Thursday, December 20, 2012

D.C. Circuit: NLRB Ruling Against Newspaper Violates First Amendment

A three-judge panel of the D.C. Circuit ruled this week in Ampersand Publishing, LLC v. NLRB that the National Labor Relations Board violated free speech when it ruled that the Santa-Barbara News-Press newspaper (published by Ampersand) violated the NLRA for sanctioning employees for the alleged bias in their articles.

The ruling is a reminder that free speech belongs to the publisher, not the reporters, when a publisher and its employees clash in employment disputes over the content of the publication.

The case arose out of a long-running dispute between Ampersand Publishing and employees of its Santa-Barbara News-Press over the content and viewpoint of the newspaper.  The publisher took measures to correct what it viewed as a slant in newspaper reporting.  Employees balked, arguing that the publisher was tilting stories the other way.  Employees protested, repeatedly demanding that the publisher "restore journalism ethics" to the paper, and eventually demanded that the publisher recognize a union. 

The publisher fired nine union-supporting employees--two for allegedly biased reporting, one for refusing to fire allegedly biased reporters, and six for publicly protesting the paper.  The publisher also cancelled a union-supporter's column and gave four others lower evaluations than they received in the past.

The union filed a complaint against the publisher, and an ALJ found, and the NLRB affirmed, that each of these acts violated the NLRA.

The D.C. Circuit vacated that ruling, holding that it violated the publisher's free speech.  "Where enforcement of the [NLRA] would interfere with a newspaper publisher's 'absolute discretion to determine the contents of [its] newspaper[],' the statute must yield."  Op. at 8, quoting Passaic Daily News v. NLRB, 736 F.2d 1543, 1557-58 (D.C. Cir. 1984).  "The First Amendment affords a publisher--not a reporter--absolute authority to shape a newspaper's content."  Op. at 8.

The court said that employees couldn't get around this by claiming that the publisher punished them for their pro-union activities (and not only their allegedly biased stories).  For one, the court said that all their protests referenced the publisher's content- and viewpoint-based decisions (the publisher's protected by free speech), not its anti-union actions (not protected by free speech).  For another, the employees can't sidestep the First Amendment's protection of the publisher's decisions simply by adding an allegation that the publisher violated the NLRA.  "Here, of course, the First Amendment wholly favors protection of the employer's interest in editorial control, the main issue in dispute; it is hard to imagine that employees can prevail over that simply by adding 'a few verses' of wage demands."  Op. at 13, referencing Judge Friendly's opinion in U.S. v. A Motion Picture Film Entitled "I Am Curious-Yellow," 404 F.2d 196, 201 (2d Cir. 1968).


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