Rest. Law Ctr. v. City of N.Y. (360 F. Supp. 3d 192, 2019)

Paul G. Gardephe, United States District Judge

This case is brought by the National Restaurant Association - a foodservice trade association - and its legal arm, the Restaurant Law Center. Plaintiffs claim that a recently enacted New York City law and regulation requiring fast food employers in the City to create and administer a payroll deduction scheme - under which employees can donate a portion of their wages to certain non-profit organizations registered with the City - are unconstitutional and preempted by Federal law. The parties have cross-moved for summary judgment.

For the reasons set forth below, Plaintiffs' motion for summary judgment will be denied, and Defendants' motion for summary judgment will be granted.

BACKGROUND

I. FACTUAL BACKGROUND

A. Parties

Plaintiff National Restaurant Association (the "Association") is the "largest foodservice trade association in the world[ ] - supporting over 500,000 restaurant businesses." (Sturniolo Decl., Ex. 14 (Dkt No. 50-14) at 2) Plaintiff Restaurant Law Center (the "Law Center") was launched in January 2017 to "enhance the restaurant industry's legal advocacy capabilities to provide protection and advancement for the industry, including fighting overregulation at the federal, state and local level." (Id. Ex. 15 (Dkt. No. 50-15) at 2) The Center is a 501(c)(6) entity "affiliated with, but separate from, the [Association]." (Id. )

Defendants are the City of New York (the "City") and Lorelei Salas, in her official capacity as the Commissioner of the New York City Department of Consumer Affairs ("Consumer Affairs"). (Cmplt. (Dkt. No. 1) ¶¶ 9, 10)

Intervenors Kshawn Clark, Christian Malloy, Mica McLawhorn, and Jordan Rodriguez are members of Fast Food Justice who work at fast food restaurants. (Clark Decl. (Dkt. No. 29-1) ¶¶ 2, 3; Malloy Decl. (Dkt. No. 29-2) ¶¶ 2, 3; McLawhorn Decl. (Dkt. No. 29-3) ¶¶ 2, 3; Rodriguez Decl. (Dkt. No. 29-4) ¶¶ 2, 3)

B. The Deductions Law

On May 24, 2017, the New York City Council enacted the "Deductions Law," New York City Administrative Code § 20-1301, etseq. (Def. R. 56.1 Counterstmt. (Dkt. No. 59) ¶ 1) The new law - which became effective on November 26, 2017 - requires certain fast food establishments in New York City to create and maintain a payroll deduction system by which employees can donate a portion of their wages to certain non-profit organizations registered with the New York City Department of Consumer Affairs. (Id. ¶¶ 2-3; N.Y.C. Admin Code § 20-1302 )

The Deductions Law defines a "fast food establishment" as, inter alia, a business that "has as its primary purpose serving food or drink items," and is part of a chain that has thirty or more locations nationwide. (Def. R. 56.1 Counterstmt. (Dkt. No. 59) ¶ 23; N.Y.C. Admin. Code § 20-1301 ) A "fast food employee" is someone who works at a fast food establishment in the City, and whose "job duties include at least one of the following: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning or routine maintenance." (Def. R. 56.1 Counterstmt. (Dkt. No. 59) ¶ 25; N.Y.C. Admin. Code § 20-1301 )

Under the Deductions Law, "a fast food employer shall, upon authorization from a fast food employee ... deduct voluntary contributions from such fast food employee's paycheck and remit them to the not-for-profit designated by such fast food employee." N.Y.C. Admin. Code § 20-1302(a). "[N]o later than the first pay period after 15 days of receipt of the authorization," fast food employers must begin deductions from an employee's wages and "remit the deductions to the not-for-profit [designated by the employee], by the method of transmission that such organization requests." Id. § 20-1302(e). The Deductions Law also prohibits retaliation against fast food employees who exercise their rights under the Deductions Law. Id. § 20-1306.

To be eligible to receive employee remittances under the Deductions Law, a nonprofit organization must register with Consumer Affairs. (Def. R. 56.1 Counterstmt. (Dkt. No. 59) ¶ 29; N.Y.C. Admin. Code § 20-1303(a) ) The non-profit organization must provide, inter alia, its name, a physical address, an email address, a web address (if any), a telephone number, and a "contact." (Def. R. 56.1 Counterstmt. (Dkt. No. 59) ¶ 30; N.Y.C. Admin. Code § 20-1303(a)(1) ) The non-profit entity must also collect at least 500 authorizations from fast food employees to who wish to donate a part of their wages to the organization. (Def. R. 56.1 Counterstmt. (Dkt. No. 59) ¶ 32; N.Y.C. Admin. Code § 20-1303(a)(3) )

Labor organizations are not eligible to receive donations pursuant to the Deductions Law. (Def. R. 56.1 Counterstmt. (Dkt. No. 59) ¶ 36; N.Y.C. Admin. Code § 20-1310(b) ) Under the Deductions Law, a "labor organization" is, inter alia,

[a] "labor organization" within the meaning of [ 29 U.S.C. § 152(5) ], which defines a labor organization as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work," as such definition is interpreted by the [N]ational [L]abor [R]elations [B]oard.

N.Y.C. Admin. Code § 20-1310(b)(3) (quoting 29 U.S.C. § 152(5) ). The Deductions Law directs Consumer Affairs to "promulgate rules necessary to ensure that this law will be applied in a manner consistent with federal or state labor law." Id. § 20-1310(c).

