United Food & Commercial Workers Local 99 v. Bennett (934 F. Supp. 2d 1167, 2013)

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court are five motions for summary judgment: PlaintiffIntervenors’ Motion for Partial Summary Judgment as to the Constitutionality of SB 1365 (Doc. 156), Plaintiffs’ Motion for Summary Judgment re: SB 1365 (Doc. 158), Plaintiffs’ and Plaintiff-Intervenor SEIU Arizona’s Joint Motion for Partial Summary Judgment regarding SB 1363 (Doc. 160), Defendants Horne and Bennett’s Motion for Summary Judgment re: SB 1363 (Doc. 165), and Defendant Horne’s Motion for Summary Judgment re: SB 1365 (Doc. 166). For the reasons discussed below, Plaintiffs’ and Plaintiff-Intervenors’ Motions are granted as to SB 1365 and granted in part and denied in part as to SB 1363. Defendant Horne’s Motion as to SB 1365 is denied and the two Defendants’ Motion as to SB 1363 is granted in part and denied in part.

BACKGROUND

In 2011, two Arizona bills were signed into law: SB 1363 and SB 1365. (Doc. 8 at 2-3.) Generally speaking, SB 1363 is a series of amendments and additions to existing law relating to harassment, trespass, assembly, and picketing in the context of labor relations. SB 1363, 50th Leg., 1st Reg. Sess. (Ariz. 2011). SB 1365 adds a new section to Chapter 2, Title 7 of the Arizona Revised Statutes relating to paycheck deductions. SB 1365, 50th Leg., 1st Reg. Sess. (Ariz. 2011). The details of these laws are explained in their respective sections below.

On May 9, 2011, Plaintiffs, a group of unions and their officers and members, filed suit for injunctive and declaratory relief. (Doc. 8 at 1, 5-6.) Plaintiffs challenged both statutes as unconstitutional. {Id. at 2.) Plaintiff-Intervenors, a second group of unions and members who also wished to challenge the two statutes, were granted permission to intervene on June 20, 2011. (Doc. 47.) Plaintiffs and Plaintiff-Intervenors both moved for preliminary injunctions to prevent SB 1365 from going into effect (Docs. 14, 77), and on September 23, 2011, this Court granted Plaintiff-Intervenors’ Motion for Preliminary Injunction on the ground that they were likely to succeed on their claim that SB 1365 violated the First Amendment. 817 F.Supp.2d 1118 (D.Ariz.2011).

Plaintiff-Intervenors now move for summary judgment as to SB 1365 on the grounds that: SB 1365 (1) is viewpoint discriminatory in violation of the First Amendment, (2) violates the equal protection clause, (3) is unconstitutionally vague, and (4) imposes unconstitutional conditions on payroll deductions. (Doc. 156.) Plaintiffs, in a separate Motion for Summary Judgment, incorporate all arguments made by Plaintiff-Intervenors against SB 1365, but argue additionally that the Court should find that SB 1365 is preempted by federal law. (Doc. 158.) Defendant Horne, in a Cross-Motion for Summary Judgment, contends that SB 1365 is constitutional under either strict scrutiny or rational basis review and is not preempted. (Doc. 166.)

In addition, Plaintiffs and Plaintiff-Intervenor SEIU Arizona bring a Joint Motion for Summary Judgment contending that SB 1363 is unconstitutional because: (1) it is viewpoint discriminatory, (2) it imposes unconstitutional restrictions on assembly, and these restrictions are preempted by the National Labor Relations Act (“NLRA”), (3) it unconstitutionally restricts speech about employers, (4) it unconstitutionally prohibits labor picketing and secondary boycotts, (5) the wage withholding provision is unconstitutional, and (6) it provides unconstitutional remedies. (Doc. 160.) Defendants Horne and Bennett, in a second cross-motion, assert that they are entitled to summary judgment because SB 1363 is constitutional. (Doc. 165.)

ANALYSIS

I. Legal Standard for Summary Judgment

Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.P. 56(c). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party opposing summary judgment “may not rest upon the mere allegations or denials of [the party’s] pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); see also LRCiv. 1.10(l)(1) (“Any party opposing a motion for summary judgment must ... set[ ] forth the specific facts, which the opposing party asserts, including those facts which establish a genuine issue of material fact precluding summary judgment in favor of the moving party.”). If the nonmoving party’s opposition fails to specifically cite to materials either in the court’s record or not in the record, the court is not required to scour the entire record for evidence establishing a genuine issue of material fact or obtain the missing materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir.2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir.1988).

II. Constitutionality of SB 1365

SB 1365, or the “Protect Arizona Employees’ Paychecks from Polities Act,” amends Title 23, Chapter 2, Article 7 of the Arizona Revised Statutes by adding Section 23-361.02. SB 1365, 50th Leg., 1st Reg. Sess. (Ariz. 2011). The statute requires employees to annually provide written or electronic authorization to their employers if they wish to allow paycheck deductions “for political purposes.” Á.R.S. § 23-361.02(A) (2011). In addition, if an entity vwshes to collect funds through payroll deductions, it must either affirm to the employer that none of its general fund is used for political purposes or specify the percentage of its fund that will be so used. Id. § 23-361.02(B). If the entity ends up spending more of its fund on political purposes than it initially reported to the employer, it is subject to a minimum civil fine of $10,000. Id. § 23-361.02(D). “Political purposes” are defined in the statute as “supporting or opposing any candidate for public office, political party, referendum, initiative, political issue advocacy, political action committee, or other similar group.” Id. § 23-361.02(1).

The general application of SB 1365 is accompanied by a wealth of exceptions, such as deductions for savings or charitable contributions and -deductions for employee health care, retiree, or welfare benefits. Id. § 23-361.02(E)(2), (3). Thus, entities that collect funds for these purposes are permitted to use those funds for “political purposes” without subjecting themselves to a projected percentage limitation on such spending. In addition, SB 1365 exempts from the definition of “employee” any “public health safety employee, including a peace officer, fire fighter, corrections officer, probation officer or surveillance officer, who is employed by this state or a political subdivision of this state.” Id. § 23-361.02(H). Thus, entities that collect funds through payroll deductions from these employees are also free from the requirement that they provide, in advance, binding limits on their annual political spending to employers.

