In America today, according to a federal appeals court, the free speech rights of an employer, in this case the Santa Barbara News-Press, allows the employer to trample the rights of employees.
That’s how the U.S. Court of Appeals for the District of Columbia Circuit has decided a California labor dispute, applying another court’s reasoning on pornography, not labor issues, and holding that somehow, by that pornographic logic, a long string of undisputed labor abuses were allowable under the First Amendment of the Constitution.
A three-judge panel heard the case in November, an appeal by the publisher of a daily newspaper, the Santa Barbara News-Press, seeking the reversal of a ruling by the National Labor Relations Board that found the newspaper had committed numerous, unfair labor practices violations. As a result, the Board had ordered the newspaper to make extensive remedies, including reinstating some of the employees (357 NLRB No. 51, 55 pages, August 11, 2011):Â
We agree with the [administrative law] judge that a broad cease-and-desist order is warranted because the Respondent “has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees’ fundamental statutory rights.”
The three-judge appeals court issued its 14-page decision on December 18, vacating the decision against the publisher and denying any enforcement by the Labor Board and any relief to the harmed employees. The court ruled without addressing the facts of the case, as the opinion by Judge Stephen F. Williams, 75, put it, “without addressing the parties’ arguments regarding the details of the individual violations the Board found or the propriety of the remedy imposed”Â (No. 11-1284).
In other words, the court wasn’t denying that the publisher acted unlawfully, or that the Labor Board hadn’t proposed appropriate remedies – the court was just saying, by analogy to the logic of pornography cases, that the First Amendment protected the publisher’s behavior, deprived the Labor Board of authority, and denied the employees any redress under the law.
Core Issue Not Union Busting But Union Prevention
In 2006, employees of the Santa Barbara News-Press voted 33-6 to form a union and the owner rejected the idea. The parties have persisted for more that six years, through numerous Labor Board and various court hearings based on at least 14 separate complaints of unfair labor practices and other illegal behavior, with most tribunals affirming that the owner was guilty as charged. The current U.S. Court of Appeals decision does not dispute the facts or the guilt determined in other proceedings – it just says they don’t matter to the law.
The backstory of this case begins around 1855, with the founding of the Santa Barbara newspaper that eventually became the News-Press, which hummed along for almost a century and a half as the only daily in a city that grew to about 90,000 people before starting to lose population in the 2010 census. Â Â The New York Times bought the paper in 1984 and ran it till 2000, when it sold for $100-150 million (accounts differ).
The buyer and current owner is Wendy Petrak McCaw, 61, the multi-millionaire ex-wife of cellular phone billionaire Craig McCaw, 63, of Seattle. Â They met as Stanford undergraduates. On her official website, where she is still blonde, Wendy McCaw appears with a picture of Hollywood’s Michael Douglas and notes that she won the Michael Douglas Philanthropist of the Year Award in 2004, calling herself “a staunch defender of wildlife preservation and animal welfare” who also has a “commitment to the restoration and preservation of historic architecture.”
The first five years of her ownership of the News-Press were reportedly often tense between her and the 50 or so newsroom staffers, foreshadowing the turmoil to come. In 2005, the Humane Society of the United States even gave her an “Outstanding Newspaper Editorials” for her “unrivalled collection of 44 insightful, timely and reasoned editorials, exploring an array of significant animal issues in need of public attention and effecting change in the process.”
Under Professional Leadership, The Newsroom Stabilized
During that period (2002-2006), after McCaw hired Jerry Roberts as editor, promising he could “run the newsroom the way he wanted.” Â The News-Press became what many, including Roberts, recall as special and wonderful place to work. Roberts had worked for 25 years at the San Francisco Chronicle and left in 2002 only after life under new owners had become “exhausting and difficult.”Â At the News-Press, McCaw failed to keep her promise and by mid-2004 she had stopped speaking to Roberts, but he still managed to keep the paper functional, profitable, and award-winning (especially from the California Newspaper Publishers Association) through 2005.
In 2006, the News-Press imploded, eventually making international news. The beginning of trouble that spring is hard to pinpoint, but a message from the owner to then-publisher Joe Cole on April 8, as quoted in the administrative law judge’s Â recommended decision to the Labor Board (p.15), is a harbinger of sorts, since it started with McCaw writing, “I am extremely frustrated that my goals for the paper are not being achieved, in fact I feel they have been actively thwarted.”
The message listed 21 items that McCaw considered continuing problems at the paper, starting with “’Us’ vs ‘Them’ mentality.”Â Then she told Cole, “you have done nothing to stop it. This will stop IMMEDIATELY even if it means firing the whole newsroom and hiring new people. This has nothing to do with the purported wall between news and editorial, it has everything to do with biting the hand that feeds you.”