The Deductions Law authorizes fast food employers to obtain reimbursement for certain costs associated with administering the payroll deduction scheme. Reimbursement is to be provided by the non-profit organization receiving the wage donations: "Upon request by a fast food employer, [a] not-for-profit shall reimburse the fast food employer for the costs associated with deduction and remittance, as calculated pursuant to the rules of [Consumer Affairs]." Id. § 20-1302(g). Pursuant to rules published on November 28, 2017 (see Def. R. 56.1 Counterstmt. (Dkt. No. 59) ¶ 6; see also Implementation of Pay Deductions Law, NYC CITYWIDE ADMIN. SERVS. , https://a856-cityrecord.nyc.gov/RequestDetail/20171127102 (last visited Jan. 30, 2019) ), "the maximum amount per transaction per fast food employee that a fast food employer may charge a not-for-profit is $0.30. 'Transaction' ... means the act of both deducting and remitting wages." Rules of City of N.Y. Dept. of Consumer Affairs § 7-707(a). However, fast food employers may seek an exemption from this $0.30 cap "by demonstrating to [Consumer Affairs] that the employer's actual costs exceed that maximum amount." Id. § 7-707(b). A request for reimbursement must be made in writing, must set forth how the cost was calculated, and must be based on the "actual costs ... of making deductions from a fast food employee's paycheck and remitting those deductions to the not-for-profit the fast food employee designated." Id. § 7-707(c), (d).

Non-profit organizations and fast food employees or their representatives may file a complaint with Consumer Affairs for fast food employers' violations of the Deductions Law. (Def. R. 56.1 Counterstmt. (Dkt. No. 59) ¶ 48; N.Y.C. Admin. Code § 20-1307(b)(1) ) Where a fast food employer violates the Deductions Law, Consumer Affairs may award deductions and remittances plus interest, and impose a civil penalty of $500 to $1000 per violation. N.Y.C. Admin. Code § 20-1307(b)(2)(b). Reinstatement and back pay are available remedies where an employer has retaliated against an employee seeking to exercise rights under the Deductions Law. Id. § 1307(b)(2)(a)-(c).

II. PROCEDURAL HISTORY

The Complaint was filed on November 21, 2017. (Dkt. No. 1) On January 4, 2018, Kshawn Clark, Christian Malloy, Mica McLawhorn, and Jordan Rodriguez moved to intervene. (Dkt. No. 27) The Court granted their motion on January 17, 2018. (Dkt. No. 33)

Pending before the Court are the parties' cross-motions for summary judgment. (Dkt. Nos. 47, 57)

DISCUSSION

I. SUMMARY JUDGMENT STANDARD

Summary judgment is warranted where the moving party shows that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (citing Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007) ).

" '[W]here the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim.' " Lesavoy v. Lane, 2 Civ. 10162, 2008 WL 2704393, at *7 (S.D.N.Y. July 10, 2008) (quoting Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991) ).

In deciding a summary judgment motion, the Court " 'resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.' " Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) ). However, a " 'party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.... [M]ere conclusory allegations or denials ... cannot by themselves create a genuine issue of material fact where none would otherwise exist.' " Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) ) (alterations in original).

"The same standard[s] appl[y] where, as here, the parties file[ ] cross-motions for summary judgment...." Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001). "[W]hen both parties move for summary judgment, asserting the absence of any genuine issues of material fact, a court need not enter judgment for either party. Rather, each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Id. (internal citations omitted).

II. WHETHER PLAINTIFFS HAVE STANDING

A. Legal Standard

The Court must first determine whether Plaintiffs have standing to bring this case. Plaintiffs bring their First Amendment challenge under 42 U.S.C. § 1983. (Cmplt. (Dkt. No. 1) ¶¶ 53-66) "This Circuit has restricted organizational standing under § 1983 by interpreting the rights it secures to be personal to those purportedly injured." League of Women Voters of Nassau Cty. v. Nassau Cty. Bd. of Supervisors, 737 F.2d 155, 160 (2d Cir. 1984) ; see also Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011) ("It is the law of this Circuit that an organization does not have standing to assert the rights of its members in a case brought under 42 U.S.C. § 1983.") Accordingly, Plaintiffs must demonstrate standing in their own right, and not on a theory that they are acting on behalf of their members.

It is well established that " '[a] plaintiff must demonstrate standing for each claim and form of relief sought.' " Carver v. City of New York, 621 F.3d 221, 225 (2d Cir. 2010) (quoting Baur v. Veneman, 352 F.3d 625, 642 n.15 (2d Cir. 2003) ). "Because standing is jurisdictional under Article III of the United States Constitution, it is a threshold issue in all cases[,] since putative plaintiffs lacking standing are not entitled to have their claims litigated in federal court." Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 117 (2d Cir. 1991) (internal citation omitted).

[T]he "irreducible constitutional minimum" of standing consists of three elements. Lujan [v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ]. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id., at 560-561, 112 S.Ct. 2130 ; Friends of the Earth, Inc. [v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ]. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).

Spokeo, Inc. v. Robins, --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). The "elements are conjunctive, so that a failure of any of the three elements deprives a plaintiff of standing to maintain an action in federal court." Dickerson v. Feldman, 426 F.Supp.2d 130, 134 (S.D.N.Y. 2006).

"To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.' " Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ). "An allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a " 'substantial risk" that the harm will occur.' " Susan B. Anthony List v. Driehaus, 573 U.S. 149, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 414 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ). "For an injury to be 'particularized,' it 'must affect the plaintiff in a personal and individual way.' " Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130 ). " 'As a general rule,' this means 'plaintiff must have personally suffered.' " In re the Bear Stearns Cos., Inc. Sec., 8 MDL 1963 (RWS), 2016 WL 4098385, at *17 (S.D.N.Y. July 25, 2016) (quoting W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 107 (2d Cir. 2008) ). "Concreteness" refers to an injury that is "real, and not abstract." Spokeo, 136 S.Ct. at 1548 (internal quotation marks omitted).

An injury " 'fairly can be traced to the challenged action of the defendant' " where "the exercise of the Court's remedial powers would redress the claimed injuries." Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 74, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41, 43, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ).

"The party asserting jurisdiction ... bears the burden of proof as to standing. To defend against summary judgment for lack of standing, a plaintiff 'must set forth by affidavit or other evidence specific facts' supporting standing, as is generally required under Rule 56." Nat. Res. Def. Council v. FDA, 710 F.3d 71, 79 (2d Cir. 2013) (citing and quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ).