SB 1365 also provides that an employee may rescind payroll deduction authorization for any organization from which she has resigned. Employers are prohibited from processing payroll deductions for employees who have submitted written notice of their rescissions. Id. § 23-361.02(F).

In the Order granting a preliminary injunction against enforcement of SB 1365, this Court found that Plaintiff-Intervenors were- likely to succeed in demonstrating that SB 1365 was facially unconstitutional because it is viewpoint discriminatory. Plaintiff-Intervenors renew that argument in their Motion for Summary Judgment, as well as asserting that SB 1365 violates the equal protection clause, is impermissibly vague, and imposes an unconstitutional condition on paycheck deductions. Plaintiffs make the additional argument that SB 1365 should be declared unconstitutional because it is preempted by § 302 of the Labor Management Relations Act (“LMRA”), and assert that the Court should reach the preemption issue first. In response, and in a cross-motion for summary judgment, Defendant Horne contends that SB 1365 is neither viewpoint discriminatory nor preempted, and that it is otherwise constitutional.

A. Preemption

As the Supreme Court has noted, preemption claims, though “constitutional in nature,” are “treated as ‘statutory’ for purposes of our practice of deciding statutory claims first to avoid unnecessary constitutional adjudication.” Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 272, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977). Though preemption is grounded in the Constitution’s Supremacy Clause, its analysis involves interpretation of federal and state statutes, and the result is subject to legislative overruling. Id. at 272, 272 n. 6, 97 S.Ct. 1740. Thus, in the interest of avoiding unnecessary constitutional issues,- the Court addresses Plaintiffs’ preemption claim before reaching Plaintiff-Intervenors’ First Amendment claim. See, e.g., Philadelphia v. New Jersey, 430 U.S. 141, 141-42, 97 S.Ct. 987, 51 L.Ed.2d 224 (1977) (noting that the federal preemption issue should be resolved before the constitutional issue).

Federal law may preempt state law in three ways: (1) express preemption, where Congress states in express terms the preemptive effect of a federal law, (2) field preemption, where “federal regulation in a particular field is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” and (3) conflict preemption, where “compliance with both federal and state regulations is a physical impossibility.” Aguayo v. U.S. Bank, 653 F.3d 912, 918 (9th Cir.2011) (quoting Bank of Am. v. City & Cnty. of San Francisco, 309 F.3d 551, 558 (9th Cir.2002)).

Plaintiffs rely heavily on SeaPak v. Industrial, Technical & Professional Employees Division of National Maritime Union, AFL-CIO to argue that SB 1365 is subject to both field and conflict preemption. 300 F.Supp. 1197 (S.D.Ga.1969) aff'd sub nom. Seapak v. Indus., Technical & Prof'l Employees, 423 F.2d 1229 (5th Cir.1970) aff'd sub nom. Sea Pak v. Indus. Technical & Prof'l Employees, Div. of Nat'l Mar. Union, AFL-CIO, 400 U.S. 985, 91 S.Ct. 452, 27 L.Ed.2d 434 (1971). SeaPak was affirmed summarily by both the Fifth Circuit and the Supreme Court, meaning that it has precedential value, but “considerably less” so than “an opinion on the merits.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 180-81, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979). The precedential effect of such a summary affirmance “can extend no farther than the precise issues presented and necessarily decided by those actions.” Id. at 182, 99 S.Ct. 983.

In SeaPak, a Georgia law provided that authorizations for deductions of union dues from employee paychecks were revocable at the will of the employee. SeaPak, 300 F.Supp. at 1198. The issue was whether the law was preempted by Section 302 of the LMRA, which prohibits employers from remitting payments to unions except for union dues where the employee had signed a written authorization “which shall not be irrevocable for a period of more than one year.” See id.; 29 U.S.C. § 186(c)(4). In finding that the Georgia statute was preempted, the trial judge appeared to rely on both conflict-and field preemption. Id. at 1200 (stating both that the state and' federal statutes “are completely at odds” and that “[t]he area of checkoff of union dues has been federally occupied to such an extent under 301 that no room remains for state regulation in the same field”).

Defendant’s efforts to distinguish SB 1365 from the statute in SeaPak are unconvincing. SB 1365 states that an employee’s authorization for checkoff deductions can be rescinded upon the employer’s “receipt from the employee of written notice of the [employee’s] resignation” from a union or other entity. A.R.S. § 23-361.02(F). Thus, an employee may revoke her payroll deduction authorization at will by resigning from a union and notifying her employer in writing of the resignation, even if she had entered into a contract with the union providing that the authorization would be irrevocable for a year (as expressly permitted by § 302 of the LMRA). The statute at issue in SeaPak, therefore, appears to be indistinguishable from SB 1365.

The Georgia statute contained a section that SB 1365 does not contain, namely, a provision rendering any payroll deduction agreement unlawful unless revocable at the will of the employee. SeaPak, 300 F.Supp. at 1199. This does not, however, appear to be a central component of the District Court’s finding of preemption. Rather, the judge in SeaPak found that the Georgia law permitting revocation at will was “completely at odds” with the federal law permitting unions “to bargain for and receive a checkoff of dues under authorizations which may be irrevocable for as long as one year.” .Id. at 1200. He further examined the legislative history of Section 302 to discern Congress’s “deep concern about checkoffs and the period during which they may be irrevocable,” thus leading to his holding that field preemption permeates “[t]he area of checkoff of union dues.” Id.

Defendant contends that the holding of SeaPak has been eroded by subsequent developments in case law holding that “[preemption based on § 301 of the LMRA ‘preempts state law only insofar.as resolution of the state-law-claim [sic] requires the interpretation of a collective-bargaining agreement.’ ” (Doc. 166 at 7) (quoting Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 409 n. 8, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988)). However, the holding in SeaPak is focused entirely on the preemptive effect of § 302, not § 301, and none of the cases cited by Defendant suggest that this interpretation of the LMRA’s preemptive effect carries over from § 301 to § 302. Section 301 has been interpreted by the Supreme Court to “authoriz[e] federal courts to fashion a body of federal law for the enforcement of ... collective bargaining agreements.” Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). The limitation of preemptive effect to the interpretation of collective bargaining agreements therefore makes sense in the context of §.301; it does not make sense in the context of § 302, which does not touch on the enforcement of collective bargaining agreements. .

