Plaintiff labor organizations ("Plaintiffs") sued officials of the State of Idaho, claiming that the Voluntary Contributions Act ("VCA"), Idaho Code §§ 44-2004(2) and -2601 to -2605, violated Plaintiffs' constitutional rights under the First Amendment as well as other constitutional provisions. Before the district court, the State officials conceded that all challenged provisions were unconstitutional, except Idaho Code § 44-2004(2), which prohibits any payroll deductions for "political activities." The district court held the ban on payroll deductions to be constitutional as applied to the state government itself, but unconstitutional as applied to private and local government employers. The State officials contend on appeal that the payroll deduction ban may be constitutionally applied to local government employers. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We hold that Idaho Code § 44-2004(2), as applied to local government employers, violates the First Amendment because it is a content-based law for which the State officials assert no compelling justification. Moreover, the State officials have not demonstrated that the law should be reviewed under the more relaxed standard applicable to speech restrictions in nonpublic fora. In particular, they have not shown that the State of Idaho may properly assert a proprietary interest in controlling access to the payroll systems that constitute the fora in this case. Caselaw suggests that the authority over local governments the State possesses by operation of law is not enough to associate the local workplaces or payroll deduction programs with the State of Idaho, and the State officials have adduced no specific evidence that the State actually does own, administer, or control the payroll deduction programs.
STANDARD OF REVIEW
We review de novo the district court's decision on cross-motions for summary judgment, Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir.2002), applying the same standard used by the trial court under Federal Rule of Civil Procedure 56(c), Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110, 1131 (9th Cir.2003). We must decide whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir.2001). Mixed questions of law and fact and ultimate conclusions of law receive de novo review. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). We may affirm the district court's grant of summary judgment on any ground supported by the record. Enlow v. Salem-Keizer Yellow Cab Co., 371 F.3d 645, 649 (9th Cir.2004).
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, the Idaho legislature enacted the VCA, a series of amendments to Title 44 of the Idaho Code, including an amendment to Chapter 20 ("Right to Work"). See 2003 Idaho Sess. Laws Ch. 97, 340 (enacting H.B. 329 and S.B. 1176); id. Ch. 340 (S.B.1176). The Chapter 20 amendment states: "Deductions for political activities as defined in chapter 26, title 44, Idaho Code, shall not be deducted from the wages, earnings or compensation of an
Plaintiffs filed suit challenging the constitutionality of the VCA, naming as defendants Bannock County Prosecuting Attorney Mark Heideman, Idaho Attorney General Lawrence Wasden, and Secretary of State Ben Ysursa (collectively, "Defendants"). Plaintiffs sought declaratory and injunctive relief from enforcement of § 44-2004(2) as violative of their rights to free speech and equal protection under the First and Fourteenth Amendments.
Defendants conceded that several provisions of the VCA were unconstitutional because they restricted the ability of labor organizations to solicit political contributions, namely, Idaho Code §§ 44-2601 to -2605. On cross-motions for summary judgment with respect to the remaining substantive provision banning payroll deductions for political activities, the district court held that the payroll deduction prohibition violated the First Amendment to the extent it applied to local government employers and private employers. It also held, however, that the payroll deduction ban could be applied constitutionally to the State's own payroll system, i.e., to employees of the State of Idaho. Accordingly, the court granted in part and denied in part both motions. Pocatello Educ. Ass'n v. Heideman, 2005 WL 3241745 (D.Idaho 2005). Ysursa and Wasden ("Appellants") now appeal the district court's ruling that § 44-2004(2) is unconstitutional with respect to local government employers and school district employers.
Idaho Code § 44-2004(2) burdens speech by diminishing Plaintiffs' ability to
The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the Government for a redress of grievances." The Fourteenth Amendment renders that prohibition applicable to the States. See, e.g., Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) (explaining that freedom of speech is one of the fundamental personal rights and liberties secured against state abridgment by the Fourteenth Amendment).
This restriction on voluntary political contributions burdens political speech, which is protected by the First Amendment; indeed, political speech is a "central concern" of First Amendment jurisprudence. See Burson v. Freeman, 504 U.S. 191, 196, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (plurality opinion); accord, Fed. Election Comm'n v. Wis. Right to Life, Inc., ___ U.S. ___, 127 S.Ct. 2652, 2664, 168 L.Ed.2d 329 (2007); Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 657, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990); Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1008 (9th Cir. 2003). "[T]here is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966).