B. Analysis

According to Defendants, "it is questionable whether Plaintiffs have standing to bring their First Amendment claim," because organizations do not have the right to assert the rights of their members under Section 1983. (Def. Opp. (Dkt. No. 62) at 13 n.2) To the extent Plaintiffs devote resources to advising their members about the Deductions Law, that is not an injury-in-fact, because providing such advice is a core part of Plaintiffs' mission. (Id. )

Plaintiffs argue that they have standing in their own right (See Pltf. Reply (Dkt. No. 51) at 8 n.1), however, relying primarily on Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104 (2d Cir. 2017). In that case, the Second Circuit considered whether Workplace - an organization that "work[s] to advance the interests of day laborers," id. at 107 - had standing to challenge a law that prohibited stopping a motor vehicle on a public right-of-way for purposes of soliciting employment from the vehicle's occupants. Id. at 109. The Second Circuit held that Workplace had standing, finding multiple injuries-in-fact. Id. First, Workplace faced "increased difficulty in meeting with and organizing [day laborers]," as one purpose of the law was to disperse day laborers. Id. at 110. Second, the organization had "offered unrebutted testimony that it has already had to devote attention, time, and personnel to prepare its response" to the law. Id. at 110-11. Third, Workplace had "offered evidence that those responsible for enforcing the [law] are likely to confuse the conduct of [the organization's] activists with that of the day laborers." Id. at 111.

Here, the Association has offered evidence that it has diverted resources from its mission as a result of the Deductions Law. In his declaration, Keith Stephenson - the "Director of State and Local Government Affairs at the National Restaurant Association" - states that

[t]he [Association's] purpose is to support our million-plus members in starting, developing, and growing their businesses as well as serving the public. We do so through numerous channels, including through direct outreach efforts on behalf of our members, by hosting educational and informational meetings and seminars, by lobbying state and local governments for restaurant-friendly policies, and by helping our members navigate their legal and regulatory obligations.

(Stephenson Decl. (Dkt. No. 55) ¶ 4)

Stephenson further states that

over the last year - both before and after its enactment - one set of legislative initiatives has consumed the vast majority of my (and my subordinates') time: the New York City 'Fair Workplace' legislative package, which included a number of measures targeting fastfood employers specifically. This legislative package includes the [Deductions Law.]

(Id. ¶ 7) According to Stephenson,

[b]oth before and after its enactment, I have spent time addressing member concerns specifically related to the [Deduction Law's] obligations instead of discussing questions regarding other jurisdictions or other member business or regulatory concerns. For example, on a State and Local Government Affairs [Association] conference call on November 29, 2017, I addressed numerous questions related to the [Deductions Law] in lieu of speaking on several other planned topics.

Similarly, on December 7, 2017, we hosted a meeting for our members regarding their concerns about their businesses and the regulatory environment. While we had planned to discuss a variety of topics, the New York City Fair Workweek laws, including the [Deductions Law], came up multiple times. We were required to truncate our coverage on other topics in order to address the [Deductions Law's] effects.

(Id. ¶¶ 8-9)

Stephenson further asserts that as

[a] direct consequence of our having to devote time, money, and other resources to combating the effects of the [Deductions Law,] ... we have been unable to advocate as effectively as planned for policies in other jurisdictions that we and our members believe would help their businesses. I have been unable to attend meetings and provide strategic advice to members regarding our opposition to a 7% sales tax on restaurant meals proposed in Connecticut; our opposition to additional restaurant regulation in Vermont; our opposition to a California bill that would ban plastic straws; and other lobbying efforts throughout the country. Instead, I have had to devote myself to addressing questions and problems raised by the [Deductions Law] and its obligations on our members.

(Id. ¶ 12) Stephenson states that

[w]ithout these obligations, I would be devoting my time and resources to supporting our members' efforts to grow their businesses as well as to lobbying local lawmakers in other jurisdictions to adopt restaurant-friendly policies. The [Deductions Law] has significantly hindered my ability to advance these goals, both before and after its passage ....

(Id. ¶ 14)

This evidence is sufficient for the Association to carry its burden to demonstrate standing. Here, as in Centro de la Comunidad Hispana, the Association has had to redirect its time, money, and resources to educating its members and "prepar[ing] its response" to the Deductions Law, to the detriment of other priorities. See Centro de la Comunidad Hispana, 868 F.3d at 110-11.

Other cases in this Circuit support the conclusion that the Association has demonstrated standing. For example, in Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011), the New York Taxi Workers Alliance challenged New York City's policy of immediately suspending a taxi driver's license without a hearing where a driver has been charged with a felony or certain misdemeanors. Id. at 150. Although drivers are entitled to a post-deprivation hearing, "in practice taxi licenses are never reinstated unless and until the driver secures favorable termination of the charges against him." Id. The Second Circuit reversed the district court's determination that the Taxi Workers Alliance lacked standing, noting that the Alliance's executive director had testified at his deposition that "the Alliance has expended resources to assist its members who face summary suspension by providing initial counseling, explaining the suspension rules to drivers, and assisting the drivers in obtaining attorneys." Id. at 156-57. The court also noted that " 'only a perceptible impairment' of an organization's activities is necessary for there to be an 'injury in fact,' " id. at 157 (quoting Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993), and that "[e]ven if only a few suspended drivers are counseled by [the Alliance] in a year, there is some perceptible opportunity cost expended by the Alliance, because the expenditure of resources that could be spent on other activities 'constitutes far more than simply a setback to [the Alliance's] abstract social interests,' " id. (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) ).

Similarly here, the Association has expended resources assisting members who must comply with the Deductions Law, and these expenditures have diverted the Association's attention from other priorities. Even assuming arguendo that this diversion is minimal, this "opportunity cost" qualifies as an injury-in-fact.