The Georgia statute in SeaPak is not meaningfully distinguishable from SB 1365. Thus, SeaPak’s holding, though limited in precedential effect, encompasses the statute currently before the Court. To the extent -that SB 1365 provides that an employee can immediately revoke his payment of union dues upon submission of written notice to his employer, it is displaced by § 302 of the LMRA through both conflict and field preemption. Plaintiffs’ Motion for Summary Judgment as to SB 1365 is granted on this ground. Conversely, Defendant’s Cross-Motion for Summary Judgment contending that SB 1365 is not preempted is denied.

However, the scope of preemption is determined by the language of the preempting statute. Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir.2007). The LMRA expressly does not apply to public sector unions. Pac. Mar. Ass’n v. Local 63 Int’l Longshoremen’s & Warehousemen’s Union, 198 F.3d 1078, 1081 (9th Cir.1999); 29 U.S.C. §§ 152(2), (5) (excepting state and political subdivisions from the definition of “employer,”-and defining labor organizations as entities that exist for the purpose “of dealing with employers”). Thus, § 302 preempts SB 1365 only in its application to private sector employees and unions. In addition, the LMRA says nothing about a state’s ability to place restrictions and penalties on the way unions use the funds from payroll deductions. As such, the Court turns to the PlaintiffIntervenors’ arguments in determining whether the non-preempted portions of SB 1365 withstand constitutional scrutiny.

B. Viewpoint Discrimination

Viewpoint discrimination occurs “when the government prohibits ‘speech by particular speakers,’ thereby suppressing a particular view about a subject.” Moss v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir.2009) (quoting Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir.2001)). It is “an egregious form of content discrimination.” Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 800 (9th Cir.2011) (quoting Truth v. Kent Sch. Dist., 542 F.3d 634, 649-50 (9th Cir.2008)). Under the First Amendment, “government regulation may not favor one speaker over another.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). When the government targets “particular views taken by speakers on a subject” rather than generally targeting subject matter, “the violation of the First Amendment is all the more blatant.” Id. at 829, 115 S.Ct. 2510. Even if the government is facilitating rather than burdening speech, it may not discriminate based on the viewpoint of the persons whose speech it facilitates; Id. at 834, 115 S.Ct. 2510. A law that facially discriminates on the basis of content is subject to strict scrutiny; it must be narrowly tailored to achieve a compelling purpose in order to survive. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).

SB 1365 places restrictions only on entities who wish to use payroll deductions for political purposes. A.R.S. § 23-361.02(B). It requires entities who wish to collect funds via payroll deductions and may use the funds in part for political purposes to declare in advance the percentage of those funds to be used for political purposes. Id. The entities must adhere to that advanced percentage declaration or face a heavy fine. Id. This Court need not determine whether such a burden in and of itself would constitute viewpoint discrimination if it was uniformly applied, because by virtue of statutory definitions and exclusions, the statute excuses virtually all organizations from this potential fine except private and some public employee unions. For example, payroll deductions for “public safety employees” are exempted from the statute, as are those entities who receive payroll deductions to fund segregated political purpose committees, provide for employee savings or benefits, deduct taxes, or collect for charitable purposes'. Id. § 23-361.02(E), (H). Any other deduction, including union dues, is not exempted. Id. SB 1365 thus does not impose equal burdens on all political speakers who wish to use paycheck deductions for political purposes. The requirement that á union estimate in advance how much it will expend on political purposes subject to a fine for miscalculation is clearly an obstacle to speech. That obstacle, however, is not imposed on political action committees, charities, banks, health insurance companies, and others who may employ some amount received through payroll deductions for political speech.

It is true, as Defendant points out, that charities are limited in the political activities in which they may partake. (Doc. 166 at 5.) Charities may nevertheless spend monies on political purposes as defined under SB 1365. Charities organized under 26 U.S.C. § 501(c)(3) are prohibited from “carrying on propaganda ... attempting to influence legislation ... [and] participating] in, or intervenefing] in ... any political campaign on behalf of (or in opposition to) any candidate for public office.” However, the definition of “political purpose” in SB 1365 is much greater in scope than the political limitations placed on 501(c)(3) charities. As defined in SB 1365, political purposes include supporting or opposing any political party, referendum, or initiative, or participation in any political issue advocacy. A.R.S. 23-361.02(1). Thus, charities may indeed spend their general funds on activities which are defined by SB 1365 as political, free of any spending restrictions which are otherwise imposed on the non-exempt unions. This is presumably also true of political action committees, banks, insurance companies, and other institutions funded in part by payroll deduction, which may use a part of such proceeds for “political purposes” as defined by the statute.

Defendant argues that the disparity between the treatment of unions and other entities that collect funds via payroll deductions is justified because the two groups are not similarly situated. Persons are “similarly situated” if they are “similarly situated in all material aspects.” Estate of Morris ex rel. Morris v. Dapolito, 297 F.Supp.2d 680, 686 (S.D.N.Y.2004). However, “[e]xact correlation is neither likely nor necessary ... apples should be compared to apples.” Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir.1989). Unions, charities, banks, health insurance companies, political action committees, and other businesses that collect revenue from payroll deductions are all capable of spending some of that revenue on political purposes as that term is defined under SB 1365. Thus, these entities are “similarly situated.” While the other businesses and charities are not subject to the advance political spending restrictions set forth in the statute, non-exempt unions, and presumably life insurance companies, are. Plaintiff-Intervenors have thus met their burden of showing that no material issue of fact exists as to SB 1365’s facial discrimination: it places the restrictions of reporting and adhering to a projected percentage of political spending only on certain speakers.

