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Wednesday, February 22, 2023

Is Editorial Content "Workplace Conditions?"

I am not a labor and employment law expert. But as someone who writes frequently about journalism and press law issues, I am interested in a dispute that arose last week between the New York Times and a group of its contributors, and the intervention of the paper's News Guild chapter into that dispute. I have some views, but welcome input.  

Followers of culture-war issues will be aware that last week, a group of Times staffers and (sometimes nominal) contributors issued a public letter expressing "serious concerns about editorial bias in the newspaper’s reporting on transgender, non⁠-⁠binary, and gender nonconforming people." The letter focused primarily on two news stories to which it objected, and in passing on one other news story and one opinion column. It made no specific recommendations, other, perhaps, than suggesting that these stories departed from editorial guidelines in their treatment of sources. The Times responded with an internal statement that, inter alia, asserted that staffers "participating in such a campaign is against the letter and spirit of our ethics policy," which "prohibits our journalists from aligning themselves with advocacy groups and joining protest actions on matters of public policy" and from "attacking one another's journalism publicly or signaling their support for such attacks." (The reference to aligning with advocacy groups refers to a letter issued on the same day by GLAAD, which more directly attacked specific stories and authors and demanded that the Times "stop printing biased anti-trans stories." The Times letter writers stated subsequently, in an addendum to their initial letter, that the Times contributors' letter and the GLAAD statement are "very different documents," although it did note that the two statements' timing had been coordinated, and added some specificity to the earlier letter by adding that its complaint was one of "editorial bias" by the paper.)

Enter the News Guild, whose president posted a letter expressing its concerns about the Times's statement. It asserted that the initial letter "is, in part, critical of recent employment decisions and historic workplace conditions affecting LGBTQIA employees," asserted that "[e]mployees have a federally-protected right to engage in concerted activity to address workplace conditions," and reminded staffers of the Guild's willingness to represent them in such matters. Responding to views expressed by some staffers (as noted in the Semaphor story linked to at the beginning of this paragraph) that the Guild leadership should not have inserted itself into a "public protest that implicitly pitted it against some of the Times’ own union members," the Guild statement asserted that its actions here were appropriate reminders of employees' rights to "take collective action in response to their experience of a hostile and biased work environment" and to speak in concert about "workplace issues." "This is no different," the statement said, "than our advice to members regarding any concerted activity they may engage in regarding reproductive healthcare and access to abortions, for example." (Because writers write and capital-L "Letters" generate endless response Letters, while I was drafting this post a number of staffers responded to the Guild with a letter critical of its action, ie. "[W]e don’t accept [ ] what the Guild appears to be endorsing: A workplace in which any opinion or disagreement about Times coverage can be recast as a matter of “workplace conditions.”)

Leaving aside legal or professional questions about the extent to which staffers ought to be entitled to publicly criticize other staffers publicly for their work, I ask: Did the "New York Times Letter" constitute "concerted activity to address workplace conditions?" Even the Guild's message is somewhat squirrelly on this point, saying that it came "in response to [the staffer/contributors'] experience of a hostile and biased work environment" and that it involved "workplace issues," as opposed to workplace conditions. Reading the Times contributors' letter with reasonable generosity, one can say two things: 1) the letter addresses and alleges historical bias in the treatment of gay employees in the 1980s as well as bias in its coverage of AIDS issues during that era; and 2) seven words in passing at the end of the letter state that staffers at the Times "endur[e] a workplace made hostile by bias." (The letter also notes that a trans columnist for the paper did not have her contract renewed, but does not suggest the reasons for that were improper.)

Reading it fairly and in context, it is clear that the subject of the letter is specific editorial content to which the Times contributors object. The letter does not make any demands that that content cease, as the GLAAD letter does. (The argument that the Times letter was not coordinated with the GLAAD letter because they're "different documents," despite the concerted timing, strikes me as very weak, but that's neither here nor there for purposes of this post.) Nor does it suggest that the Times is deliberately staking out a discriminatory editorial position on trans issues; it notes that "[p]lenty of reporters at the Times cover trans issues fairly," leaving us with a complaint involving a three or four story numerator over an unspecified but large denominator. A natural reading of the letter is that it is a complaint over editorial content and not over workplace conditions. I decline to make the logical leap, which others have made, of arguing that the contributors' letter is asserting that stories to which one objects in the paper constitute a "workplace conditions" issue, on the logic that they are inherently harmful not only in their effect outside the newsroom but inside it as well. I decline to make a similar leap concerning the Guild's letter or its defense of its letter. Using debaters' logic, or any logic, to make a definitive statement about the actual communicative intent or motives of a speaker is a common but rather silly move given myriad problems with human communication and human nature. But if the Guild's letter does not suggest that editorial content in a newspaper constitutes a "workplace condition," then it either misdescribes the contributors' letter or means very little of anything at all.

Proper respect for the actual content of the contributors' letter demands that it be evaluated on its own merits and addressed for what it does say, I would think. What does not seem true or respectful to me is that it can fairly be read as expressing concern over workplace conditions. Nor does it seem to me that the NLRA can reasonably be read as suggesting that a complaint over particular stories in a newspaper can be read as a protected complaint about workplace conditions. I take those seven words at the end of the letter seriously; but I don't think they alter the fundamental content of the letter. 

As I said, I welcome input from those who are more schooled in labor and employment law. I will say that a brief search of federal court and National Labor Relations Board decisions did not yield any evidence that the Act is or should be read in this fashion. But a brief search is hardly a strong basis for a firm conclusion. I will say that in the context of a journalistic enterprise, it would be bad policy to suggest that complaints about particular stories constitute a statement about workplace conditions subject to protection under the NLRA. It would likewise be a stretch to suggest that a complaint by employees that a food company sells three products (out of an uncertain but large number of products) with unduly high sugar content is a complaint about workplace conditions; but in the context of journalism, allowing such a reading would have graver and more consequential effects. The Guild's attempt to analogize its action here to a statement about reproductive healthcare is a non-starter, unless it meant to suggest that complaints about coverage of reproductive healthcare can constitute a complaint about workplace conditions, which I do not think was what it meant. I prefer to think of most of these communications as consisting of null content outside of the core complaint about three stories and one column. But if the suggestion is indeed the more tendentious one that these stories were inherently harmful in a way that might be likened to the improper presence of toxic materials on a factory floor, it would be a bad and dangerous reading of labor and employment law in the context of a newspaper. But I don't know the field and would be interested to hear contrary arguments, or confirmation, on this point. 

It should not need to be said that my concerns here are about journalism and the effects of labor and employment law on the function of journalism as an institution, and are not a statement about trans issues, trans rights, or the specific stories objected to by the Times contributors who signed the letter. 

Posted by Paul Horwitz on February 22, 2023 at 09:14 AM in Paul Horwitz | Permalink


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