Gov. Kathy Hochul (D-NY) signed a bill on Sept. 9 that tells you everything about how entrenched interests behave when they start losing an argument. They don’t get better at making their case. They get a lawyer, a subpoena, and a fine schedule.
The new law makes it illegal to “falsely impersonate” a union or a union representative in New York. On its face, that sounds reasonable. Fraud is bad and nobody wants a con artist posing as a shop steward to steal a worker’s Social Security number. But read past the press release and you find the real target: the state attorney general now has subpoena power and can seek $1,000 per violation against any person or group, in state or out, whose mailers about a worker’s right to leave a union get labeled “impersonation.” Unions get their own private right to sue on top of that. I’ve spent three decades in regulated finance, and I know what an uncapped $1,000-per-item liability schedule does to an organization’s willingness to speak. It doesn’t punish fraud. It punishes volume.
The group this law was built to hit is the Freedom Foundation, a nonprofit organization that has spent years telling public employees about their rights under Janus v. AFSCME, the 2018 Supreme Court decision holding that government workers cannot be forced to pay union dues as a condition of employment. The foundation’s mail campaigns tell workers, in clearly branded materials, that they can opt out. By the group’s count, more than 5,000 Oregon public employees dropped union membership in 2025 alone. That is not a rounding error to a union treasurer. It is a budget crisis. Foundation CEO Aaron Withe called the New York law “a hit job,” and for once a political sound bite has the virtue of being accurate.
New York did not invent this playbook. Oregon passed its own version, HB 3789, which lets unions sue for up to $6,250 per mailer. By the foundation’s math, one statewide mailing could expose it to roughly $1 billion in theoretical liability. A federal district court tossed the challenge on ripeness grounds, reasoning that no union had sued yet, so there was nothing concrete to fight. That’s a neat trick: pass a law so punishing nobody dares trigger it, then argue there’s no live controversy because nobody’s been punished. The foundation appealed to the 9th Circuit, and that case tests the same question New York’s law raises. Can a state ban genuine fraud without also banning the truth?
New York and Oregon are not alone in reaching for this playbook. California just used the same tool on a different target. In August, Gov. Gavin Newsom (D-CA) signed AB 2624, quickly nicknamed the Stop Nick Shirley Act after the videographer whose viral investigations into taxpayer-funded daycare and immigration-services programs prompted it. The bill expands California’s Safe at Home program to shield immigration-services providers, penalizing anyone who posts their information with intent to harass. Nobody wants a whistleblower’s family doxed, but the mechanism is identical: write an intent standard vague enough that a citizen with a camera thinks twice before filming. Three states, three favored constituencies, one blueprint.
Here’s the constitutional problem in plain English. The First Amendment doesn’t protect a con man who tells a worker, “I’m from Local 47, hand over your bank routing number.” Nobody argues for that. But impersonation statutes like these don’t stop at fraud. They reach organizations that identify themselves accurately and simply tell a worker a true fact about a right the Supreme Court already recognized. A law that lets an attorney general or a union decide, after the fact, that a truthful mailer “resembled” official union correspondence isn’t an anti-fraud statute. It’s a vagueness machine, and vague speech restrictions chill more speech than they ever catch fraud. Late Justice Antonin Scalia spent a career explaining that the Constitution doesn’t bend to whichever outcome a legislature finds convenient, and a legislature can’t dress up viewpoint discrimination in an anti-fraud costume and expect the label to survive scrutiny.
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Supporters will tell you this law simply protects workers from deceptive mail. Fine, hold them to that. If the Freedom Foundation’s mailers falsely claim to be official union communications, New York already has fraud and false advertising statutes on the books to handle it, the same way every state prosecutes someone who fakes a police badge. What New York actually built is a mechanism that lets the accuser define the crime after the letter has gone out, then bill the sender $1,000 a copy for the privilege of being investigated. That isn’t law enforcement. That’s a tollbooth on the road to telling workers the truth.
The Eagles had it right decades before anyone drafted this bill: you can check out any time you like, but you can never leave. Janus was supposed to change that lyric for 6 million public employees. New York’s legislature just spent its Labor Day reception weekend rewriting it back. Every state legislator eyeing a copycat bill should ask one question before voting yes: Are you protecting workers, or protecting your own favored group from an inconvenient fact? The 9th Circuit is about to answer that for Oregon, and California’s version will draw its own challenge soon enough. New York’s turn is coming, and I wouldn’t bet the union hall on the outcome.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science in criminal justice from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.