Defendant finally argues that SB 1365 is not a restriction on speech but rather a law that fails to assist speech. Citing Ysursa, he asserts that a law that merely fails to assist speech, as opposed to a law that affirmatively burdens speech, is subject only to rational basis review. In Ysursa, the statute, being challenged banned all deductions from the paychecks of public employees for political purposes. 555 U.S. at 355, 129 S.Ct. 1093. The statute still permitted the public employee to “elect to have a portion of his wages deducted ... and remitted to his union to pay union dues.” Id. The Supreme Court upheld that statute, applying rational basis review and reasoning that the state was “under no obligation to aid the unions in their political activities. And the State’s decision not to do so is not an abridgment of the unions’ speech; -they are free to engage in such speech as they see fit.”' Id. at 359,129 S.Ct. 1093. The Court expressly noted that the statute “does not suppress political speech but simply declines to promote it” and emphasized the statute’s evenhandedness: it “applies to all organizations, to any deduction regarding political issues, applies regardless of viewpoint or message, applies to all employers, and it does not single out any- candidates or issues.” Id. at 361, 361 n. 3, 129 S.Ct. 1093.

In Wisconsin Education Association Council v. Walker, 705 F.3d 640 (7th Cir.2013), the Seventh Circuit extended this reasoning to decide that a state could make available payroll deductions as a funding source to a union for state public safety employees while denying its use to a union for state “general employees,” which the state had stripped of most collective bargaining rights. In doing so, the Walker court cited Ysursa for the proposition that “[states are] under no obligation to aid the unions in their political activities.” Id. at 645. After establishing that premise, the Walker court cited cases upholding legislative grants in competitive settings to entities such as the National Endowment for the Arts. Id. at 646-47. The court noted that while such entities did engage in speech, legislatures “may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech at stake” and that “such funding is not discrimination on the basis of viewpoint but merely funding one activity to the exclusion of the other.” Id. at 647 (quoting Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587-88, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998)) (internal quotations and ellipses omitted). Finding that no direct regulation of speech was at stake in permitting one union to be funded by payroll deductions while denying that privilege to another, the Walker court upheld the Wisconsin legislation. Id. at 645.

Even assuming the persuasiveness of such reasoning, the facts of this case and Walker have a crucial difference. In this case, unlike Walker, the state has placed an advanced spending restriction on political speech from unions -but not on other speakers who may fund their political activities in whole or in part by payroll deduction. Unlike Ysursa, or for that matter Walker, in SB 1365 the state has placed an “obstacle” on union speech that consists of more than just the cost that any party incurs when it speaks. Even the Walker Court explicitly repudiates such state-created obstacles, noting that “the state may not erect ‘obstacles in the path of [the unions’] exercise of ... freedom of speech.” Id. at 646 (citing Regan v. Taxation With Representation of Wash., 461 U.S. 540, 549-50, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983)).

Furthermore, the Walker court recognized that the First Amendment proscribes subsidies that discriminate on the basis of viewpoint. Id. at 648. As discussed above, SB 1365 singles out a specific group to be subject to harsh penalties if it chooses to take advantage ' of payroll deductions. The severity of the' penalty amounts to a limitation on speech by particular speakers to which other speakers are not subject, thereby imposing costs on a particular view on a subject — in this case, the view of unions and life insurance companies on any political issue. This is the essence of viewpoint discrimination. Moss, 572 F.3d at 970.

Defendant characterizes SB 1365 as a law that “regulates the payment of wages and, specifically, payroll deductions” and not “a restriction on spending money.” (Doc. 184 at 2.) Such a characterization completely ignores the objectionable part of the statute — the part that Requires unions, and any other identifiable non-exempt speakers, to estimate in advance how much it will spend on political speech and subjects it to a mandatory fine if it exceeds this amount. The power to enact an evenhanded ban does not include the power to enact uneven-handed restrictions. See R.A.V., 505 U.S. at 384, 112 S.Ct. 2538. Defendant may not use the fact that SB 1365 allows payroll deductions to hide the fact that the statute discriminatorily imposes its burdens. Thus, Defendant has failed to raise any material issue of fact that SB 1365 is not facially viewpoint discriminatory. He must demonstrate that SB 1365 is narrowly tailored to further a compelling justification for the statute to withstand constitutional scrutiny.

Defendant asserts that SB 1365 serves the compelling purpose of protecting employees’ First Amendment rights. (Doc. 166 at 5.) He states that SB 1365 “ensures that wages are deducted from an employee’s paycheck only with the employee’s knowing authorization.” (Doc. 166 at 5.) However, as noted by Plaintiff-Intervenors, Arizona is a right-to-work state, and employees’ choices to pay union dues are already voluntary. Ariz. Const, art. 25; Am. Fed’n of State, Cnty. & Mun. Emp., AFL-CIO, Local 2384 v. City of Phoenix, 213 Ariz. 358, 366, 142 P.3d 234, 242 (Ct.App.2006) (holding that Arizona’s right-to-work laws “ensure the freedom of workers to choose whether to join and participate in a union”). Because Arizona employees’ First Amendment rights are already protected in the constitution, Defendant’s asserted purpose is duplicative and thus not compelling enough to justify its viewpoint discrimination.

Defendant further argues that SB 1365 “enables employees to get information regarding the extent to which their pay is being used for political purposes to make an informed and voluntary choice about it.” (Doc. 166 at 5.) If this is a purpose of SB 1365, it is not tailored to meet that purpose. The statute requires only that this information be submitted to employers, not employees, and nowhere in the statute are employers required to pass that information on to employees. A.R.S. § 23-361.02(B). Further, to the extent that charitable institutions, bankers, health insurance companies, and others might use amounts from payroll deductions for political purposes, Defendant’s logic would also require these expenditures to be made with the employee’s knowing authorization. However, SB 1365 contains no provision to ensure that employees receive this information.

Defendant claims that union workers do not understand that their union dues may fund political purposes. (Doc. 178 at 2.) At most, however, the evidence presented suggests that unions currently do not broadcast the fact that they may spend union dues on political purposes, and that one union has stated publicly that it does not do so (Defendant does not submit any evidence that this union’s statement was false). Such evidence does not suggest that employees who voluntarily pay union dues are unaware or opposed to the possibility of their unions using those dues for political purposes. Further, the state could accomplish its educational purpose by merely requiring the union to inform its dues-paying members on a contemporary and periodic basis what percentage of funds received through payroll deductions it spends on political purposes. Requiring unions to estimate in advance how much they will spend in the next year, and/or requiring them to pay a mandatory fine if they exceed such an amount, only imposes a restriction on union speech to which other entities receiving payroll deductions are not subject. Thus, the additional protection afforded by SB 1365 beyond the existing measures in Arizona’s right-to-work laws is neither compelling nor narrowly tailored to justify the statute’s viewpoint discrimination.