The law does not prohibit Plaintiffs from participating in political activities, but it hampers their ability to do so by making the collection of funds for that purpose more difficult. The district court found that unions face substantial difficulties in collecting funds for political speech without using payroll deductions because of their members' concerns over identity theft associated with other electronic transactions, as well as the time-consuming nature of face-to-face solicitation. The district court found that the payroll deduction ban would decrease the revenues available to Plaintiffs to use for political speech. Restricted funding will, therefore, diminish Plaintiffs' ability to engage in political speech, and § 44-2004(2) is properly viewed as a regulation of protected speech. Cf. Meyer v. Grant, 486 U.S. 414, 420-23, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988) (holding that a Colorado law prohibiting the payment of circulators of initiative petitions is properly viewed as a burden on political speech because its effect was to limit the number of voices who would convey a petition's message, limit the size of the audience who would receive the message, and make it less likely the petition would gain enough signatures to earn placement on the state ballot).
The law on its face prohibits payroll deductions only for political activities. This is subject-matter discrimination, which is a form of content discrimination. Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 537-38, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980); see also Burson, 504 U.S. at 197, 112 S.Ct. 1846 (holding a Tennessee law prohibiting speech related to a political campaign near polling places to be a content-based restriction); Bayless, 320 F.3d at 1009 (holding a state statute restricting only expenditures which expressly advocate election or defeat of a candidate to be a content-based restriction).
Strict scrutiny, however, is not applied in all circumstances involving contentbased restrictions. See Davenport v. Wash. Educ. Ass'n, ___ U.S. ___, 127 S.Ct. 2372, 2381, 168 L.Ed.2d 71 (2007). Appellants contend that two excepted circumstances apply here, and it is to that argument that we now turn.
I. Government-Subsidized Speech
In general, government may refrain from paying for speech with which it disagrees. See, e.g., Regan v. Taxation With Representation, 461 U.S. 540, 544-46, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) (explaining that Congress may make contentbased distinctions when it subsidizes speech, in that case by granting to qualifying organizations the amount of income taxes they would otherwise owe); Chamber of Commerce v. Lockyer, 463 F.3d 1076, 1080, 1096-97 (9th Cir.2006) (en banc) (California law prohibiting the use of state grant and program funds on activities related to union organizing did not infringe affected employers' First Amendment rights). The nonsubsidy doctrine is premised on the rationale that the government is free to confer no benefit at all and is therefore entitled to condition the receipt of the benefit on speech or silence. See Regan, 461 U.S. at 549-50, 103 S.Ct. 1997; but cf. Legal Aid Soc'y v. Legal Servs. Corp., 145 F.3d 1017, 1024-29 (9th Cir.1998) (discussing unconstitutional restrictions upon which the government may not condition receipt of a benefit).
Applying this doctrine, the district court held that the State of Idaho could properly forbid payroll deductions of its own employees to be used for union activities, as the First Amendment imposes no obligation to subsidize union and employee speech by paying for the administration of the payroll deductions. Pocatello Educ. Ass'n, 2005 WL 3241745, at *2; cf. Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307, 319-20 (6th Cir.1998); S.C. Educ. Ass'n v. Campbell, 883 F.2d 1251, 1257 (4th Cir.1989). The parties appear to be in agreement as to this point, and the holding is unchallenged on appeal. As the district court noted, however, there is no subsidy by the State of Idaho for the payroll deduction systems of local governments.
II. Forum Analysis
In certain cases, regulation of speech on government property is not subject to strict scrutiny. In particular, it is well established "that, when the government permits speech on government property
Government regulation of speech in public spaces has historically been governed by the public forum doctrine. See United States v. Kokinda, 497 U.S. 720, 725-27, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (explaining development of doctrine); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (formally classifying public property into three groups). The extent to which the government can control access depends on the nature of the relevant forum. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). The traditional public forum includes property characterized, "by long tradition or by government fiat" as "devoted to assembly and debate." Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. 948 (noting that streets and parks are the quintessential examples of public fora). The government may exclude speakers from a traditional public forum "only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest." Cornelius, 473 U.S. at 800, 105 S.Ct. 3439; see also Hague v. Comm. for Indus. Org., 307 U.S. 496, 515-16, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (Opinion of Roberts, J.) ("The privilege . . . to use the streets and parks for communication of views on national questions may be regulated in the interest of all; . . . but it must not, in the guise of regulation, be abridged or denied.").
