COURT SAYS FREE SPEECH INCLUDES LABOR ABUSE
By William Boardman Email address removed"> Email address removed
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In America today, according to a federal appeals court, an employer's right to free speech allows the employer to trample the rights of employees.
That's how the U.S. Court of Appeals for the District of Columbia Circuit has decided a California labor dispute, applying another court's reasoning on pornography, not labor issues, and holding that somehow, by that pornographic logic, a long string of undisputed labor abuses were allowable under the First Amendment of the Constitution.
A three-judge panel heard the case in November, an appeal by the publisher of a daily newspaper, the Santa Barbara News-Press, seeking the reversal of a ruling by the National Labor Relations Board that found the newspaper had committed numerous, unfair labor practices violations. As a result, the Board had ordered the newspaper to make extensive remedies, including reinstating some of the employees (357 NLRB No. 51, 55 pages, August 11, 2011):
We agree with the [administrative law] judge that a broad cease-and-desist
order is warranted because the Respondent "has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights."
The three-judge appeals court issued its 14-page decision on December 18, vacating the decision against the publisher and denying any enforcement by the Labor Board and any relief to the harmed employees. The court ruled without addressing the facts of the case, as the opinion by Judge Stephen F. Williams, 75, put it, "without addressing the parties' arguments regarding the details of the individual violations the Board found or the propriety of the remedy imposed" (No. 11-1284).
In other words, the court wasn't denying that the publisher acted unlawfully, or that the Labor Board hadn't proposed appropriate remedies -- the court was just saying, by analogy to the logic of pornography cases, that the First Amendment protected the publisher's behavior, deprived the Labor Board of authority, and denied the employees any redress under the law.
Core Issue Not Union Busting But Union Prevention
In 2006, employees of the Santa Barbara News-Press voted 33-6 to form a union and the owner rejected the idea. The parties have persisted for more that six years, through numerous Labor Board and various court hearings based on at least 14 separate complaints of unfair labor practices and other illegal behavior, with most tribunals affirming that the owner was guilty as charged. The current U.S. Court of Appeals decision does not dispute the facts or the guilt determined in other proceedings -- it just says they don't matter to the law.
The backstory of this case begins around 1855, with the founding of the Santa Barbara newspaper that eventually became the News-Press, which hummed along for almost a century and a half as the only daily in a city that grew to about 90,000 people before starting to lose population in the 2010 census. The New York Times bought the paper in 1984 and ran it till 2000, when it sold for $100-150 million (accounts differ).
The buyer and current owner is Wendy Petrak McCaw, 61, the multi-millionaire ex-wife of cellular phone billionaire Craig McCaw, 63, of Seattle. They met as Stanford undergraduates. On her official website, where she is still blonde, Wendy McCaw appears with a picture of Hollywood's Michael Douglas and notes that she won the Michael Douglas Philanthropist of the Year Award in 2004, calling herself "a staunch defender of wildlife preservation and animal welfare" who also has a "commitment to the restoration and preservation of historic architecture."
The first five years of her ownership of the News-Press were reportedly often tense between her and the 50 or so newsroom staffers, foreshadowing the turmoil to come. In 2005, the Humane Society of the United States even gave her an "Outstanding Newspaper Editorials" for her "unrivalled collection of 44 insightful, timely and reasoned editorials, exploring an array of significant animal issues in need of public attention and effecting change in the process."
Under Professional Leadership, The Newsroom Stabilized
During that period (2002-2006), after McCaw hired Jerry Roberts as editor, promising he could "run the newsroom the way he wanted." The News-Press became what many, including Roberts, recall as special and wonderful place to work. Roberts had worked for 25 years at the San Francisco Chronicle and left in 2002 only after life under new owners had become "exhausting and difficult." At the News-Press, McCaw failed to keep her promise and by mid-2004 she had stopped speaking to Roberts, but he still managed to keep the paper functional, profitable, and award-winning (especially from the California Newspaper Publishers Association) through 2005.
In 2006, the News-Press imploded, eventually making international news. The beginning of trouble that spring is hard to pinpoint, but a message from the owner to then-publisher Joe Cole on April 8, as quoted in the administrative law judge's recommended decision to the Labor Board (p.15), is a harbinger of sorts, since it started with McCaw writing, "I am extremely frustrated that my goals for the paper are not being achieved, in fact I feel they have been actively thwarted."