Further, SB 1365 fails to meet the requirement of being narrowly tailored because it is underinclusive. The law exempts “public safety employees” from its requirements without offering any reason why these employees are in less need of protection of their First Amendment rights with respect payroll deductions than other public sector employees. Id. § 23-361.02(H). Defendant offers “several rational bases” for this exclusion, though the standard here is not whether the exclusion is rational but whether it is compelling and narrowly tailored. First, he claims, without citing to any evidence, that “[disagreement over whether to consent to deductions for political purposes could turn officer against officer.” (Doc. 170 at 6.) The Court does not find this to be such a precipitate and pressing public concern that it justifies the exclusion. Second, Defendant states that the exclusion reduces administrative burdens for local governments. In another document, howevér, Defendant characterizes the bill’s requirements as “a simple authorization procedure that could be accomplished by the click of a mouse.” (Dóc. 184 at 5.) Furthermore, Defendant does not explain why, if processing authorizations is burdensome to local governments, the exemption only extends to public safety employees as opposed to all public sector employees. As such, the argument that local governments would be unduly burdened without the public safety employee exemption is unconvincing. The statute on its face, and in its operation, places a discriminatory and unjustified burden on union speech. Defendant offers no evidence that it is narrowly tailored to meet any interest it has that might be considered compelling.

Plaintiff-Intervenors have established that no genuine issue of material fact exists as to SB 1365’s viewpoint discrimination. As such, strict scrutiny is the appropriate standard of review for the statute. Under strict scrutiny, Defendant has not demonstrated that the discrimination on the face of the statute was narrowly tailored to serve a compelling government purpose. As such, Plaintiff-Intervenors’ Motion, for Summary Judgment on the unconstitutionality of SB 1365 is granted, and Defendant’s Cross-Motion for Summary Judgment is denied. Because SB 1365 violates the First Amendment on its face, the Court does not reach the parties’ other arguments regarding its constitutionality.

C. Permanent Injunction

In their Motion for Summary Judgment, Plaintiff-Intervenors request a permanent injunction of the provisions of SB 1365. “[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 2756, 177 L.Ed.2d 461 (2010). It must show: (1) that it has suffered an irreparable injury, (2) that remedies at law are inadequate to compensate for that injury, (3) that the balance of hardships tips in favor of the plaintiff, and (4) that the public interest would not be harmed by the permanent injunction. Id. These are substantially the same factors as the standard for issuing a preliminary injunction.

A court must usually conduct an evidentiary hearing before converting a preliminary injunction into a permanent injunction, but this is not necessary “when the facts are not in dispute.” Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir.1988).

This Court has already granted Plaintiff-Intervenors a preliminary injunction against enforcement of SB 1365. (817 F.Supp.2d 1118) The only difference now is that while the Plaintiff-Intervenors demonstrated a mere likelihood of success at the preliminary injunction stage, they have now demonstrated that no material issue of fact exists as to SB 1365’s unconstitutionality. They satisfied the four factors in this Court’s previous order, and nothing in the record indicates that the circumstances have changed. In addition, there are no facts in dispute on this Motion for Summary Judgment. Accordingly, the Court will convert the preliminary injunction against enforcement of SB 1365 into a permanent injunction.

III. Constitutionality of SB 1363

As mentioned above, SB 1363 consists of a series of amendments to preexisting statutes, as well as new statutes. SB 1363, 50th Leg., 1st Reg. Sess. (Ariz.2011). SB 1363 amended A.R.S. §§ 12-1809, 12-1810, 23-352, and 23-1321 through 23-1324. Id. In addition, SB 1363 created new sections A.R.S. §§ 23-1325 through 23-1329. Id.

The various sections of SB 1363 regulate a wide variety of conduct involving labor relations, including picketing, trespassing, assembly, and boycotting. In addition, they expand the remedies for existing causes of action under Arizona law. The specifics of the various sections will be set out in greater detail below.

A. Justiciability

To invoke the jurisdiction of the federal courts, a plaintiff must demonstrate that it has suffered an injury-in-fact that is “both ‘concrete and particularized.’ ” In addition, this injury must be “fairly ... traceable to the challenged action of the defendant” and redressable— “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 654-55 (9th Cir.2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “[A] plaintiff is presumed to have constitutional standing to seek injunctive relief when it is the direct object of regulatory action challenged as unlawful.” Id. Furthermore, “the Supreme Court has dispensed with rigid standing requirements” in the “First Amendment-protected speech context.” Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1094 (9th Cir.2003).

Here, Plaintiffs are labor unions seeking injunctive relief against SB 1363, a bill that Defendants concede “regulates labor and employment.” (Doc. 165 at 6.) Thus, the Court presumes that Plaintiffs have standing to challenge SB 1363, and the burden is on Defendants to prove otherwise.

Defendants contend that Plaintiffs can show no injury-in-fact because “there is nothing in the record to indicate that they (or anyone else) have been threatened with prosecution under any of the statutes that make up SB 1363.” (Doc. 177 at 2.) However, a plaintiff is not required to show an actual threat of prosecution-by a government official to establish standing. See Cal. Pro-Life, 328 F.3d at 1094 (overturning district court’s holding that a plaintiff had no standing because it had not been threatened with prosecution). Rather, the plaintiff need only have “an actual and well-founded fear that the law will be enforced against [it].” Id. (quoting Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988)). Here, Plaintiffs have presented evidence that they wish to engage in behavior such as picketing and assembling workers and have done so in the past, but fear that doing so now will result in prosecution under the various provisions of SB 1363. (Doc. 160-2 at ¶¶ 7-11, 13-16; Doc. 160-4 at ¶¶ 4-11.) SB 1363 appears on its face to regulate precisely the type of behavior in which Plaintiffs wish to engage. See A.R.S. § 23-1322 (regulating unlawful picketing); id. § 23-1327 (regulating unlawful mass assembly). Plaintiffs’ fear of prosecution is thus reasonable. Their self-censorship resulting from this fear is a constitutionally recognized injury-in-fact. Cal. Pro-Life, 328 F.3d at 1095.

