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Media companies throw legal muscle behind News-Press - Briefs filed with 9th Circuit court say First Amendment rights of publisher outweigh lower ruling to force rehiring

November 2, 2008 07:55 AM

SCOTT STEEPLETON, NEWS-PRESS ASSOCIATE EDITOR

Media companies controlling more than 100 newspapers across America have filed briefs with the U.S. 9th Circuit Court of Appeals on behalf of Ampersand Publishing LLC over a key issue in the paper's ongoing dispute with several fired employees.

The briefs oppose the National Labor Relations Board's appeal of a federal judge's ruling that the Santa Barbara News-Press did not have to immediately rehire fired reporters the paper maintains used a Teamsters organizing campaign to wrest control of the newsroom from the publisher.

The parent companies of papers from the Lompoc Record to the Las Vegas Review-Journal to USA Today, filed so-called friends-of-the-court briefs dated Oct. 27.

The News-Press' position in the ongoing dispute was supported in briefs filed by Gannett Co. Inc., whose papers include the Arizona Republic, Palm Springs Desert Sun and USA Today; Lee Enterprises Inc., whose papers include the Santa Maria Times and Lompoc Record; MediaNews Group Inc., whose papers include the Los Angeles Daily News and Long Beach Press-Telegram; Stephens Media LLC, whose papers include the Hawaii Tribune-Herald and Las Vegas Review-Journal; and the Newspaper Association of America, whose core directives include supporting newspapers' interests in First Amendment issues.

The briefs were filed in response to an appeal by James McDermott, Los Angeles region director of the National Labor Relations Board, of a May order by U.S. District Court Judge Stephen Wilson denying an NLRB petition to immediately reinstate the employees following a recommendation by an administrative law judge that they should get their jobs back. Judge Wilson's order was based on his finding that the administrative law judge acted in an erroneous fashion when he ruled in favor of the union and said there were no First Amendment issues at stake regarding the discharges.

Judge Wilson held that the petition to reinstate posed a significant risk of violating the First Amendment rights of Ampersand.

For more than a year, the newspaper has asserted in briefs, during NLRB hearings and before Judge Wilson, that a campaign to unionize the newsroom dating to 2006 began with certain employees' desire to control the newspaper's content. His order stated: "In making this determination, the (administrative law judge) did not acknowledge that the union campaign was not simply making general demands to restore journalistic integrity, but making a specific demand related to the content of the News-Press."

The union was certified as the employees' representative on Aug. 16, 2007, a year after the campaign began. A trial before the administrative law judge concluded later that year, and the administrative law judge issued his recommendation to reinstate on New Year's Eve 2007.

Mr. McDermott sought immediate reinstatement of the employees, 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.

Judge Wilson called the NLRB's sought-after injunction "a state action limiting (the paper's) ability to combat pressure placed on it to limit its exercise of editorial discretion."

In their briefs, the media companies state: "A broadly defined freedom of the press is important. In order to protect it, publishers must have sufficient breathing space to act and react."

"The ALJ, and now the (NLRB), attempt to constrict the freedom enjoyed by newspapers across the country."

Included are examples, taken from court transcripts, of repeated occasions throughout the campaign that the companies say show that 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.

In its brief, the NAA states that publishers have no special immunity from labor laws, but "this case is not a typical labor case. In fact, it is not a labor case at all."

Labor cases, the brief states, involve disputes over working conditions, wages and hours.

"This appeal, on the other hand, represents an attempted hijacking of labor laws in an effort to strip a newspaper publisher of her constitutional prerogative to set the editorial tone and direction for the publication she owns and operates."

Wendy McCaw, News-Press co-publisher, said, "The Teamsters are attempting to abrogate the First Amendment, and we believe this is a battle that will be fought by newspapers across the nation."

"We've been at the forefront of this battle for the past 2 1/2 years, and I appreciate that colleagues in the industry have given us their encouragement and support," she said.

E-mail: ssteepleton@newspress.com

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