In comparison, "designated public fora" are created where the government has opened public property for expressive activity. Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. 948. If the government has opened the property to a class of speakers, rather than offering selective access to individual speakers, the property is a designated public forum with respect to all speakers within that class. Ark. Educ. Television Comm'n, 523 U.S. at 678, 118 S.Ct. 1633; Flint v. Dennison, 488 F.3d 816, 831 (9th Cir.2007); Widmar v. Vincent, 454 U.S. 263, 267, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (state university created designated public forum for registered
Finally, a nonpublic forum has been characterized as "[a]ny public property that is not by tradition or designation a forum for public communication." Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 907 (9th Cir.2007). For example, in International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) ("ISKCON"), the Court declared airport terminals to be a nonpublic forum because, although speech activity occurs in airport terminals, their tradition and purpose is to facilitate passenger air travel and serve as a commercial enterprise, not to promote expression. Id. at 679, 682-83, 112 S.Ct. 2701. The government may limit access to "a nonpublic forum to activities compatible with the intended purpose of the property." Perry Educ. Ass'n, 460 U.S. at 49, 103 S.Ct. 948.
A "forum" does not need to be a physical place. See Rosenberger, 515 U.S. at 830, 115 S.Ct. 2510 (endorsing use of forum analysis in considering fora defined "more in a metaphysical than in a spatial or geographic sense"). For example, in Cornelius, the Supreme Court held that a charity drive within federal workplaces constituted a forum. 473 U.S. at 801, 105 S.Ct. 3439. The Court reasoned that the relevant forum should be determined on the basis of the type of access sought by the speaker to the relevant property, and the NAACP did not claim any general right of access to the federal workplace outside of the charity drive. Id. at 801-02, 105 S.Ct. 3439. Thus, the Court considered
Following Cornelius, the relevant forum in this case would be the payroll deduction programs of the local governments, as Plaintiffs seek access to this part of local government workplaces. Appellants assert that the payroll deduction programs are nonpublic fora. The government may place content-based limits on speech in a nonpublic forum, Perry Educ. Ass'n, 460 U.S. at 49, 103 S.Ct. 948, "so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius, 473 U.S. at 806, 105 S.Ct. 3439. Appellants assert that § 44-2004(2) meets this test.
Nevertheless, Plaintiffs argue strenuously that forum analysis does not apply at all because neither the payroll deduction programs nor the local workplaces are "property" of the State of Idaho in any sense, and the State of Idaho therefore cannot assert an interest in protecting the fora. To resolve this question, we consider first the required relationship between the government entity seeking to impose a free speech restriction and the forum in which it is imposed. We then examine the relationship between the State of Idaho and the workplaces of its local governments.
In ISKCON, the Court explained the rationale for forum analysis as follows: "Where the government is acting as a proprietor, managing its internal operations, rather than acting as lawmaker with the power to regulate or license, its action will not be subjected to the heightened review to which its actions as a lawmaker may be subject." 505 U.S. at 678, 112 S.Ct. 2701. Thus, in these situations, the role of the government has changed from regulator to something akin to that of a private landowner, with at least some of the associated exclusionary rights.
Forum analysis developed in battles over access to physical spaces, such as streets, buses, and airports, where property law provides a ready guide to the scope of the government's rights. Supreme Court precedent accordingly suggests that a forum may be subject to government
By contrast, the mere possession of legal authority to regulate an entity, without more, represents an insufficient level of control over that property to claim the forum in the name of the State. In Consolidated Edison, the Supreme Court rejected an attempt by the State of New York, acting through the New York Public Service Commission, to regulate Consolidated Edison's monthly bill inserts. 447 U.S. at 532-33, 100 S.Ct. 2326. The State argued that it was entitled to treat the billing envelope as "subject to the State's plenary control" because of the State's regulatory interest in controlling operations of a public utility. Id. at 540, 100 S.Ct. 2326; see also id. at 534 n. 1, 100 S.Ct. 2326 (noting that Consolidated Edison, although privately owned, was a government-regulated monopoly). The Court held that the State's legitimate regulatory interest in controlling Consolidated Edison's activities did not alter the nature of the property as private; therefore, caselaw governing rights of access to governmental property did not apply. Id. at 539-40 & n. 8, 100 S.Ct. 2326.
Reviewing the relationship between the State of Idaho and the workplaces of local governments, we conclude that Appellants have failed to establish that the State of Idaho is the proprietor of the local workplaces or of local government payroll systems. The State's relationship with the local governments instead resembles that of a regulator who possesses broad powers over them.