Citing Mental Hygiene Legal Service v. Cuomo, 13 F.Supp.3d 289 (S.D.N.Y. 2014), however, Defendants argue that litigation is a core component of the Association's mission, and thus the diversion of resources caused by the Deductions Law is not an injury-in-fact. (Def Br. (Dkt. No. 62) at 13 n.2) In that case, plaintiff challenged portions of the New York Sex Offender Management and Treatment Act as unconstitutional under the Due Process Clause and the Equal Protection Clause. Mental Hygiene Legal Service, 13 F.Supp.3d at 291. The plaintiff was a "state agency under a statutory mandate '[t]o initiate and take any legal action deemed necessary to safeguard the right of any patient or resident to protection from abuse or mistreatment.' " Mental Hygiene Legal Service v. Cuomo, 785 F.Supp.2d 205, 214 (S.D.N.Y. 2011) (quoting N.Y. Mental Hyg. Law § 47.03(e) ). The court found that plaintiff had not suffered an injury in fact, because "litigating cases like the instant action, as well as providing related legal services, is the core of [plaintiff's] activities." Mental Hygiene Legal Service, 13 F.Supp.3d at 299.

Here, however, litigation is not the "core" of the Association's activities. While litigation is one tool that the Association uses to advocate on behalf of its members, as Stephenson states in his declaration, the Association's purpose is to "support our million-plus members in starting, developing, and growing their businesses as well as serving the public." (Stephenson Decl. (Dkt. No. 55) ¶ 4) The Association accomplishes this objective by "direct outreach efforts on behalf of [its] members, by hosting educational and informational meetings and seminars, by lobbying state and local governments for restaurant-friendly policies, and by helping our members navigate their legal and regulatory obligations." (Id. ) In sum, the Association's core purpose is not litigation.

While the Association has carried its burden to demonstrate standing, the Center has not demonstrated that it has suffered an injury-in-fact. The only information in the record regarding the Center is its website's "About" page. This page states that the Center was created to

enhance the restaurant industry's legal advocacy capabilities to provide protection and advancement for the industry, including fighting overregulation at the federal, state and local level. As special interest groups increasingly turn to the courts to enact their agendas, the Restaurant Law Center will give our industry another avenue to ensure the voice of America's restaurants is heard on the legal front.

(Sturniolo Decl., Ex. 15 (Dkt. No. 50-15) at 2) This page further states that the Center "is a 501(c)(6) legal entity affiliated with, but separate from, the National Restaurant Association. The Center's goal is to promote pro-business laws and regulations that allow restaurants to continue growing, creating jobs and contributing to a robust American economy." (Id. ) Finally, the page states that the Center "will take on cases recommended by its Board of Directors, accepting only those which it believes will best advance the policy interests of the entire industry." (Id. ) No information is provided about any of the Center's members, however, nor is there any evidence that the Deductions Law has caused the Center to divert its resources away from other priorities. The Court concludes that the Center has not proffered sufficient evidence to demonstrate that it has standing.

Where "multiple parties seek the same relief, 'the presence of one party with standing is sufficient to satisfy Article Ill's case-or-controversy requirement.' " Centro de la Comunidad Hispana, 868 F.3d at 109 (quoting Rumsfeld v. Forum for Acad. and Inst. Rights, Inc. ("FAIR"), 547 U.S. 47, 52 n.2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ). Accordingly, the fact that the Association has standing is sufficient to permit this Court to adjudicate this case.

III. WHETHER FAST FOOD EMPLOYERS' FIRST AMENDMENT RIGHTS ARE VIOLATED

A. Whether Plaintiffs Bring a Facial or As-Applied Challenge

The parties dispute whether Plaintiffs' challenge to the Deductions Law is a facial challenge or an as-applied challenge, as well as the consequences of that distinction. Defendants argue that Plaintiffs bring a facial challenge to the law, (Def. Opp. (Dkt. No. 62) at 14 n.3), while Plaintiffs dispute that characterization, (see Pltf. Reply (Dkt. No. 51) at 9 n.2; Pltf. Reply to Intervenors (Dkt. No. 56) at 8-10).

In Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Departments, Appellate Div. of the Supreme Court of New York, 852 F.3d 178 (2d Cir. 2017), a law firm challenged the constitutionality of New York Rule of Professional Conduct 5.4 and certain New York statutes "that in combination work to prevent non-lawyers from investing in New York law firms." Id. at 182. Plaintiffs contended that these provisions violate the First and Fourteenth Amendments. Id. at 182-83. The district court dismissed the case for failure to state a claim, and the law firm appealed, arguing that the New York provisions violated its First Amendment rights to petition and to association. Id. at 184. The Second Circuit held that " '[b]ecause plaintiffs pursue this pre-enforcement appeal before they have been charged with any violation of law, it constitutes a facial, rather than as-applied challenge.' " Id. at 184 (quoting N.Y.S. Rifle & Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242, 265 (2d Cir. 2015) (internal quotation marks omitted) ). Similarly here, Plaintiffs bring their challenge to the Deductions Law before it has been enforced. As such, their challenge is a facial challenge.

In a facial challenge brought under the First Amendment, "the plaintiff must demonstrate that the challenged law either 'could never be applied in a valid manner' or that even though it may be validly applied to the plaintiff and others, it nevertheless is so broad that it 'may inhibit the constitutionally protected speech of third parties.' " N.Y. State Club Ass'n, Inc. v. City of N.Y., 487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (quoting City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) ); see also Hobbs v. Cty. of Westchester, 397 F.3d 133, 154-55 (2d Cir. 2005) (same). This type of invalidation is " 'manifestly, strong medicine' that 'has been employed by the [Supreme] Court sparingly and only as a last resort.' " Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ).