The message listed 21 items that McCaw considered continuing problems at the paper, starting with "'Us' vs "Them' mentality." Then she told Cole, "you have done nothing to stop it. This will stop IMMEDIATELY even if it means firing the whole newsroom and hiring new people. This has nothing to do with the purported wall between news and editorial, it has everything to do with biting the hand that feeds you."
The Owner's Unhappiness Was Unassuageable
McCaw also complained about "biased reporting," especially by a reporter covering environmental issues that McCaw was personally invested in. McCaw had made the same accusation against the previous environmental reporter. Again she accused publisher Cole of doing nothing about it. (In 2004, referring to an environmental story about coyotes, the owner had objected to the coverage, complaining that the editor hadn't contacted her about the story: " I wasn't quoted, nor was I even asked -- so something is really wrong out there.") Concluding her 2006 message, McCaw wrote:
"I shouldn't have to remind you or anyone else at the paper
what my goals are, and it would be a waste of time anyway,
since they will undoubtedly continue to be ignored and worse
thwarted. With that in mind, I am going to be making some
major changes at the paper in the new [sic] future."
Less than three weeks later, on April 26, Cole resigned as publisher. An attorney, he came to the paper with McCaw and served an earlier stint as publisher until mid-2002. The paper's commitment to journalistic integrity was then a growing issue for at least 17 reporters, but the issue faded under Roberts's leadership. Cole, 56, does not talk publicly about these issues. In his place as publisher, McCaw named herself and her boyfriend, Arthur von Wiesenberger, as co-publishers, at which time von Wiesenberger gave up his column as the paper's restaurant critic.
On May 9, the paper's editorial page editor, Travis Armstrong, was arrested for driving under the influence, and the paper covered the story on page A-3. The owner and co-publishers objected to the coverage and Armstrong refused to be interviewed. When the paper covered his sentencing hearing, the owner forced editor Roberts to kill the article before it could be published. Shortly after that, Roberts left on a long-planned vacation to Greece, and working conditions at the News-Press got worse.
News Suppression Becomes Official Policy
In late June, a reporter covered a planning commission hearing at which there was some objection to the plans of actor Rob Lowe, a personal friend of McCaw, to build a 14,260 square-foot house on an empty lot. Reporting the story on June 22, the paper followed its standard procedure of giving the address of the lot in question. The editorial page editor Armstrong had emailed the managing editor -- but not the reporter -- about Lowe's concern about publishing the address, but it did not reach the reporter. That same day the paper's director of human resources distributed a memo of new policy about "confidential information," a memo that some in the newsroom took to be a gag order. And on June 23, for the first time since she'd bought the paper, McCaw issued letters of reprimand to four staffers for their part in the Lowe matter, even though no one had told them not to follow the paper's standard procedure. The letters of reprimand announced a change of that procedure.
One of those reprimanded responded to McCaw in part:
"Including the address was intentional, appropriate and
even necessary for the best understanding of the story --
even a casual reading of an edited Web version leaves one
wondering why a story about a piece of property neglects
to mention where that property might be.
"No one disputes that a newspaper's owner and/or publisher
has the absolute right to make and enforce whatever
policies they feel are appropriate . . . . But to punish hardworking
people doing the right thing whose "violation"
occurred ex post facto borders on the malicious and defamatory."
On July 3, the co-publishers McCaw and von Wiesenberger went on vacation, a Mediterranean cruise on her 193-foot yacht, carrying a crew of 14 and a helicopter. As acting publisher in their absence they appointed editorial page editor Armstrong, whose drunk driving conviction had proved so divisive within the paper just weeks earlier, when the owner ordered the suppression of the news of his sentencing.
Senior Editors Leave Newsroom Staff Undefended
Shortly thereafter the resignations began. Roberts was among the first, returning from vacation on July 6 and finding himself reporting to Armstrong, he tendered his 30-day notice only to be escorted off the premises without time to gather his stuff (later delivered by truck to his house). Within two weeks, fourteen people, mostly senior editors, but also a man who had been a columnist for 46 years, all gave notice, whereupon Armstrong also had them peremptorily removed from the premises. A month later, the Society of Professional Journalists at their annual meeting in Chicago presented an Ethics in Journalism Award to nine of those who had left the News-Press on principle.
