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Thursday, March 11, 2010

The "Institutional" First Amendment

Here is the Ninth Circuit's decision in McDermott v. Ampersand Publishing.  The district court had ruled that "a significant risk of First Amendment violation" would arise if a newspaper was forced by the NLRB to reinstate employees that the newspaper had fired for certain union-related activities.  The Ninth Circuit agreed.  The court observed:

It is clear that the First Amendment erects a barrier against government interference with a newspaper’s exercise of editorial control over its content. . . .

The union organizing campaign arose in the wake of an xtended dispute between the News-Press management and newsroom employees regarding allegedly biased reporting and newspaper content. . . .

No matter how laudable the goals of the fired reporters in promoting the Union to, as the ALJ put it, “restore journalistic integrity,” the risk that granting an injunction will infringe the News-Press’s right to publish what it pleases is inescapable. . . .

This decision is intriguing to me, because it would seem to have interesting implications for the debate about the applicability of non-discrimination laws and other general employment regulations to religious institutions.  I would welcome others' thoughts -- especially our own Paul Horwitz's -- about the opinion's premises regarding the role and rights of newspapers.

Posted by Rick Garnett on March 11, 2010 at 10:42 AM in First Amendment | Permalink


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The opinion is dead wrong and shows once again that federal courts understand little about labor law.

Here is my extended post on this opinion at Workplace Prof Blog: http://bit.ly/9kQLHK.

Posted by: Paul Secunda | Mar 12, 2010 9:59:07 AM

This is in my view a deeply troubling opinion. The Ninth Circuit says that notwithstanding the NLRA a newspaper may fire employees for union activities if the union drive is based on discontent about the editorial content of the newspaper.

Notably, the NLBR didn't order the newspaper to publish anything or not publish anything; it only prevented them from firing the workers. The Ninth Circuit's decision appears to be contrary to Associated Press v. NLRB, 301 U.S. 103 (1937), which held that newspapers are not exempt from prohibitions on firing employees for union activities. The Ninth Circuit distinguished Associated Press on the ground that the union drive was concerned with editorial content, and relied instead on cases such as Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974), which held that newspapers are exempt from a statutory "right to reply."

I don't find that distinction persuasive. The point of Associate Press is not that enforcing generally applicable labor laws against newspapers will have no effect on content. Rather, the point is that the First Amendment does not protect newspapers from laws that are unrelated to expression -- *notwithstanding* the fact that enforcing these laws against newspapers *will* have some unintended impact on expression.

The newspaper is certainly entitled to fire its employees for refusing to follow its editorial policy or even for complaining about it. But that is not what happened -- in fact, employees complained for years before the union drive started, and were never fired. Furthermore, the newspaper may have a First Amendment right not to make editorial content subject to mandatory bargaining (the NLRB said that "journalistic integrity" *may* be subject to bargaining, but that editorial content was not). But a First Amendment right to fire workers for unionizing is going too far.

Posted by: AF | Mar 11, 2010 2:52:44 PM

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