In disputing that they are bringing a facial challenge, Plaintiffs cite Sanitation & Recycling Indus., Inc. v. City of New York, 107 F.3d 985 (2d Cir. 1997). (Pltf. Reply (Dkt. No. 51) at 9 n.2) In that case, the Second Circuit stated that "[t]here are only two situations where a court may uphold a facial challenge: when plaintiff can demonstrate that the challenged law 'could never be applied in a valid manner,' or when First Amendment rights are at issue, a subject we discuss later." Id. at 992 (quoting N.Y. State Club Ass'n, Inc., 487 U.S. at 11, 108 S.Ct. 2225 ). As both the later discussion in that case, see id. at 997-98, and New York State Club Ass'n make clear, however, this qualification regarding First Amendment rights relates only to the overbreadth doctrine. In New York State Club Ass'n, the Supreme Court stated that to prevail on a facial attack a plaintiff must demonstrate that the challenged law either "could never be applied in a valid manner" or that even though it may be validly applied to the plaintiff and others, it nevertheless is so broad that it "may inhibit the constitutionally protected speech of third parties." N.Y. State Club Ass'n, 487 U.S. at 11, 108 S.Ct. 2225 (quoting City Council of L.A., 466 U.S. at 798, 104 S.Ct. 2118 ).

Here, Plaintiffs do not claim that the Deductions Law is overbroad, much less identify parties other than fast food employers whose speech might be affected. As such, Plaintiffs "fail to describe the instances of arguable overbreadth of the contested law," Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008), and must therefore establish that there is no set of circumstances in which the Deductions Law would be constitutionally valid.

B. Whether the Deductions Law Compels Speech

1. Legal Standard

The First Amendment "prohibits the government from telling people what they must say." FAIR, 547 U.S. at 61, 126 S.Ct. 1297. Compelled speech is not limited "to the situation in which an individual must personally speak the government's message," however. Id. at 63, 126 S.Ct. 1297 ; see also Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 782, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) ("[T]he First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say."). Indeed, the Supreme Court has "in a number of instances limited the government's ability to force one speaker to host or accommodate another speaker's message." FAIR, 547 U.S. at 63, 126 S.Ct. 1297. In each of these cases, however, the Court held that speech was compelled because "the complaining speaker's own message was affected by the speech it was forced to accommodate." Id.

2. Analysis

Plaintiffs argue that the Deductions Law "compel[s] employers to support not-for-profits by making donations on employees' behalf - requiring employers to repeat employees' messages." (Pltf. Br. (Dkt. No. 48) at 18) According to Plaintiffs, it is of "no constitutional moment" that the donations come from employees' wages - "[t]he City may not commandeer employers into administratively assisting employees' efforts to speak collectively any more than it can commandeer them into aiding employees' attempts to speak individually." (Id. at 20 n.2) As an example, Plaintiffs assert that "[t]he City surely could not require fast food employers to print and distribute political leaflets of a fast food employee's design so long as the employee paid for the employer's efforts." (Id. )

Defendants respond that the Deductions Law regulates conduct, not speech. The law requires fast food employers to "administratively forward charitable deductions by their employees to a registered not-for-profit [and thus] regulates what employees must 'do' and not what they must 'say.' " (Def. Br. (Dkt. No. 62) at 15)

According to Plaintiffs, however, the act of disseminating others' speech is necessarily speech itself. (See Pltf. Br. (Dkt. No. 48) at 21 ("The [Deductions Law] therefore compels a fast food employer to make a First-Amendment-protected donation to a specified not-for-profit at an employee's direction ....") (emphasis in original) ); Pltf. Reply (Dkt. No. 51) at 11 ("The [Deductions Law] requires what all agree is First-Amendment-protected speech - the contribution of money to an ideological or political not-for-profit - and obligates employers to perform it at employees' direction, subject only to purported recompense.... [M]oney donations to ideological or political not-for-profits are equally speech - and thus employers are equally entitled to refuse to distribute employees' message.") )

Plaintiffs' assertion is overbroad. Under the First Amendment, an entity's mere transmission of others' speech does not necessarily constitute speech of that entity. For example, in U.S. Telecom Ass'n v. FCC, 825 F.3d 674 (D.C. Cir. 2016), the Federal Communications Commission promulgated an order - the "2015 Open Internet Order" - that "reclassified broadband service as a telecommunications service, subject to common carrier regulation under Title II of the Communications Act. The Commission also exercised its statutory authority to forbear from applying many of Title II's provisions to broadband service and promulgated five rules to promote internet openness." Id. at 689. Plaintiffs - mostly "broadband providers and their associations," id.- challenged the FCC's order, arguing, inter alia, that some of the internet rules violated the First Amendment. Id. One plaintiff argued that the rules "violate[d] the First Amendment by forcing broadband providers to transmit speech with which they might disagree." Id. at 740.

In holding that the FCC's internet rules did not violate the First Amendment, the D.C. Circuit noted that "[c]ommon carriers have long been subject to nondiscrimination and equal access obligations akin to those imposed by the rules without raising any First Amendment question. Those obligations affect a common carrier's neutral transmission of others' speech, not a carrier's communication of its own message." Id. (emphasis in original). The D.C. Circuit further ruled that "the communicative intent of the individual speakers who use such transmission networks does not transform the networks themselves into speakers." Id. at 742. This logic applies with equal force here - fast food employers' "transmission" of employees' speech does not necessarily demonstrate that the employers themselves are speaking.

Plaintiffs reject this analysis, analogizing the act of a fast food employer directing deducted employee wages to a non-profit organization to the act of a non-profit organization donating supporters' contributions to a political action committee. Plaintiffs argue that "[n]umerous not-for-profits are intermediaries, donating money contributed by individuals to other not-for-profits, who use these received donations to support causes often designated by original donors. But per Defendants, such intermediary nonprofits are not engaged in First-Amendment-protected speech." (Pltf. Reply (Dkt. No. 51) at 10 (citation omitted) ) Similarly, Plaintiffs argue that "if Defendants' intermediaries-do-not-count theory is correct, then a PAC does not engage in protected speech when it receives an individual's donation and passes it on to a candidate consistent with that PAC's vision." (Id. (citations omitted) )

In Plaintiffs' examples, however, both the non-profit and the political action committee have discretion to determine how the donations they receive will be allocated. The D.C. Circuit in U.S. Telecom Ass'n noted the significance of such discretion in deciding whether broadband providers' First Amendment interests were violated, and it contrasted broadband providers with other types of content distributors that do have discretion regarding the content they publish, such as newspapers and cable television companies:

To be sure, in certain situations, entities that serve as conduits for speech produced by others receive First Amendment protection. In those circumstances, however, the entities are not engaged in indiscriminate, neutral transmission of any and all users' speech, as is characteristic of common carriage. For instance, both newspapers and "cable television companies use a portion of their available space to reprint (or retransmit) the communications of others, while at the same time providing some original content." City of L.A. v. Preferred Communications, Inc., 476 U.S. 488, 494, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986) (internal quotation marks omitted). Through both types of actions - creating "original programming" and choosing "which stations or programs to include in [their] repertoire" - newspapers and cable companies "seek[ ] to communicate messages on a wide variety of topics and in a wide variety of formats." Id.