This mass exodus from a respected daily newspaper drew international coverage from mainstream media (including the Los Angeles Times and Washington Post), as well as all the available social media. The American Journalism Review ran a long summary piece in its year-end issue, rich with detail gathered by Susan Paterno in "Santa Barbara Smackdown." Almost predictably, McCaw sued Paterno for defamation, calling the article a "biased, false and misleading diatribe" and setting off more coverage and a blogger splurge). Commenting on the suit in Columbia Journalism Review, Mike Hoyt wrote:
"McCaw called [Paterno's] piece a "biased, false and misleading diatribe.' That's odd, because it read to us as an example of the kind of solid journalism criticism that the American Journalism Review is known for at its best, the kind of analysis and reporting that would be sorely missed if the magazine disappeared.
Nevertheless it took almost two almost two years for Paterno to win in court. McCaw initially claimed 33 allegedly defamatory passages in Paterno's story. The trial judge threw out 29 of the passages. On appeal, the California Court of Appeal ruled that the other four passages were not defamatory and sent the case back to the trial court, which dismissed it on September 24, 2008.
At the same time McCaw was suing Paterno, she was also threatening to sue a local Santa Barbara business for displaying a pro-union sign reading "McCaw Obey The Law," a reference to the accumulating charges of violations of the National Labor Relations Act.
Employees Seek Protection from the Teamsters Union
Concurrently with the exodus in July, the remaining newsroom employees started exploring the possibility of organizing into a union. On July 6, about 30 of them met with a union rep and an attorney from the Teamsters. A week later, employees presented a letter to Armstrong, addressing "the intolerable conditions at the newspaper we love." The employees said they "respectfully request" that the acting publisher restore journalism ethics to the paper, invite six of the editors to return, negotiate a contract with newsroom employees, and recognize the union "as our exclusive bargaining unit." These requests, which the News-Press refused to discuss, became (with the later exception of the editors' return) the employees' "demands" -- referred to as such in their own public handouts, court papers, and media accounts.
During the summer, the employees took their struggle to the public, with hundreds of people sometimes attending rallies. At the same time, McCaw and her subordinates took actions that would eventually be found to be illegal, unfair labor practices -- including threats of lawsuits, intimidation, and firings. On August 10, the union filed with the National Labor Relations Board to represent a unit of news department employees. Despite the continued opposition of McCaw and her subordinates, on September 27, 2006, the newsroom employees voted 33-6 to join the union, which the Labor Board certified almost a year later, over the News-Press's continuing objections. By then the News-Press had fired many of the leaders among the newsroom employees.
On August 24, 2006, the union (formally: Graphic Communications Conference, International Brotherhood of Teamsters) filed their first unfair labor practice complaint (formally: Case 31-CA-27950) against McCaw's newspaper (formally: Ampersand Publishing, LLP, d/b/a/ Santa Barbara News-Press). Over time, this first complaint was consolidated with nine subsequent complaints against McCaw's newspaper, which was found to have violated labor law in each instance.
More than six years later, the U.S. Court of Appeals has ruled, in effect, that the First Amendment of the Constitution makes it permissible for the publisher of a newspaper, in this case Wendy McCaw of the Santa Barbara News-Press, to violate the National Labor Relations Act in all the ways documented by the Labor Board just because the First Amendment says, in part: "Congress shall make no law" abridging the freedom" of the press"."
There Is Little Doubt About Who Did What
The record in this case is large, but the facts are generally unambiguous. People on both sides did what they did and people on both sides claim they were justified in doing what they did and the evidence and analysis of their actions and motives has produced a record described by McCaw's attorney in a request to expand the 50-page limit on his own filing in February 2008:
"[Administrative Law]Judge Kocol issued his 75-page decision on December 26, 2007. The News-Press obtained an extension of time to file exceptions to February 25, 2008. The enormity of this case is not only established by Judge Kocol's lengthy decision, but also the facts that the hearing in this matter lasted for seventeen days, the transcript was approximately 3,500 pages long, and there were in excess of 350 exhibits introduced into evidence. In addition, the News-Press submitted a post-hearing brief of approximately 130 pages in length, the General Counsel's post-hearing brief was approximately 200 pages, and the Union's post-hearing brief was approximately 115 pages. The lengths of these briefs show the extent and complexity of the issues in the present case."