Defendants further contend that any injury is neither traceable to Defendants nor redressable by a favorable decision. They assert that because many of SB 1363’s provisions are enforced through private civil actions, an injunction preventing Defendants from enforcing the law would have no effect. (Doc. 177 at 3.) In making this argument, Defendants overlook Plaintiffs’ requested declaratory relief that SB 1363 be declared unconstitutional. Pursuant to state law, such an action requires that the Arizona Attorney General be served and allowed an opportunity to be heard. A.R.S. § 12-1841(C). In addition, under federal law, a state attorney general is a proper party to actions challenging state criminal statutes where the state attorney general actually enforces the statute or can bring prosecutions. Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919 (9th Cir.2004). Defendant Horne, as the Arizona Attorney General, is authorized to enforce the criminal penalties attached to virtually all of the sections of the act.' A.R.S. § 23-1324(C). Defendants concede that at least some of the provisions are enforced by them, like the provision requiring Defendant Bennett, as Secretary of State, to establish and maintain a no trespass list. A.R.S. § 23-1326(A), (D). A declaration that SB 1363 is unconstitutional would redress even injuries inflicted on Plaintiffs via private parties. Thus, Plaintiffs’ injuries are both traceable to Defendants and redressable by the relief they request. Defendants’ arguments that Plaintiffs lack standing are rejected.

Defendants argue that the “issues are not fit for decision without a more fully developed factual record to provide context.” (Doc. 177 at 4.) However, as stated in this Court’s Order on October 11, 2011, 2011 WL 4801887, “the core issues of Plaintiffs’ and Plaintiff-Intervenors’ complaints are purely legal in nature.” (Doc. 100 at 61) Plaintiffs challenge the constitutionality of SB 1363 for being, among other things, viewpoint-discriminatory, vague, and overbroad on its face. Such a challenge does not require further factual development to crystallize the issue; all that is needed is an analysis of the statute as written. The action is ripe.

Finally, Defendants argue in their Motion for Summary Judgment that part of this action is barred by the Eleventh Amendment. Though the Eleventh Amendment generally bars suits against state officials, there is an exception where a “fairly direct” connection exists between the state official and the challenged law. Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir.1998). Defendants state that the parts of SB 1363 that are enforced by private action lack the requisite connection to overcome the immunity provided by the Eleventh Amendment against state officials. (Doc. 177 at 4-5.) As discussed above, state attorney generals may properly be named as defendants when they have the power to enforce the statutes being challenged. Wasden, 376 F.3d at 919. Defendants claim that they have nothing to do with the parts of SB 1363 which involve, for example, private actions for defamation of an employer. This argument misses the point. A.R.S. § 23-1324 provides that any violation of any provision in the Article 2 relating to Picketing and Secondary Boycotts is a criminal act and subject to a fine to be collected by the Attorney General. Thus, while Defendant Horne has nothing to do with private actions which are also permitted by SB 1363, every substantive section in Article 2 is enforced by him. Similarly, the Attorney General is charged with collecting civil penalties for violations of the wage withholding provision of SB 1363. A.R.S. § 23-361.02. As such, he maintains a direct relationship with every part of SB 1363, and Plaintiffs may properly name him as a party in seeking a declaration that SB 1363 is unconstitutional. To the extent that Defendant Bennett lacks a direct relationship with parts of SB 1363, this Court’s orders regarding those parts will not be directed against him. The Eleventh Amendment does not bar this action.

B. Viewpoint Discrimination — Unconstitutional Motive

Plaintiffs contend that they are entitled to summary judgment because SB 1363 was motivated by an impermissible desire to suppress a particular viewpoint and is thus unconstitutional as a whole. (Doc. 160 at 2-7.) Plaintiffs present evidence that SB 1363’s sponsoring senator stated that the purpose of the bill was “to protect employers” and to ensure that free speech would not “interfere with the standard conduction [sic] of business.” (Doc. 160-1 at ¶¶ l.e, 4.a.) Plaintiffs also point to various sections of SB 1363 that may evidence viewpoint discrimination. (Doc. 160 at 4-7.)

A regulation is content-based, and presumptively unconstitutional, if “the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Plaintiffs have pointed to portions of SB 1363 that appear facially discriminatory. But these individual sections do not compel a ruling that SB 1363 is, as a whole, motivated by an unconstitutional aim to suppress a particular viewpoint. Rather, because SB 1363 is comprised of many discrete sections that are not necessarily related to one another, efficiency and clarity call for the sections to be analyzed separately.

Nor do the sponsoring senator’s statements lead to an inevitable conclusion that SB 1363 was motivated by an unconstitutional purpose. A statute has an unconstitutional purpose if it was enacted “to suppress or exalt speech of a certain content, or it differentiates based on the content of speech on its face.” A.C.L.U. of Nevada v. City of Las Vegas, 466 F.3d 784, 793 (9th Cir.2006). The senator’s statement that SB 1363 was drafted “to protect employers” does not go to the face of the statute; nor does it suggest that the legislature’s purpose was to “suppress or exalt” any particular content. Contrary to Plaintiffs’ assertions, an employer-protective purpose is not necessarily coupled with anti-union sentiment. Nor does the statement indicate that SB 1363 was created to exalt employers’ speech; it appears that the drafters were concerned not with speech but rather the continuation of business. (Doc. 162 at ¶ 8.)

As such, Plaintiffs’ request to declare SB 1363 unconstitutional as a whole is denied. Rather, the Court will analyze the individual sections of SB 1363 separately to determine their constitutionality.

C. Analysis of Individual Sections

SB 1363 contains a total of twelve sections. In general, it expands Article 2 (Picketing and Secondary Boycotts) of Chapter 8 (Labor Relations) of Title 23 (Labor). This Article previously dealt only with what it defined as picketing and secondary boycotts. As it concerned picketing, the previous version of the statute made it “unlawful for a labor organization to picket any establishment unless there exists between the employer and the majority of the employees of such establishment a bona fide dispute regarding wages or working conditions.” A.R.S. § 23-1322(A). In 1957, however, the Arizona Supreme Court declared that statute unconstitutional. Baldwin v. Ariz. Flame Rest., 82 Ariz. 385, 391, 313 P.2d 759, 764 (Ariz.1957). Although it remained codified, the portion of it declared unconstitutional by Baldwin is of no force and effect.