Appellants' evidence of control over local governments is similar to that presented by the State of New York in Consolidated Edison. Appellants rely exclusively on the state legislature's authority over
Appellants note that school districts are supervised and controlled by the State Board of Education, Idaho Code § 33-116, which must approve the changing of school district boundaries, the addition or subtraction of territory, and the creation of new districts. Id. §§ 33-307, 33-308, 33-312. Appellants also highlight Common School District No. 61 v. Twin Falls Bank & Trust Co., 50 Idaho 711, 4 P.2d 342 (1931), which states that school districts are agencies of the state. Id. at 343; but see Smith v. Meridian Joint Sch. Dist. No. 2, 128 Idaho 714, 918 P.2d 583, 591 (1996) (calling this holding into doubt in light of the subsequent passage of the Idaho Administrative Procedures Act, which specifically defines the term "agency"). Finally, school districts can only exercise implied powers consistent with those expressly granted by the legislature. Olmstead v. Carter, 34 Idaho 276, 200 P. 134, 135-36 (1921).
As illustrated by Consolidated Edison, however, the generalized lawmaking power held by the legislature with respect to a state's political subdivisions does not establish that the state is acting as a proprietor with respect to the property of local governments. In Consolidated Edison, the New York legislature had granted the Public Service Commission broad regulatory powers over Consolidated Edison. See Consol. Edison Co. v. Pub. Serv. Comm'n, 47 N.Y.2d 94, 102, 417 N.Y.S.2d 30, 390 N.E.2d 749 (1979) (noting that the Public Service Commission was granted "`all powers necessary or proper to enable it to carry out the purposes of' the Public Service Law") (quoting N.Y. Pub. Serv. Law § 4(1)), rev'd, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). The Court nevertheless found this broad grant of authority insufficient to render Consolidated Edison's billing envelopes a forum of the Public Service Commission. Here, nothing in the Idaho Code suggests that Idaho is the proprietor of the local government workplaces or their payroll deduction programs. The statutes instead suggest the opposite — that the State has granted units of local government the right to own and control their own property, independent of the State's control.
Many units of local government in Idaho are expressly declared to be independent corporate bodies, suggesting independent powers of management and governance as compared with state agencies, which lack a similarly corporate status. See, e.g., Idaho Code §§ 27-115 (cemetery maintenance districts), 31-601 (counties), 31-4204 (housing authorities), 31-4317 (recreation districts), 31-4903 (waste disposal districts), 33-301 (school districts), 33-2714 (library districts), 40-1301 (highway districts), 50-301 (cities); cf. id. §§ 20-201 (declaring
Caselaw has also recognized that local governments are distinct entities from the State of Idaho. Cf. Idaho Sch. for Equal Educ. Opportunity v. State, 140 Idaho 586, 97 P.3d 453, 457-58 (2004) (affirming school districts' right to sue the State despite a statute purporting to limit this right); Smith, 918 P.2d at 590-91 (holding that school districts and their boards of trustees are separate entities from the state); Union Pac. R.R. v. Idaho, 654 F.Supp. 1236, 1241 (D.Idaho 1987) (denying Eleventh Amendment immunity to county officials and holding that counties are independent political subdivisions of the state).
Of particular importance to forum analysis, the legislature has granted many local governmental units various powers to acquire, hold, and convey real and personal property. See, e.g., Idaho Code §§ 27-118 (cemetery maintenance districts), 31-604 (counties), 31-1419 (fire protection districts), 31-4114 (television translator districts), 31-4204 (housing authorities), 31-4317 (recreation districts), 33-301 (school districts), 50-301 (cities). These rights of ownership are clearly independent of the State itself, as other portions of the Code discuss the ability of the local government units to grant property to the State or to other political subdivisions of the State. See, e.g., Idaho Code §§ 31-1420(7). For example, school districts have the same property transfer rights vis-à-vis the State as they have vis-à-vis other government entities. Id. § 33-601(4)(b). Appellants presented no evidence that local workplaces are treated differently than other types of property owned by local government.
In sum, the State's broad powers of control over local government entities are solely those of a regulator, analogous to the New York Public Service Commission's regulatory powers over Consolidated Edison. Local governments are independent corporations and many are explicitly granted the right to own and control their own property. Lacking any evidence of the State's proprietary relationship with the local government workplace, Appellants' assertion that the payroll deduction programs of local governments are nonpublic fora belonging to the State must fail.
When pressed at oral argument, Appellants conceded that the State of Idaho is not the proprietor of local government workplaces or their payroll deduction programs. Nevertheless, Appellants suggest that Consolidated Edison, involving use of private property, is fundamentally different from the situation presented here, and that Plaintiffs' focus on property
We do recognize that the forum doctrine's stated roots in property rights has been subject to some criticism. See, e.g., Kokinda, 497 U.S. at 747 n. 4, 110 S.Ct. 3115 (Brennan, J., dissenting); Timothy Zick, Speech and Spatial Tactics, 84 Tex. L.Rev. 581 (2006) (arguing that First Amendment rights should depend on the "place" of speech rather than the form of property); Robert C. Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L.Rev. 1713, 1777 (1987) ("The Court's present focus `on the character of the property at issue' is a theoretical dead end, because there is no satisfactory theory connecting the classification of government property with the exercise of first amendment rights.") (quoting Perry Educ. Ass'n, 460 U.S. at 44, 103 S.Ct. 948). There is some support in the caselaw for an alternative theory of forum analysis which evaluates the forum in light of the degree of control exercised by the government entity. Under this approach, the question is not one of ownership or proprietorship but whether the government has exercised a sufficient degree of control over the forum such that it should be granted the right to make speech-restrictive rules in the forum.