The Owner’s Unhappiness Was Unassuageable
McCaw also complained about “biased reporting,” especially by a reporter covering environmental issues that McCaw was personally invested in. McCaw had made the same accusation against the previous environmental reporter. Again she accused publisher Cole of doing nothing about it. Â (In 2004, referring to an environmental story about coyotes, the owner had objected to the coverage, complaining that the editor hadn’t contacted her about the story: “ I wasn’t quoted, nor was I even asked — so something is really wrong out there.”)Â Concluding her 2006 message, McCaw wrote:
“I shouldn’t have to remind you or anyone else at the paperÂ what my goals are, and it would be a waste of time anyway, since they will undoubtedly continue to be ignored and worse thwarted. With that in mind, I am going to be making some major changes at the paper in the new [sic] future.”
Less than three weeks later, on April 26, Cole resigned as publisher. An attorney, he came to the paper with McCaw and served an earlier stint as publisher until mid-2002. The paper’s commitment to journalistic integrity was then a growing issue for at least 17 reporters, but the issue faded under Roberts’s leadership. Â Cole, 56, does not talk publicly about these issues. In his place as publisher, McCaw named herself and her boyfriend, Arthur von Wiesenberger, as co-publishers, at which time von Wiesenberger gave up his column as the paper’s restaurant critic.
On May 9, the paper’s editorial page editor, Travis Armstrong, was arrested for driving under the influence, and the paper covered the story on page A-3. The owner and co-publishers objected to the coverage and Armstrong refused to be interviewed. When the paper covered his sentencing hearing, the owner forced editor Roberts to kill the article before it could be published. Shortly after that, Roberts left on a long-planned vacation to Greece, and working conditions at the News-Press got worse.
News Suppression Becomes Official PolicyÂ
In late June, a reporter covered a planning commission hearing at which there was some objection to the plans of actor Rob Lowe, a personal friend of McCaw, to build a 14,260 square-foot house on an empty lot. Reporting the story on June 22, the paper followed its standard procedure of giving the address of the lot in question. The editorial page editor Armstrong had emailed the managing editor – but not the reporter — about Lowe’s concern about publishing the address, but it did not reach the reporter. Â Â That same day the paper’s director of human resources distributed a memo of new policy about “confidential information,” a memo that some in the newsroom took to be a gag order. And on June 23, for the first time since she’d bought the paper, McCaw issued letters of reprimand to four staffers for their part in the Lowe matter, even though no one had told them not to follow the paper’s standard procedure. The letters of reprimand announced a change of that procedure.
One of those reprimanded responded to McCaw in part:
“Including the address was intentional, appropriate andÂ even necessary for the best understanding of Â the story –Â even a casual reading of an edited Web version leaves one wondering why a story about a piece of property neglects to mention where that property might be.
Â “No one disputes that a newspaper’s owner and/or publisherÂ has the absolute right to make and enforce whateverÂ policies they feel are appropriate. . . . But to punish hardworking people doing the right thing whose “violation”Â occurred ex post facto borders on the malicious and defamatory.”Â [emphasis added]
On July 3, the co-publishers McCaw and von Wiesenberger went on vacation, a Mediterranean cruise on her 193-foot yacht, carrying a crew of 14 and a helicopter. As acting publisher in their absence they appointed editorial page editor Armstrong, whose drunk driving conviction had proved so divisive within the paper just weeks earlier, when the owner ordered the suppression of the news of his sentencing.
Senior Editors Leave Newsroom Staff Undefended
Shortly thereafter the resignations began. Roberts was among the first, returning from vacation on July 6 and finding himself reporting to Armstrong, he tendered his 30-day notice only to be escorted off the premises without time to gather his stuff (later delivered by truck to his house). Â Â Within two weeks, fourteen people, mostly senior editors, but also a man who had been a columnist for 46 years, all gave notice, whereupon Armstrong also had them peremptorily removed from the premises. Â A month later, the Society of Professional Journalists at their annual meeting in Chicago presented an Ethics in Journalism Award to nine of those who had left the News-Press on principle.
This mass exodus from a respected daily newspaper drew international coverage from mainstream media (including the Los Angeles Times and Washington Post), as well as all the available social media. The American Journalism Review ran a long summary piece in its year-end issue, rich with detail gathered by Susan Paterno in “Santa Barbara Smackdown.”Â Â Almost predictably, McCaw sued Paterno for defamation, calling the article a “biased, false and misleading diatribe” and setting off more coverage and a blogger splurge). Â Commenting on the suit in Columbia Journalism Review, Mike Hoyt wrote:
“McCaw called [Paterno’s] piece a ‘biased, false and misleading diatribe.’ That’s odd, because it read to us as an example of the kind of solid journalism criticism that the American Journalism ReviewÂ is known for at its best, the kind of analysis and reporting that would be sorely missed if the magazine disappeared.
