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Appeals court sides with News-Press : Majority: 1st Amendment rights in jeopardy if paper forced to reinstate workers

January 27, 2010 7:21 AM


Appeals court sides with News-Press : Majority: 1st Amendment rights in jeopardy if paper forced to reinstate workers Forcing the News-Press to reinstate employees discharged for union activity aimed at pressuring management to give up editorial control over news reporting is a violation of the publisher's First Amendment rights, the U.S. 9th Circuit Court of Appeals ruled Tuesday.

James McDermott, regional director for the National Labor Relations Board in Los Angeles, brought the appeal after U.S. District Court Judge Steven V. Wilson ruled that granting an injunction forcing reinstatement of the eight employees posed significant risk of infringing the constitutional rights of Ampersand Publishing LLC and owner and co-publisher Wendy McCaw.

Tuesday's 2-1 majority opinion by Circuit Court Judge Richard R. Clifton and Milan D. Smith Jr., could have implications for other publishers.

"The First Amendment protects the right of a newspaper to control its content," Judge Clifton wrote. "The main thrust of the employees' campaign to secure representation by the Graphic Communications Conference, International Brotherhood of Teamsters appears to have been to block or limit the influence of the owner and publisher of the News-Press over the content of the news sections of the paper and to focus that authority in the employees themselves, as reporters and editors."

The newspaper asserted in briefs, during NLRB hearings and before Judge Wilson that a union campaign began with newsroom employees' desire to control the content of the paper -- a violation of Ampersand's constitutional rights, according to A. Barry Cappello, managing partner of Cappello & Noel LLP and an attorney for the paper.

Among the district court's findings was that employee demands "were not mere requests but were instead backed by public concerted activity placing economic pressure on (the paper) to acquiesce."

According to Judge Wilson, "the sought-after injunction amounts to state action limiting (Ampersand's) ability to combat pressure placed on it to limit its exercise of editorial discretion."

The appeal was argued in March 2009 in Pasadena.

Making the point for the union's content-specific demands was, among others, Melinda Burns, a lead union organizer, who said at an earlier hearing, "The news side (of a paper) has to have the independence and freedom to report the news, gather the news. . .and not to be pressured by the publisher to report it or gather it in a certain way."

According to the Clifton opinion, an employee-backed subscription cancellation drive "was also tied to the employees' desire for editorial independence from management."

"Pledge cards specifically asked recipients to support the 'newsroom staff in its effort to restore journalistic integrity to the paper' by cancelling their subscriptions," Judge Clifton wrote.

"This history persuades us that the employee-initiated union campaign aspired in large part to compel the publisher of the News-Press to relinquish to the newsroom staff editorial control over the reporting of the news, which lies at the core of a newspaper's First Amendment rights."

Mrs. McCaw and co-publisher Arthur von Wiesenberger told the paper Tuesday, "We applaud the 9th Circuit Court of Appeals upholding a newspaper's most fundamental constitutional right."

Added Mr. Cappello, whose firm was assisted in the appeal by The Zinser Law Firm, of Nashville, Tenn., and O'Melveny and Myers, of Los Angeles: "Mrs. McCaw has had to defend herself from some of the most scurrilous charges by a union bent on destroying her investment. Our initial analysis was that the right to a free press is a right of the owner of the publication, not the employees. For the Teamsters union and the ex-News-Press employees to assert anything else went against established U.S. Supreme Court cases."

"This federal appeals court simply followed the law of the land, something the NLRB and the Teamster employees ignored," Mr. Cappello added. "It was just a matter of time and some decent lawyering that produced the result vindicating the News-Press and Mrs. McCaw."

Mr. McDermott could seek further review by the entire 9th Circuit Court of Appeals.

Ira Gottlieb, an attorney for the union and the discharged employees, said by phone Tuesday, "This is a bad day for us."

He told the News-Press a more detailed comment would be forthcoming by e-mail, but as of press time, he had not provided any additional comment.

The News-Press was joined in its case before the appeals court by media companies controlling more than 100 U.S. newspapers, from the Santa Maria Times to the Las Vegas Review-Journal to USA Today, who filed friends of the court briefs opposing the NLRB's appeal. Similar briefs were also filed by the Newspaper Association of America, which supports newspapers' interests in First Amendment issues.

Those briefs included court transcripts that the media companies say show repeated occasions throughout the union organizing campaign in which the employees were not concerned about money issues, but, rather, sought to take control from the owner and publisher with the goal of writing what they wanted, when they wanted.

An arm of the Teamsters union was certified as the employees' representative on Aug. 16, 2007. A trial before an administrative law judge concluded later that year, and on Dec. 31, 2007, the judge issued his recommendation to reinstate the employees.

Mr. McDermott sought immediate reinstatement, but Ampersand took its case to federal court, arguing that the administrative law judge was wrong to discount the effects the recommendation would have on the publisher's First Amendment rights.

The dissent filed Tuesday by Michael Daly Hawkins states that the proposed injunction poses no significant risk of infringing the First Amendment because it does not directly "require the paper to change its editorial policy" or "dictat[e] what a newspaper must publish."

Judges Clifton and Smith disagree.

"We think that approach closes its eyes to what the underlying labor dispute here is about: the ability of the newspaper owner and publisher to exercise control over the news pages of the News-Press."

"Telling the newspaper that it must hire specified persons, namely the discharged employees, as editors and reporters constituting over 20 percent of its newsroom staff is bound to affect what gets published."

The majority opinion also rebuffs another dissent notion -- that the paper's First Amendment rights would not be unaffected by the proposed reinstatement "because the newspaper would be free to operate as it did before, without change."

This, according to the majority, "assumes that the union's efforts to effect a change will fail."

"There would be no point to requesting or ordering (the injunction) unless it was expected to have an impact," according to the majority. "The proposed injunction is aimed at strengthening the union's hand against the owner, and that will impair the owner's right to control the newspaper's content."



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