In United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981), for example, the Court applied forum analysis to privately-owned mailboxes. Id. at 123, 128, 101 S.Ct. 2676. Clearly, no proprietary relationship exists between the government and private mailboxes. Nevertheless, the Court compared the government's rights with respect to the mailboxes to those of a private owner and declared that the State had the ability to preserve "property under its control." Id. at 130, 101 S.Ct. 2676. Cited laws controlling the use of mailboxes included a federal regulation designating the boxes as "authorized depositor[ies]" of mail and federal criminal laws affording such boxes protection against damage and the destruction of the mail contained therein. Id. at 123, 101 S.Ct. 2676. Indeed, the boxes only became "mailboxes" because of the government's daily use of the boxes for that purpose; in that sense, their essential character was completely controlled by the government. See also Perry, 460 U.S. at 46, 103 S.Ct. 948 (citing Greenburgh, 453 U.S. at 129, 101 S.Ct. 2676, for the proposition that property owned or controlled by the government calls for forum analysis); United Church of Christ v. Gateway Econ. Dev. Corp. of Greater Cleveland, Inc., 383 F.3d 449, 454 (6th Cir.2002) (recognizing that whether a privately-owned sports Complex could be treated as public property for purposes of forum analysis "turned on the amount of control exercised over . . . the Complex by the state"); Perez v. Hoblock, 368 F.3d 166, 169 n. 2, 173 (2d Cir.2004) (finding a private office in a privately-owned racetrack to be a nonpublic forum where New York regulations extensively controlled the sport of horse racing as well as the track's owner); Texas v. Knights of the Ku Klux Klan, 58 F.3d 1075, 1078-79 (5th Cir.1995) (defining the adopt-a-highway program as a nonpublic forum of the State of Texas, citing the State's detailed management of the program's administration).
Under such circumstances, one can argue that the state has a sufficient managerial interest in the resource to justify judicial deference to its rules. See Post,
But even if we were to approach forum analysis from the vantage point Appellants urge, it would not alter our conclusion. It is clear that the State of Idaho does not pervasively manage local government workplaces or local government the payroll deduction programs. Appellants cannot point to any current or previous exercise of control over local governments' administration of their payroll systems, except for the subject statute, § 44-2004(2). Appellants could cite no other situation in which Idaho has attempted to use its asserted powers to manage the day-to-day operations of local government personnel. The unique nature of the State's intervention therefore strongly suggests that the State's purpose here is exactly that against which the First Amendment protects — the denial of payroll deductions for the purpose of stifling political speech. Cf. R.A.V., 505 U.S. at 390, 112 S.Ct. 2538, Appellants have failed to establish that local governments' payroll deduction programs involve Idaho's discretion and control over the management of its own internal affairs, see Cornelius, 473 U.S. at 805, 105 S.Ct. 3439, such that the programs should be considered a nonpublic forum of the State.
Much of First Amendment analysis balances interests; forum analysis attempts to balance the interests of the government in controlling access to its property with the speech interests of the parties who wish to gain access to the property. See Bd. of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 572, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987); see Hill v. Colorado, 530 U.S. 703, 718, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000); Kokinda, 497 U.S. at 737, 110 S.Ct. 3115 (Kennedy, J., concurring);
We therefore conclude that Appellants' assertion that local government payroll deduction systems are nonpublic fora of the State of Idaho is unsupported by law or facts. The public forum doctrine does not apply to Idaho's decision to prevent local government employers from granting an employee's request to make voluntary contributions to political activities through a payroll deduction program. Accordingly, we apply the strict scrutiny analysis described above, and because § 44-2004(2) fails strict scrutiny, we hold the statute unconstitutional as applied to local government employers. The district court's grant of summary judgment in favor of Plaintiffs that Idaho Code § 44-2004(2) is unconstitutional with respect to local units of government, including school districts, is
Finally, the VCA added the following subsection to Idaho Code § 44-2004:
See 2003 Idaho Sess. Laws ch. 97 (enacting H.B. 329).