In selecting which speech to transmit, newspapers and cable companies engage in editorial discretion. Newspapers have a finite amount of space on their pages and cannot "proceed to infinite expansion of ... column space." Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). Accordingly, they pick which articles and editorials to print, both with respect to original content and material produced by others. Those decisions "constitute the exercise of editorial control and judgment." Id. at 258, 94 S.Ct. 2831. Similarly, cable operators necessarily make decisions about which programming to make available to subscribers on a system's channel space. As with newspapers, the "editorial discretion" a cable operator exercises in choosing "which stations or programs to include in its repertoire" means that operators "engage in and transmit speech." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 636, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (internal quotation marks omitted). The Supreme Court therefore applied intermediate First Amendment scrutiny to (but ultimately upheld) must-carry rules constraining the discretion of a cable company concerning which programming to carry on its channel menu. See id. at 661-62, 114 S.Ct. 2445.

In contrast to newspapers and cable companies, the exercise of editorial discretion is entirely absent with respect to broadband providers subject to the Order. Unlike with the printed page and cable technology, broadband providers face no such constraints limiting the range of potential content they can make available to subscribers. Broadband providers thus are not required to make, nor have they traditionally made, editorial decisions about which speech to transmit. In that regard, the role of broadband providers is analogous to that of telephone companies: they act as neutral, indiscriminate platforms for transmission of speech of any and all users.

U.S. Telecom Ass'n, 825 F.3d at 742-43 (internal citation omitted).

This same distinction applies here. Under the Deductions Law, although fast food employers serve as an intermediary for their employees' speech by administering a payroll deduction scheme, they have no discretion as to the recipient of their employees' donations - they merely follow their employees' instructions. Given these circumstances, the employers' mere act of sending a check to an employee's designated non-profit recipient is not speech.

Bailey v. Callaghan, 715 F.3d 956 (6th Cir. 2013) is instructive on this point. In Bailey, a Michigan statute prohibited public school employers from collecting union dues through payroll deductions. Id. at 957-58. Plaintiffs argued that the schools' payroll-deduction process is a " 'nonpublic forum,' from which the unions cannot be excluded." Id. at 959. The Sixth Circuit rejected the notion that "a payroll deduction - the ministerial act of deducting a particular sum from an employee's paycheck - is itself expressive activity. The administrative process in which that deduction occurs, therefore, is not a forum of any kind." Id. The Sixth Circuit went on to hold that the Michigan statute did not violate the First Amendment, because the First Amendment " 'does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.' " Id. at 958 (quoting Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 355, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009) ). Similarly here, the act of "deducting a particular sum from an employee's paycheck" is a mere "ministerial act," not speech.

Finally, Plaintiffs cite to cases holding that political contributions are speech. (See Pltf. Br. (Dkt. No. 48) at 18-20) Those cases are not persuasive here, because they address individuals or corporations donating their own money. See McCutcheon v. FEC, 572 U.S. 185, 227, 134 S.Ct. 1434, 188 L.Ed.2d 468 (2014) (plurality opinion) (invalidating campaign finance contribution restrictions); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 211-12, 233-37, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) (collection of "service charge" from non-union employees equal to union dues was unconstitutional as to the portion of the charge unrelated to collective bargaining activities); Citizens United v. FEC, 558 U.S. 310, 320-21, 371-72, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (invalidating restriction on corporations and unions using general treasury funds for "electioneering communications"); Amidon v. Student Ass'n of State Univ. of N.Y. at Albany, 508 F.3d 94, 95-98, 101-02 (2d Cir. 2007) (advisory student referendum to determine how to allocate funds collected from mandatory student activity fee at a state university violated the First Amendment).

Although this Court has concluded that the payroll deductions at issue here do not constitute employer speech, that does not end the inquiry. As the Supreme Court has stated, "compelled-speech cases are not limited to the situation in which an individual must personally speak the government's message. We have also in a number of instances limited the government's ability to force one speaker to host or accommodate another speaker's message." FAIR, 547 U.S. at 63, 126 S.Ct. 1297. Critical to a First Amendment violation in these cases, however, is a finding that "the complaining speaker's own message was affected by the speech it was forced to accommodate." Id. Here, Plaintiffs have not produced evidence sufficient to create a genuine issue of material fact as to whether the speech of fast food employers is affected by the Deductions Law.

In FAIR, the Supreme Court analyzed the constitutionality of the Solomon Amendment, which "denies federal funding to an institution of higher education that 'has a policy or practice ... that either prohibits, or in effect prevents' the military 'from gaining access to campuses, or access to students ... on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.' " Id. at 55, 126 S.Ct. 1297 (quoting 10 U.S.C. § 983(b) ). FAIR - an association of law schools and law faculties - wanted to "restrict military recruiting on their campuses because they object to the policy Congress has adopted with respect to homosexuals in the military." Id. at 52, 126 S.Ct. 1297. The Solomon Amendment thus forced these institutions to "choose between enforcing their nondiscrimination against military recruiters in this way and continuing to receive specified federal funding." Id. FAIR sued to invalidate the Solomon Amendment under the First Amendment. The Supreme Court held that "accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions.... [A school's] accommodation of a military recruiter's message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school." Id. at 64, 126 S.Ct. 1297.