SB 1363 expands this Article’s previous definition of unlawful picketing to include a second definition of that phrase. It also defines and/or adds to the crimes of picketing and “secondary boycott” already enumerated in that Article, the crimes of “concerted interference with lawful exercise of business activity,” “trespassory assembly,” “unlawful mass assembly,” “defamation of an employer,” and “publicizing enjoined picketing or assembly.” SB 1363 further provides that “a person against whom any of these activities is directed or who is injured by these activities” is entitled to both injunctive relief and civil damages. A.R.S. § 23-1323(A).

The statute also provides that the Secretary of State shall establish and maintain a “no trespass public notice list” allowing employers to establish “private property rights to their establishment and any related property” by filing the appropriate documents with the Secretary of State and paying the appropriate fee. SB 1363 imposes more serious penalties for persons who commit the crimes of unlawful trespass, unlawful mass assembly, or trespassory assembly on property that is on the “no trespass public notice list.”

The remaining provisions of the statute amend A.R.S. §§ 12-809 and 12-810, the statutes governing injunctions against harassment in Arizona. The amendments specify that “[h]arassment includes unlawful picketing, trespassory assembly, unlawful mass assembly, concerted interference with lawful exercise of business activity and engaging in a secondary boycott as defined in Section 23-1321 and defamation in violation of Section 23-1325.” Section 12-810, dealing specifically with workplace harassment, was further amended to specify that while injunctions could not issue against organized labor disputes protected by law, the protected disputes did not include the behaviors included in the definition of harassment above “or any actual or threatened misrepresentation, fraud, duress, violence or breach of the peace.” A.R.S. § 12-1810(K)(2).

Finally, SB 1363 amends A.R.S. § 23-352, dealing with the withholding of wages, to forbid an employer from withholding any wages “under a written authorization from the employee past the date specified by the employee in a written revocation of the authorization.” Thus, the amendment allows an employee to revoke a payroll deduction at any time, regardless of a previously agreed-to payroll deduction authorization for a set period of time.

1. Section 23-1322 — Unlawful Picketing

Section 23-1322 defines and prohibits “unlawful picketing.” SB 1363 amended the section to prohibit labor organizations from engaging in picketing or inducing others to engage in picketing “if the purpose of the picketing is to coerce or induce an employer or self-employed person to join or contribute to a labor organization.” A.R.S. § 23-1322(B). In addition, SB 1363 amends A.R.S. § 23-1324(B) to provide that any person who violates § 23-1322 at a property listed on the no-trespass list is guilty of a class 1 misdemeanor.

Picketing “plainly involves expressive conduct within the protection of the First Amendment.” Police Dept. of City of Chi. v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Thus, “discriminations among pickets must be tailored to serve a substantial governmental interest.” Id.; see also Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (striking down statute that prohibited picketing of residences but exempted peaceful labor picketing from its reach). However, governments may constitutionally prohibit picketing “when it is directed toward an illegal purpose.” Carey, 447 U.S. at 470, 100 S.Ct. 2286. For example, Arizona’s public policy is that no person can be denied employment because of non-membership in a union; thus, picketing to force an employer to replace non-union employees with union members can presumably be enjoined consistent with the Constitution. Baldwin, 313 P.2d at 767.

Section 23-1322(A) prohibits picketing unless a “bona fide dispute” exists. It thus operates as a general prohibition on peaceful picketing, regardless of whether that picketing is directed toward an unlawful purpose. The Arizona Supreme Court ruled that this statute was unconstitutional in 1957. Id. at 764. As such, any portion of SB 1363 that purports to enforce § 23-1322(A), to the extent it has previously been declared unconstitutional, remains unconstitutional. This Court need not issue a ruling on a law already declared unconstitutional by the state court.

To the extent that Defendants argue that Plaintiffs lack standing because § 1322(A) has been on the books for fifty years with no apparent problem, that argument lacks merit. The statute was declared unconstitutional shortly after its passage but was not removed from the books. Now, the state has passed a new statute supplying yet an additional definition of “picketing.” The fact that no disputes have resulted from a previous definition that has been declared unconstitutional for more than fifty years does not deprive Plaintiffs of standing in light of the amendment.

Plaintiffs assert that A.R.S. § 23-1322 is preempted by the NLRA. (Doc. 160 at 23.) Under the theory of Garmon preemption, states and local authorities are prohibited from regulating activities that are “protected by § 7 of the NLRA, or constitute an unfair labor practice under § 8.” Bldg. & Const. Trades Council of Metro. Dist. v. Assoc. Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993). However, regard for the federal system requires courts “not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the [LMRA]” or where the conduct touches on interests “deeply rooted in local feeling and responsibility.” San Diego Bldg. Trades Council, Milkmen’s Union, Local 2020 v. Garmon, 359 U.S. 236, 243-44, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Thus, states may regulate “mass picketing, obstructive picketing, or picketing that threatens or results in violence.” Sears, Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180, 220, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978). However, the Supreme Court warned against finding exceptions to Garmon preemption beyond those listed above and “comparable circumstances.” Sears, Roebuck, 436 U.S. at 221, 98 S.Ct. 1745.

A.R.S. § 23-1322(B) prohibits labor organizations from picketing or inducing picketing for the purpose of coercing or inducing “an employer or self-employed person to join or contribute to a labor organization.” Section 8 of the NLRA prohibits labor organizations from using threats, coercion, or restraint for the purpose of “forcing or requiring any employer or self-employed person to join any labor or employer organization.” Id. § 158(b)(4)(A). The language of § 23-1322(B) is substantially similar to the prohibition set out in NLRA Section 8. Thus, to the extent § 23-1322(B) purports to ban “forcing or requiring any employer or self-employed person to join any labor or employer organization,” it is preempted by the NLRA.