Nevertheless it took almost two almost two years for Paterno to win in court. McCaw initially claimed 33 allegedly defamatory passages in Paterno’s story. The trial judge threw out 29 of the passages. On appeal, the California Court of Appeal ruled that the other four passages were not defamatory and sent the case back to the trial court, which dismissed it on September 24, 2008.
At the same time McCaw was suing Paterno, she was also threatening to sue a local Santa Barbara business for displaying a pro-union sign reading “McCaw Obey The Law,” a reference to the accumulating charges of violations of the National Labor Relations Act.
Employees Seek Protection from the Teamsters Union
Concurrently with the exodus in July, the remaining newsroom employees started exploring the possibility of organizing into a union. On July 6, about 30 of them met with a union rep and an attorney from the Teamsters. Â A week later, employees presented a letter to Armstrong, addressing “the intolerable conditions at the newspaper we love.”Â The employees said they “respectfully request” that the acting publisher restore journalism ethics to the paper, invite six of the editors to return, negotiate a contract with newsroom employees, and recognize the union “as our exclusive bargaining unit.”Â Â These requests, which the News-Press refused to discuss, became (with the later exception of the editors’ return) the employees’ “demands” – referred to as such in their own public handouts, court papers, and media accounts.
During the summer, the employees took their struggle to the public, with hundreds of people sometimes attending rallies. At the same time, McCaw and her subordinates took actions that would eventually be found to be illegal, unfair labor practices – including threats of lawsuits, intimidation, and firings. On August 10, the union filed with the National Labor Relations Board to represent a unit of news department employees. Despite the continued opposition of McCaw and her subordinates, on September 27, 2006, the newsroom employees voted 33-6 to join the union, which the Labor Board certified almost a year later, over the News-Press’s continuing objections. Â By then the News-Press had fired many of the leaders among the newsroom employees.
On August 24, 2006, the union (formally: Graphic Communications Conference, International Brotherhood of Teamsters) filed their first unfair labor practice complaint (formally: Case 31-CA-27950) against McCaw’s newspaper (formally: Ampersand Publishing, LLP, d/b/a/ Santa Barbara News-Press). Â Over time, this first complaint was consolidated with nine subsequent complaints against McCaw’s newspaper, which was found to have violated labor law in each instance.
More than six years later, the U.S. Court of Appeals has ruled, in effect, that the First Amendment of the Constitution makes it permissible for the publisher of a newspaper, in this case Wendy McCaw of the Santa Barbara News-Press, to violate the National Labor Relations Act in all the ways documented by the Labor Board just because the First Amendment says, in part:Â “Congress shall make no law”¦ abridging the freedom”¦ of the press”¦.”
There Is Little Doubt About Who Did What
The record in this case is large, but the facts are generally unambiguous. People on both sides did what they did and people on both sides claim they were justified in doing what they did and the evidence and analysis of their actions and motives has produced a record described by McCaw’s attorney in a request to expand the 50-page limit on his own filing in February 2008:Â
“[Administrative Law]Judge Kocol issued his 75-page decision on December 26, 2007. The News-Press obtained an extension of time to file exceptions to February 25, 2008. The enormity of this case is not only established by Judge Kocol’s lengthy decision, but also the facts that the hearing in this matter lasted for seventeen days, the transcript was approximately 3,500 pages long, and there were in excess of 350 exhibits introduced into evidence. In addition, the News-Press submitted a post-hearing brief of approximately 130 pages in length, the General Counsel’s post-hearing brief was approximately 200 pages, and the Union’s post-hearing brief was approximately 115 pages. The lengths of these briefs show the extent and complexity of the issues in the present case.”
The case is clearly extensive, in great part because the people involved are numerous, their behavior is repetitive, and the arguments about repetitive behavior by numerous peoples are inherently duplicative. The complexity derives primarily from the massiveness of the evidence.
The obligation of newspaper publishers to function within the limits of the National Labor Relations Act, particularly in matters of union organizing, has been settled law since 1937, when the U.S. Supreme Court decided Associated Press v. Labor Board (301Â U.S, 103) and held that the Labor Act did not abridge freedom of speech or freedom of the press, stating in part that:Â “The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.”Â [emphasis added]