The case is clearly extensive, in great part because the people involved are numerous, their behavior is repetitive, and the arguments about repetitive behavior by numerous peoples are inherently duplicative. The complexity derives primarily from the massiveness of the evidence.
The obligation of newspaper publishers to function within the limits of the National Labor Relations Act, particularly in matters of union organizing, has been settled law since 1937, when the U.S. Supreme Court decided Associated Press v. Labor Board (301 U.S, 103) and held that the Labor Act did not abridge freedom of speech or freedom of the press, stating in part that: "The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others." [emphasis added]
Judge Williams Gets The Facts Wrong
Senior Circuit Judge Williams, writing for the three-judge panel of the U.S. Court of Appeals, does not challenge this holding, or even discuss it much, but exercises a variety of tactics simply to avoid it, beginning in his very first sentence:
"In 2006 a long-smoldering dispute between Ampersand and newsroom staff, regarding control of the News-Press's content, burst into flames."
This mischaracterizes the reality shown by the evidence, that the newsroom had been remarkably peaceful and enjoyable for about two years before 2006, as differentiated from McCaw who put her discontent in writing that spring. But the critical distortion in this opening sentence is the assertion that the actually non-smoldering dispute was about "control of the News-Press's content."
There is little evidence of any struggle over control, but the strongest such evidence is McCaw's repeated efforts to color the news with her opinions, as well as her repeated claim that reporters were "biased" when their reporting failed to reflect her opinions. If there is any evidence of the publisher addressing any possible bias in a thoughtful, methodical, professional manner, the record doesn't reflect it. But Judge Williams has established an alternative reality, and he continues:
"We are asked to review the National Labor Relations Board's conclusion that Ampersand [the News-Press] committed various unfair labor practices in the course of the fight."
The court may have been asked to review the conclusion that McCaw's company committed various unfair labor practices, but for the next 14 pages, the court avoids doing just that. Judge Williams completes the bait and switch in the next sentence in which oddly sexualized language foreshadows his argument by analogy to pornography at the end of the opinion:
We hold that the National Labor Relations Act did not protect the bulk of the employees' activity and that the Board's misconception of the line between protected and unprotected activity tainted its analysis. Because we can conceive of no principle by which the Board could cleanse that taint, we grant the petition for review, vacate the Board's decision and order, and deny the cross-application.
Reality Turns Out to be What the Court Says It Is
In other words, in Judge Williams's world, the exodus of most of the paper's editors was somehow a shrewd move aimed at a takeover, and the subsequent desire of the remaining staff to seek protection from a union is part of the same Machiavellian plot -- and that's why the court must rush to defend the publisher at all costs. And the costs are numerous, too numerous to list them all, but Judge Williams's factual errors and misrepresentations include (on page 3 alone):
- Misattributing and misrepresenting the opinion of the Labor Board in 2011 and the opinion of the administrative law judge in 2007;
- Giving weight to evidence that had been found insignificant;
- Getting uncontested facts wrong (i.e., it's not "alleged drunk driving" after the editor has been sentenced);
- Stating that "more than a dozen employees resigned" at a time when none did;
- Citing "a flurry of angry memos" where the record offers only one thoughtful memo from an editor, expressing sadness over the tensions at a time when the News-Press has just had "our strongest ever showing" in the state publisher's association award program;
- Characterizing that editor's letter as "relating to control over content," when the editor was talking about "an important, industry-wide set of standards, values and guidelines for ethical newsgathering" in a letter in which he was resigning.