Here, the Deductions Law likewise does not interfere with fast food employers' ability to communicate their own message. Fast food employers are free to donate to causes they support, and to indicate their disagreement with the policies of organizations that their employees donate to.

Because the Deductions Law does not interfere with fast food employers' speech, Pacific Gas & Elec. Co. v. Public Utilities Comm'n, 475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) - cited by Plaintiffs (see Pltf. Opp. (Dkt. No. 51) at 11) - is not persuasive here. In Pacific Gas, a California utility company distributed a newsletter with the bills it sent to its customers each month. Id. at 1, 106 S.Ct. 903. The newsletter was designed such that it would not result in any additional postage cost. Id. at 5-6, 106 S.Ct. 903 (quoting App. to Juris. Statement at A-2). California's Public Utilities Commission ruled that an intervenor in a ratemaking proceeding before the Commission - Toward Utility Rate Normalization ("TURN") - could use this "extra space" in the monthly billing envelopes up to four times a year to distribute its own message, as long as it stated "that its messages are not those of [Pacific Gas.]" Id. at 6, 106 S.Ct. 903. The Supreme Court held that the Commission's ruling violated Pacific Gas's First Amendment rights. In a plurality opinion, four justices held that this requirement violated the First Amendment because the access to the extra space was not "content neutral," as "[t]wo of the acknowledged purposes of the access order are to offer the public a greater variety of views in appellant's billing envelope, and to assist groups (such as TURN) that challenge appellant in the Commission's ratemaking proceedings in raising funds." Id. at 12-13, 106 S.Ct. 903. Further, "[s]uch one-sidedness impermissibly burdens appellant's own expression." Id. at 13, 106 S.Ct. 903.

As the Supreme Court explained,

because access is awarded only to those who disagree with appellant's views and who are hostile to appellant's interests, appellant must contend with the fact that whenever it speaks out on a given issue, it may be forced - at TURN'S discretion - to help disseminate hostile views. Appellant "might well conclude" that, under these circumstances, "the safe course is to avoid controversy," thereby reducing the free flow of information and ideas that the First Amendment seeks to promote. [ Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 257, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974).]

Id. at 14. Accordingly, "when the state agency ordered [Pacific Gas] to send a third-party newsletter four times a year, it interfered with the utility's ability to communicate its own message in its newsletter." FAIR, 547 U.S. at 64, 126 S.Ct. 1297.

Here, there is no similar risk that fast food employers would choose not to "speak out" at all. Moreover, fast food employers are not required to distribute a message they oppose alongside their own messages - rather, they are only required to perform the "ministerial act" of administering payroll deductions.

C. Whether Fast Food Employers Are Compelled to Associate with Non-Profits

1. Legal Standard

"[T]he ... 'freedom of association' protected by the First Amendment has been generally understood to encompass two quite different types of associational activity: 'choices to enter into and maintain certain intimate human relationships,' and 'associat[ion] for the purpose of engaging in those activities protected by the First Amendment - speech, assembly, petition for the redress of grievances, and the exercise of religion.' " Jacoby & Meyers, 852 F.3d at 187-88 (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) ). These rights are commonly called "intimate association" and "expressive association," respectively. See Sanitation & Recycling Industry, Inc. v. City of N.Y., 107 F.3d 985, 995-96 (2d Cir. 1997) ("The United States Constitution affords protection to two distinct types of association, 'intimate association' and 'expressive association.' "); see also FAIR, 547 U.S. at 68, 126 S.Ct. 1297 (The First Amendment protects the right to "associate for the purpose of speaking, which [the Supreme Court has] termed a 'right of expressive association.' " (quoting Boy Scouts of Am. v. Dale, 530 U.S. 640, 644, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000) )).

Here, fast food employers' expressive associational interests are implicated. However, the Supreme Court has only found forced association where "actual association threatened to distort the groups' intended messages." Wash. State Grange, 552 U.S. at 457 n.9, 128 S.Ct. 1184 (emphasis in original). In Wash. State Grange, the Supreme Court noted that it was not aware of any "case in which the mere impression of association was held to place a severe burden on a group's First Amendment rights." Id. (emphasis in original).

2. Analysis

Plaintiffs claim that the Deductions Law compels them to associate with non-profit organizations in three ways. First, it compels fast food employers to "identify with particular not-for-profits by making donations to them." (Pltf. Br. (Dkt. No. 48) at 21) Second, "[e]mployers' donations to employees' selected not-for-profits will appear, at minimum, in the financial records of the fast food employer and the recipient organization, the third-party banks used to transmit donations, and in any publicly-required disclosures that either is required to make regarding not-for-profit donations."

(Id. at 22) Third, the Deductions Law requires fast food employers to communicate and interact, on a routine basis, with organizations that fast food employers may prefer not to associate with. (Id. at 23) Plaintiffs contend that "[t]hese undesired [encounters] are quite literally forced association: a requirement to interact substantially with another private party." (Id. )

Defendants argue that fast food employers do not have a right to avoid the " 'mere impression of association' "; rather, they must demonstrate that " 'actual association threaten[s] to distort the[ir] intended messages.' " (Def. Reply (Dkt. No. 63) at 10-11 (quoting Wash. State Grange, 552 U.S. at 457 n.9, 128 S.Ct. 1184 ) (emphasis in Wash. State Grange ) ) Intervenors argue that because there is no violation of fast food employers' speech rights, there is no associational violation: "[w]here, as here, an employer is not actually engaged in protected expression with which the law interferes[,] ... there can be no infringement." (Intervenors Br. (Dkt. No. 66) at 22) )

As to Plaintiffs' first argument, their associational rights are not violated, because the requirement that fast food employers set up a payroll deduction system does not implicate constitutionally protected speech. As discussed above, Plaintiffs do not have a freestanding right of association - rather, Plaintiffs have a right of association " 'for the purpose of engaging in those activities protected by the First Amendment.' " Jacoby & Meyers, 852 F.3d at 187-88 (quoting Roberts, 468 U.S. at 618, 104 S.Ct. 3244 ).

