employee chooses not to attend an employer-sponsored meeting or receive communications from the employer, the purpose of which is to communicate the employer’s opinion about religious or political matters.

​

Before SB 399 went into effect, three industry groups—the California Chamber of Commerce, the California Restaurant Association, and the Western Growers Association—sued the California Attorney General, the California Labor Commissioner, and the Division of Labor Standards of the California Department of Industrial Relations (collectively, “California”) to enjoin enforcement. The industry groups contend that SB 399 violates their First Amendment right to free speech and is preempted by the National Labor Relations Act.

​

The panel first held that the Western Growers Association has established standing at this stage where (1) at least some of its members have held “all-hands” meetings to communicate their opinion on political matters and would continue to do so if SB 399 were not in effect; (2) such meetings arguably violate SB 399; and (3) there is a credible threat of enforcement, either by California or by affected employees. Because the panel concluded that the Western Growers Association has standing, it did not address the standing of the other industry groups.

​

Turning to the district court’s decision to grant a preliminary injunction, the panel first rejected California’s contention that SB 399 does not implicate the First Amendment. Because employers are forbidden from taking adverse action only if they communicate certain messages at the underlying meeting, the law inevitably singles out employers based on their expressive activity. Accordingly, the First Amendment applies.

​

The panel next held that strict scrutiny applied. SB 399 is facially content-based because it applies only when the employer has discussed certain topics: politics and religion. The law is also speaker-based because it is triggered only by speech communicating the employer’s opinion about religious or political matters.

​

Applying strict scrutiny, the panel rejected California’s assertion that SB 399 is constitutional as a protection of a “captive audience.” The panel explained that both the Supreme Court and this 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. Accordingly, the panel concluded that the industry groups are likely to succeed on the merits of their First Amendment claim.

​

Because the panel concluded that the industry groups are likely to succeed on the merits of their First Amendment claim, and California does not challenge the district court’s determination that the remaining preliminary injunction factors are met, the district court did not abuse its discretion by granting the preliminary injunction.

​

The panel did not reach the industry groups’ preemption claim.

​

https://cdn.ca9.uscourts.gov/datastore/opinions/2026/10/29/25-6874.pdf