Judge Williams continues in this manner, conflating professional standards with insubordination, failing to distinguish between process and product, and generally doing his best to see conspiracy everywhere, regardless of the absence of evidence to support his conviction that the reporters and the union and the Labor Board are part of the plot:
The reporters and the Board are of course free to characterize these issues as ones of reporter "autonomy" and "journalism ethics" for their own purposes, but the power to so characterize them is not a power to conjure editorial control
out of the publisher's hands. [p. 8]
As to the Fist Amendment "problem," Judge Williams claims that the Labor Board recognized it, "only to dismiss it out of hand" and then supports this assertion with a sentence constructed out of quotes taken from different sections of the Board's opinion and string together out of sequence. In fact, the Labor Board addresses the First Amendment issue at some length, concluding that "nothing in our decision requires [the News-Press] to grant that demand [for autonomy], or otherwise interfere with the [News-Press's] First Amendment right to control the content of its newspaper"."
Uses Pornography to Get to Desired Goal
Coming to the nub of the case, the judge notes that "employees' simultaneous pursuit of multiple goals -- some protected by [the Labor Act] and some not -- poses a conundrum." The multiple goals, as stated by the newsroom employees, are setting journalistic standards, establishing a union, and negotiating a contract. Judge Williams that another of their goals is overthrowing the publisher. But he does not challenge this conundrum head-on. Instead he turns to pornography, with this transition:
But whatever the ultimate answer, we do not think that employees can extend [the labor law's] protections by wrapping an unprotected goal in a protected one, by tossing a wage claim in with their quest for editorial control.
He turns then to two pornography cases from the 1960s involving John Cleland's Memoirs of a Woman of Pleasure and the movie I Am Curious-Yellow, suggesting somehow that pornography's need for a nexus of "redeeming social value" to be legal means that the judge's view of the publisher's editorial control as the main issue makes all the other issues go away, "whatever the ultimate answer."
Judge Williams acknowledges that the Labor Board considered the News-Press's First Amendment arguments to be after-the-fact pretexts to justify their actions, "a finding whose validity we do not decide here." The judge argues that that doesn't matter because the court knows better. So the appeals court finds for the News Press ex cathedra,
"" without addressing the parties' arguments regarding the details of the individual violations the Board found or the propriety of the remedy imposed."
Release of Court's Decision Makes Little Splash
News of this decision came and went quickly, characterized by an Associated Press report that said -- wrongly -- that it was about "a long-running labor dispute between the newspaper and reporters who were fired after they complained about its editorial practices." The only person quoted in the story was the News-Press attorney, which is the kind of reporting Wendy McCaw criticized when she thought her reporters were doing it about coyotes.
At the News-Press, city editor Scott Steepleton, who helped hold the fort in 2006, started his December 19 report on the court decision this way:
Striking a blow to the National Labor Relations Board's assault on the First Amendment rights of the publisher of the Santa Barbara News-Press, the U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled that the owner had the right to fire several reporters who made a hallmark of their union-organizing campaign taking over the content of the paper. As they have in previous cases, the words of former employees were all this three-justice panel needed to rule that the organizing campaign went far beyond permissible activity regarding wages, hours and working conditions and instead was focused on employees controlling what was put in the News-Press".
At the weekly Santa Barbara Independent, where several former News-Press employees have found refuge, the news contributed to a somber outlook in the news story December 19, but a much feistier opinion piece the day before by Melinda Burns, who was acknowledged by the News-Press as one of their best reporters for more than 20 years, before they fired her. Burns wrote in part:
Ignoring the facts on the ground, a panel of three arch-conservative judges in the Washington D.C. Circuit Court of Appeals invoked the First Amendment to rule that McCaw had every right to fire eight of us reporters in 2006 and 2007, on the heels of our vote to join the Teamsters, and that she could spy on and harass union supporters and cut their pay with impunity. In the judges' distorted view, we newsroom employees formed a union and launched a boycott of the paper in order to control the news content of the paper, in violation of McCaw's right to publish whatever she pleased.
Being "Arch-Conservative" Doesn't Prove You're Wrong
Of course characterizing the judges as "arch-conservative" is an ad hominem argument that doesn't prove they were wrong, or right. But the court does have a reputation for being the most politicized federal court. And the facts Burns cites are provocative.
- Judge Stephen Williams, 75, voted (alone) against the constitutionality of that section of the Voting Rights Act that requires states with a history of discrimination to get federal approval of changes in their voting laws.