As to Plaintiffs' second argument, Plaintiffs have not offered evidence suggesting that the transactions at issue would be disclosed in a way that would associate fast food employers with non-profits, much less associate them in a way that "threaten[s] to distort [the food employers'] intended messages." Wash. State Grange, 552 U.S. at 457 n.9, 128 S.Ct. 1184. In other words, there is no reason to believe that any disclosure of the payroll deductions would lead others to believe that the fast food employers were associating themselves with the non-profits designated by their employees, or that employers would be perceived as expressing a message of support for these non-profits. Any risk of confusion on this score appears quite minimal. See FAIR, 547 U.S. at 65, 126 S.Ct. 1297 (where Solomon Amendment required law schools to afford military recruiters access to campus, law schools argued they might be perceived as sending a message of not disapproving of the military policies; Supreme Court stated that "[w]e have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. Surely students have not lost that ability by the time they get to law school." (citations omitted) )

As to Plaintiffs' final complaint - concerning the administrative interactions fast food employers will be required to have with non-profits as a result of the Deductions Law - as discussed earlier, these interactions will not have a significant effect on fast food employers' ability to express their own messages. In FAIR, for example, FAIR argued that "the Solomon Amendment violates law schools' freedom of expressive association. According to FAIR, law schools' ability to express their message that discrimination on the basis of sexual orientation is wrong is significantly affected by the presence of military recruiters on campus and the schools' obligation to assist them." Id. at 68, 126 S.Ct. 1297.

In rejecting this argument, the Supreme Court concluded that the Solomon Amendment did not significantly affect the law schools' associational rights:

To comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students - not to become members of the school's expressive association. This distinction is critical. Unlike the public accommodations law in [ Boy Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000) ], the Solomon Amendment does not force a law school " 'to accept members it does not desire.' " [ Id. ] at 648 [120 S.Ct. 2446] (quoting Roberts, 468 U.S. at 623 [104 S.Ct. 3244] ). The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, ... so too a speaker cannot "erect a shield" against laws requiring access "simply by asserting" that mere association "would impair its message." [ Dale, 530 U.S. at 653, 120 S.Ct. 2446.]

Id. at 69, 126 S.Ct. 1297 (emphasis in original).

The administrative interactions that fast food employers will have with non-profits as a result of the Deductions Law appear less intrusive than the interactions at issue in FAIR. Although Plaintiffs complain that fast food employers will have to interact with non-profits "to discern the not-for-profit's preferred mode of payment, to remit donations, to collect reimbursable costs, to inform the not-for-profit when employees are separated from employment, and so on," (Pltf. Br. (Dkt. No. 48) at 23), these administrative interactions present little risk of interfering with fast food employers' intended messages. In FAIR- given that military recruiters conducted interviews on campus - the law schools arguably could have been seen as endorsing the military's position on a variety of issues. The Supreme Court concluded that no associational rights were violated in FAIR, however, and that is a fortiori true here.

Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009) - cited by Plaintiffs - is not to the contrary. (See Pltf. Br. (Dkt. No. 48) at 23; Pltf. Reply (Dkt. No. 51) at 14) In Ysursa, public employees in Idaho were permitted to have a portion of their wages deducted by their employer and remitted to pay union dues, but were not allowed to have an amount deducted and remitted to a union's political action committee. See Ysursa, 555 U.S. at 355, 129 S.Ct. 1093. "A group of unions representing Idaho public employees challenged this restriction." Id. The Supreme Court rejected the challenge, holding that while "[t]he First Amendment prohibits government from 'abridging the freedom of speech'; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.' " Id. After holding that the law did not abridge unions' First Amendment rights, the Court found that the law passed rational basis review, as it was "justified by the State's interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics." Id. at 359, 129 S.Ct. 1093. The Supreme Court concluded that "[t]he ban on such deductions plainly serves the State's interest in separating public employment from political activities." Id. at 361, 129 S.Ct. 1093.

Plaintiffs read Ysursa to hold that, "[b]y necessity, deduction schemes associate employers with recipient organizations and viewpoints." (Pltf. Reply (Dkt. No. 51) at 14) Ysursa contains no such language and articulates no such finding, however. Acknowledging that Ysursa speaks of the State's interest in "avoiding the reality or appearance of government favoritism or entanglement with partisan politics," Ysursa, 555 U.S. at 359, 129 S.Ct. 1093, and even assuming arguendo that the mere impression of association is sufficient to create a First Amendment violation, contra Wash. State Grange, 552 U.S. at 457 n.9, 128 S.Ct. 1184 (stating that Supreme Court is "aware of no case in which the mere impression of association was held to place a severe burden on a group's First Amendment rights") (emphasis in original), Plaintiffs have not submitted sufficient evidence to create a genuine issue of material fact as to whether fast food employers' interactions with non-profits pursuant to the Deductions Law will lead to misimpressions as to their messages. A speaker cannot "erect [a First Amendment] shield" against a law simply by asserting that mere association would impair the speaker's message. See FAIR, 547 U.S. at 69, 126 S.Ct. 1297. Plaintiffs' bare assertion that payroll deductions to benefit certain non-profits would "associate" fast food employers with those non-profits - without more - is insufficient to demonstrate a First Amendment violation.

D. Whether Fast Food Employers Are Required to Subsidize Employees' Speech

1. Legal Standard

It is a "bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support." Harris v. Quinn, 573 U.S. 616, 134 S.Ct. 2618, 2644, 189 L.Ed.2d 620 (2014). This principle is violated even where the subsidy is later refunded. See Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 317, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) ("the First Amendment does not permit a union to extract a loan from unwilling nonmembers even if the money is later paid back in full"); Ellis v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, Exp. & Station Emps., 466 U.S. 435, 444, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984) ("By exacting and using full dues, then refunding months later the portio