The remaining portion of § 23-1322(B) prohibits labor organizations from picketing or inducing picketing for the purpose of inducing an employer or self-employed person to join or contribute to a labor organization. Nevertheless, Section 7 of the NLRA protects the right of employees to “engage in other concerted activities for the purpose of collective bargaining.” 29 U.S.C. § 157. The kind of picketing prohibited for the purpose of inducing an employer or self-employed person to join or contribute to a labor organization is “concerted activity for the purpose of collective bargaining” that is protected by Section 7 of the NLRA. See Bldg. & Const. Trades Council, 507 U.S. at 225, 113 S.Ct. 1190 (holding that Garmon preemption extends to activities only arguably protected or prohibited by the NLRA). Thus, unless an exception applies which Defendant has not identified, § 23-1322(B) is preempted by federal law. Defendant does not, in fact, argue that one of the Garmon exceptions applies. Instead, he contends that “the extent to which unlawful picketing may overlap with picketing protected or prohibited by the NLRA cannot be determined in the absence of an actual controversy.” (Doc. 177 at 21.) However, as discussed above, there is no part of § 23-1322(B) that would not be preempted by either Section 7 or 8 of the NLRA. Because Defendant has- failed to show the applicability of any exception to Garmon preemption, § 23-1322(B) is preempted by the NLRA.

Nevertheless, the NLRA does not apply when the employer is a state or any political subdivision thereof. 29 U.S.C. § 152(2). Nor does it apply to agricultural laborers, domestic servants, employees of immediate family members, independent contractors, supervisors, or railroad laborers. Id. § 152(3). Thus, § 23-1322(B) is not preempted as to these specific employers and employees. As such, the Court will analyze the constitutionality of the non-preempted portion of the subsection.

Both definitions of picketing in A.R.S. § 23-1322 single out picketing by “labor organizations.” Because § 23-1322(B) singles out labor unions as the only speakers on which to impose its restrictions, it is viewpoint discriminatory on its face. It is also simultaneously underinclusive and overinclusive.

Under § 23-1322(B), an individual who picketed a business for the purpose of “coerc[ing] or induc[ing] an employer or self-employed person to join or contribute to a labor organization,” based on her own political ideology, would not be subject to prosecution, while a labor union doing the same would be subject to criminal penalties. See A.R.S. § 23-1324(B). A.R.S. § 23-1322(B) therefore “discrimat[es] among pickets,” and Defendants must show that the discrimination is “tailored to serve a substantial government interest.” Mosley, 408 U.S. at 99, 92 S.Ct. 2286. Defendants contend that the government interest implicated here is Arizona’s public policy that employees cannot be required to join a union. (Doc. 177 at 11.) As stated above, governments may validly prohibit picketing, even peaceful picketing, if the picketing aims to accomplish a purpose that contradicts stated public policy. Int’l Broth. of Teamsters, Local 695, A.F.L. v. Vogt, Inc., 354 U.S. 284, 294, 77 S.Ct. 1166, 1 L.Ed.2d 1347 (1957). Nevertheless, even assuming that the category of speech may be constitutionally prohibited in Arizona, the statute prohibits only labor unions from engaging in impermissible-purpose picketing, allowing all other persons or entities to do what labor unions cannot. See Fla. Star v. B.J.F., 491 U.S. 524, 540, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (holding that a statute’s “facial underinclusiveness ... raises serious doubts” about whether a state was actually serving the interests it invoked to validate the statute).

Additionally, A.R.S. § 23-1322(B) is overinclusive because it is not narrowly tailored to serve Arizona’s public policy of preventing employees to be forced to join unions because it prohibits speech that is not directed toward an illegal purpose. Section 23-1322(B) does not only prohibit picketing for the impermissible purpose of coercing employees to join a union; it also prohibits picketing for the apparently permissible purpose of inducing employees or employers to contribute to a labor union. Defendants have stated no public policy of Arizona that would be harmed by picketing for the purpose of soliciting contributions from employers or employees. As such, Defendants have failed to demonstrate that § 23-1322(B) is narrowly tailored.

Defendants’ stated government interest does not justify SB 1363’s “impermissible distinction between labor picketing and other peaceful picketing.” Mosley, 408 U.S. at 94, 92 S.Ct. 2286. Plaintiffs’ Motion for Summary Judgment on the unconstitutionality of A.R.S. § 23-1322(B) is therefore granted. Similarly, the provision of A.R.S. § 23-1324 providing a criminal penalty for violation of § 23-1322(B) is unconstitutional, and Plaintiffs’ Motion for Summary Judgment as to that section of SB 1363 is granted. Defendants’ Cross-Motion for Summary Judgment that A.R.S. § 23-1322 and concomitant sections of § 23-1324 do not violate the First Amendment is denied.

However, courts must “refrain from invalidating more of the statute than is necessary.” United States v. Booker, 543 U.S. 220, 258, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Portions of the statute that are constitutionally valid, capable of functioning independently, and consistent with the legislature’s basic objectives must be retained. Id. at 258-59, 125 S.Ct. 738. Three basic principles inform the decision of how much of a statute should be invalidated: not nullifying more of a legislature’s work than is necessary, refraining from rewriting state law, and maintaining legislative intent. Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329-30, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006). Though the question of whether an unconstitutional provision is severable is “largely a question of legislative intent, ... the presumption is in favor of severability.” Regan v. Time, Inc., 468 U.S. 641, 653, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984).

Here, A.R.S. § 23-1322(B) is unconstitutional because it criminalizes behavior by labor unions which, when undertaken by others, would not be criminal. Such a statute discriminates among viewpoints. The statute is also unconstitutional because it prohibits speech that is not directed toward an illegal purpose (speech “inducing” employees or employers to contribute toward a labor union). If these statutory specifications were stricken, the remainder of the statute would and could function independently and would pose no facial constitutional problem: it would prohibit picketing by all speakers directed only toward the illegal purpose of coercing employees to join unions. This would avoid both the viewpoint discrimination problem and the overbreadth problem.

Nevertheless, such a severance would criminalize speech by a much broader range of speakers than actually designated by the legislature, and thus restrict a larger amount of speech, than does the statute in its present form. Further, to the extent it was the Legislature’s intent to criminalize particular speech by labor unions only, which it appears to the Court it was, the severance would not maintain the Legislature’s intent. Our constitutional scheme “generally favors more speech” rather than more restrictions on speech. Rappa