Wednesday, December 19, 2012

First Amendment v. NLRA


The D.C. Circuit just issued a decision, Ampersand Publishing v. NLRB, which significantly limits the ability of newspaper and other media employees to engage in collective activity.  The new owner and publisher of the Santa Barbara News-Press began exerting more control over the paper's reporting, among other things.  The reporters began protesting in a variety of ways, including pushing for a consumer boycott of the paper and seeking to unionize.  As part of their protest, the reporters delivered four demands to the paper:  "1. Restore journalism ethics to the Santa Barbara News-Press: implement and maintain a clear separation between the opinion/business side of the paper and the news-gathering side.  2. Invite back the six newsroom editors who recently resigned . . . . 3. Negotiate a contract with the newsroom employees governing our hours, wages, benefits and working conditions. 4. Recognize the [union] as our exclusive bargaining representative."  The paper responded to these activities by, among other things, firing several pro-union employees; the stated reasons included biased reporting and participation in a public rally against the paper.  The Board found that these terminations were unfair labor practices, in addition to other retaliatory acts.

Normally, this case would be a no-brainer.  But, the First Amendment's protection of the press gives newspaper publishers (not reporters) additional protection against government regulation.  The Board did not dispute this basic principle, but found that the employees were objecting to changes that affected their professional norms and day-to-day duties.  The D.C. Circuit disagreed, but this dispute isn't the main issue.  What's more important is the court's holding that even if the employees were engaged in both protected (e.g., seeking to unionize) and unprotected (e.g., seeking to change editorial content) activity, the First Amendment allows the employer to retaliate against the employees.  The court did not clarify what the limits of this decision is—that is, how much editorial control must be wrapped up with the employees' activities to render them unprotected.  The court stressed that editorial control was the "main" issue in the case and also cited pornography cases that suggested the need for a nexus between pornography and socially redeeming speech, stressing that merely throwing a wage request into an unprotected protest isn't enough.  This leaves unions or employees—to the extent they have any idea about this—without much guidance on how they can engage in collective activity against their media employers.  That, in turn, gives employers a potential free reign to retaliate against collective activity if it touches too close to editorial control.

Hat Tip:  Dennis Walsh

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The deep, broad irony of the decision is that what it in essence protects is the "right" of corporate news entities not to produce news, which I doubt is what the founders had in mind. The editorial "content" is the weird anti-content that has become the stock-in-trade of newspapers. Neil Young once wrote, "Everyone knows this is nowhere." Well everyone knows this is not news - including employees who thought they had been hired as news reporters or editors. They were wrong, and they are not allowed to complain about it. The beat goes on. More employer speech; less employee speech. To return to the narrow conversation, the decision does not surprise me all that much: the newspaper barks "First Amendment" and, as Jeff notes, the court accepts without exploring (or probably even thinking much about) the implications of what it is saying. The case was to me a Jefferson Standard reprise: no matter how much your news organization sucks you can NEVER say it. Just complain about your crappy pay (I'd be hesitant to complain about my performance evaluation - see Sacramento Bee). Narrow, narrow, narrow - squeak, squeak, squeak. No wonder I don't read the newspapers anymore for truly bold reporting.

Posted by: Michael Duff | Dec 20, 2012 6:56:22 AM

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