- Judge Karen Henderson, 69, signed off on a court ruling that Muslim former prisoners in Guantanamo were "non-persons" who had no standing to sue their torturers.
- Judge David Sentelle, 70, voted to vacate the criminal convictions of Oliver North and John Poindexter in the Iran-Contra scandal. He also chose Ken Starr to be President Clinton's special prosecutor on Whitewater.
Attorney Floyd Abrams, 76, who has a strong reputation as a Constitutional scholar, especially on First Amendment questions, did not inticate that he had read the decision before he emailed Politico:
"Sounds right to me as a First Amendment matter. While it involves a publisher who has acted in a deeply offensive manner that may well have grievously compromised the editorial integrity of the paper, it rests upon the long-standing First Amendment proposition that the government --judges included -- may not interfere with the decision of a publisher about what to print. Some other democratic nations lean in a different direction. In Israel, for example, the journalists might well have won. But not here."
Just Ignoring Reality Doesn't Make It Go Away
That drew a prompt comment from attorney Ira (Buddy) Gottlieb who argued the case before the appeals court, on behalf of the Teamsters:
"Sorry, Mr.Abrams, the First Amendment is not a sword that allows a publisher to lash out against reporters who are trying to organize, and claim she feels threatened. The reporters in this case were trying to protect their own professional integrity, and advance the professional norms that are part and parcel of their terms and conditions of employment.
"The News-Press did not offer a shred of evidence showing that in committing its multiple unfair labor practices, including the discharge of eight union supporters, it was actually motivated by its belief that they were threatening to take editorial control. That was an after the fact defense, as the Board found".
"This court reached out for a reality that was not supported by the factual record, nor the applicable precedent, from the Supreme Court of the DC Circuit itself."
At this point it is not known whether the Labor Board will accept the appeals court decision, ask the full 8-member court to reconsider it, or appeal the case to the Supreme Court.
Still Ahead, Possibly More Thrills And Chills
No matter what happens with this case, the legal and other adventures of Wendy McCaw, the Santa Barbara News-Press, and those involved with them are not yet over. Among the unresolved matters still pending:
Ã˜ In September, a Labor Board with a completely different panel found the News-Press in violation of labor law again, issuing unlawful subpoenas in 2009, and issued an injunction against the paper "interfering with, restraining, or coercing employees in the exercise of their rights" guaranteed by labor law. On November 30, the Board denied the News-Press's motion for reconsideration "as lacking merit."
Ã˜ As of August, Wendy McCaw owed former editor Jerry Roberts about $1.1 million, the result of her having sued him and lost in arbitration in 2009.
Ã˜ As of last June, Wendy McCaw's former attorney, Barry Cappello was suing her for more than $400,000 in unpaid legal bills and damages.
In 2011, the Santa Barbara News-Press had daily circulation of about 26,000, down from more than 45,000 in 2000, when Wendy McCaw bought the paper for $100 million or so. The paper's website now has a paywall. In December 2012, the News-Press staff directory listed 26 employees, including the two co-publishers. According to Melinda Burns, at least 70 employees have gone (or come and gone) from the News-Press since 2006.
On Decenber 13, a few days before the court ruled, Barney Brantingham , formerly of the News-Press, ended his column in the Independent with this slightly prophetic item:
"KUSTER OUSTED: After 41 years at the Santa Barbara News-Press, circulation manager Steve Kuster just got a shock: You're outta here. A hard-working guy I've known for years who's handled many tasks at the newspaper's printing plant in Goleta, Kuster is an apparent victim of the struggling paper's belt-tightening. His job is being combined with that of another manager, sources tell me.
"Kuster kept a low profile during the recent chaotic years there of plummeting circulation amid a lean advertising climate, but that didn't help. Veteran employees seem to be an endangered species. Meanwhile, fired News-Press newsroom union members are awaiting a decision from a Washington, D.C., circuit appeals court. (Do not expect a Christmas miracle, folks.)"
Although the line is sometimes mis-attributed to H.L. Mencken, it was in the New Yorker in May 1960 that A.J. Liebling observed that: "Freedom of the press is guaranteed only to those who own one."