The National Right to Work, the leading group that opposes forced unionization, took on the teachers’ unions in Utah and won a remarkable victory in court.

In February 2007, the Utah Legislature enacted a school voucher law to provide children with state-funded scholarships in order to attend eligible private schools. This was a breakthrough for school vouchers nationwide because, for the first time, these school vouchers were not limited to the economically disadvantaged. All children in the state of Utah, regardless of their economic status, were eligible for at least $500 in vouchers.

These state-funded scholarships ranged in amounts from $500 to $3,000, depending on the annual income and size of the student’s family. Teachers’ unions, predictably, opposed these vouchers as a threat to their power. They planned to prevent this law from ever being implemented.

As soon as the Governor signed the school voucher bill, teachers’ unions began a petition drive to force this new law onto the ballot at the next election. Utah procedures enable opponents of a new law to force a public vote before it goes into effect. The teachers’ union petition drive attracted enough signatures, and it went on the ballot in the General Election in November 2007 as Referendum 1.

The National Right to Work Legal Defense and Education Foundation (the “Foundation”) ran ads during the petition drive which deplored the conduct of the teachers’ unions. The ads declared, “Recently, teacher union officials have launched a state-wide political blitz in Utah's public schools. Their goal? To sabotage a popular new law meant to improve the quality of education for Utah's children.”

The ads stated, “If you are a teacher or school employee, you have the right not to participate in the union's petition drive. In fact, the attorney general's office has just warned that the use of school time or resources for politics violates Utah's criminal laws. If you are pressured by a union activist, you have the legal right to say no -- without fear of union retaliation. … It's just plain wrong for union bosses or any special interest group to misuse our public schools to promote their narrow political agenda. You have rights.”

The Utah Lieutenant Governor’s office struck back against the Foundation, insisting that these ads were subject to the reporting requirements of the Utah Election Code. Utah also took the position that the Foundation must register as a “political issues committee,” which was subjected to substantial financial disclosure requirements.

Utah voters defeated the school voucher bill in the election by a margin of 62-38%. But the legal woes of the Foundation lived on past the election. To end the harassment, the Foundation had to file suit against Utah in order to obtain a ruling that it had a First Amendment right to run those ads.

The Court gave a remarkable victory to free speech, holding in favor of the ads. Nat'l Right to Work Legal Def. & Educ. Found., Inc. v. Herbert, 2008 U.S. Dist. LEXIS 68756 (D. Utah Sept. 8, 2008). The Court held that campaign finance laws could treat the Foundation as a regulated “political issues committee” only if its predominant purpose is to act as a political issues committee, or if it has the apparent purpose of acting as a political issues committee. The Foundation had neither purpose, and instead provided information to the working public. The Court also held that the ads themselves did not expressly advocate -- by using specific election-related words -- for the enactment or defeat of a particular ballot measure, and that they were not the functional equivalent of express advocacy. Therefore, Utah could not regulate either the Foundation or its ads under campaign finance laws.