New York’s attorney general can now go to court to stop a flyer that hasn’t been mailed, provided the state believes it impersonates a union. Gov. Kathy Hochul signed the law on Sept. 9, and its text reaches anyone who “has engaged or is about to engage” in what it defines as false impersonation.
Oregon passed a cousin of that law last year. California followed in August with a privacy law that a conservative journalist is already challenging in federal court. Each one arrives wearing a fraud or safety label. I run a small firm, raised three sons, and I’ve spent years coaching other people’s kids. Two things get my attention fast: a paycheck deduction and a rigged scoreboard. My argument is short. States can punish real deception. They shouldn’t write the rules so loosely that telling workers about their Janus rights becomes a legal gamble. The fix is tighter text, and courts should insist on it.
Start with what the Supreme Court decided. In Janus v. AFSCME, a 5-4 ruling in 2018, the justices held that nonmembers can’t be charged union fees unless they affirmatively consent. Justice Samuel Alito’s majority opinion cited Thomas Jefferson, who called forcing people to fund opinions they disbelieve “sinful and tyrannical.” A right nobody hears about is a nice sentence in a law book. Groups like the Freedom Foundation exist to tell workers it’s there. The group says its mailings have helped more than 35,000 Oregon workers and nearly 7,500 New Yorkers cancel their memberships.
Oregon moved first. House Bill 3789 lets a union representative collect $6,250 per incident from anyone who uses fraud or misrepresentation to send a message that purports to be union-approved, with intent to undermine the union. The Freedom Foundation sued on Dec. 31. A federal judge dismissed the case in March, and the group appealed to the 9th Circuit. By the group’s math, one mailing equals roughly $1 billion in potential liability. At $6,250 a pop, a flyer starts to look like a hostile bid.
New York borrowed the idea and sanded a few edges. The statute requires specific intent to deceive, and lawmakers dropped a union lawsuit provision from the first draft. The attorney general still gets subpoena power and a $1,000 fine per incident, even against out-of-state senders. The Freedom Foundation says it has shut down its New York outreach and is asking a federal court for an injunction. The Supreme Court has long held that any system of prior restraint carries a “heavy presumption” against its constitutional validity. A statute that lets the state sue over speech it thinks is coming deserves that skepticism.
Who wrote these bills matters. Public-sector unions backed the Oregon bill, and a New York public employees union urged Hochul to sign the New York bill. Unions also collect the dues that opt-outs reduce, and the Freedom Foundation counts over $100 million in lost dues in Oregon. Aristotle flagged the problem more than 2,300 years ago when he wrote that the law is “reason unaffected by desire”. Any coach knows the corollary. The referee shouldn’t draw a paycheck from either team.
California shows the same reflex from another angle. AB 2624, signed August 22 and operative October 1, 2027, lets immigration-services workers send written demands about their images and personal information that last four years. The ban on posting that information applies only when the poster specifically intends to incite imminent great bodily harm or to threaten someone, and violators face damages that start at $4,000. That intent limit matters. Even so, Nick Shirley, whose videos allege fraud at taxpayer-funded groups, sued September 4 in federal court, arguing the law discriminates by viewpoint and chills reporting. Those are allegations. A judge hasn’t decided them.
Janus protects employees from compelled payment. Whether a state can restrict what an outside group says about those rights is a separate First Amendment question, and the answer depends on how each law is drafted.
Fraud is real, and a union has every right to protect its name. A right to urge workers to leave a union carries no right to pose as one, and nobody serious argues otherwise. Frank Abagnale posed as a pilot, a doctor, and a lawyer in “Catch Me If You Can.” He never stitched his real name onto the uniform. The Freedom Foundation has said it puts its contact information on every handout and piece of mail. When a mailer carries the sender’s name, calling it impersonation takes imagination. Hochul’s office says the law shields workers from deceptive communications. If that is the whole purpose, the fix costs nothing. Put it in writing. California says it is guarding workers from threats, a fair goal. Judges in all three states will decide whether the text matches the promise.
The repair is short. Write a safe harbor into every statute so a message that clearly names its sender can’t count as impersonation. Strike the “about to engage” language and make states prove deception after publication. Swap flat per-mailing damages for proof of actual harm. And in California, extend the privacy shield evenly or drop it, so no side of the immigration debate gets a legal edge.
Janus gave public employees a choice. Choices need information. Telling workers about them shouldn’t cost $1,000 a flyer in New York or $6,250 a mailer in Oregon. If the 9th Circuit or a New York or California judge lets these statutes stand, the Supreme Court will have to defend its own ruling. Better that legislators fix the text first. Call yours and ask whether a copy is headed to your state. Brandeis wrote that “sunlight is said to be the best of disinfectants”. Too many statehouses are drawing the blinds.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He writes about issues in finance, constitutional law, national security, human nature, and public policy.