Associated Builders and Contractors of California Cooperation Committee, Inc. v. Xavier Becerra, Attorney General of California, et al.

California law formerly permitted nonprofit advocacy organizations of all viewpoints to receive a certain type of private donation—called a “prevailing wage contribution.” But a recent legislative amendment, known as S.B. 954, limits eligibility for those donations to organizations selected in a collective bargaining agreement (CBA). Petitioner, an advocacy organization that primarily subsisted off of prevailing wage contributions and that stood to lose its funding, sued on the theory that the purportedly “neutral” criterion of designation in a CBA acts as a proxy for union-favored viewpoints. It alleged that, in practice, no CBA will authorize funding to a group that speaks contrary to union interests, and pointed to S.B. 954’s over- and under-inclusiveness as evidence of the law’s true, discriminatory purpose. The Ninth Circuit rejected this viewpointdiscrimination-by-proxy theory, held that the law was a facially neutral government speech subsidy, and affirmed the district court’s dismissal of the complaint under Fed. R. Civ. P. 12 without leave to amend. The questions presented are:

1. Does a plausible allegation that a facially “neutral” law acts as a proxy for viewpoint discrimination state a valid claim for relief under the First Amendment?

2. Does a law that determines which private parties may receive a certain type of private donation constitute a government subsidy of speech, or instead a restriction on private speech?