Publish—or Else

A new twist on subverting the First Amendment

It happened on a late spring day in a large city in 1983. There were no headlines—one government agency already routinely required publishers to secure a printing license and shut down those who were not given one; no one seemed to notice when another agency ordered a publisher what to print every week.

The city was Washington, not Warsaw. The senior government official responsible was named Jenkins, not Jaruzelski. And the government agency was the National Labor Relations Board, which on May 31, 1983, ordered the Herald News of Passaic, New Jersey, to publish a union activist's weekly column of opinion and commentary.

The sister agency whose heavy-handed approach the labor board emulated is the Securities and Exchange Commission (SEC), which was then in the midst of an unprecedented war to shut down all financial newsletters and magazines that had not obtained its permission to publish. It was a war that continued unabated until the Supreme Court called a halt in June 1985, telling the SEC that Congress had not intended the law in question (the Investment Advisors Act of 1940) to allow the agency to ignore the First Amendment. And it will probably take another Supreme Court decision to persuade the National Labor Relations Board (NLRB) that Congress has not given it leave to ignore the First Amendment, either.

When the Herald News appealed the NLRB's "publish this column" order to the circuit court, the court refused to enforce it. Specifically criticizing the NLRB's attempt "to become directly involved with the Company's exercise of editorial control and judgment," the court remanded the case to the board in June 1984 to provide a constitutionally acceptable remedy.

The NLRB, responding with the glacial alacrity known to labor lawyers everywhere, did not issue a supplemental decision until September 1985. In it, the board defied the court's directive to end its involvement with the newspaper's editorial control and judgment. With one hand, the board did the obvious and eliminated its offending order to publish the column in question. With the other hand, however, it stated that it would thereafter feel free to fully investigate any refusal by the newspaper to publish the union activist's opinions in order to determine whether his union sympathies played any role in that decision.

That the NLRB's decision would inhibit the Herald News's editorial judgment is beyond question. The newspaper's editors would think twice, three times, calculating the anticipated legal expense, before they turned down any column by the union activist. There is a legal phrase—"chilling effect"—that fully describes the result so obviously intended by the NLRB.

The NLRB's Herald News decision illustrates a mindset in independent regulatory agencies—intellectual blinders, if you will—that focuses on the legislation they were created to enforce to the exclusion of other, more important considerations. The Constitution. Due process. Freedom of speech. Freedom of the press. The SEC is a prime example. The Federal Communications Commission (FCC) is another. So is the NLRB.

All these agencies acknowledge, in vague and insubstantial ways, the constraints of the Constitution, if only to explain why it does not apply to them, why their agency is "special" and their law is "different," and why, after "balancing" constitutional rights against their enabling legislation, the Constitution invariably slides off the side of the scale. It calls to mind the words of Justice Brandeis that "experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent.…The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding."

Adding "arrogance" to that description aptly characterizes the NLRB both yesterday and today. As the self-anointed sole interpreter of what it and its employees refer to simply as "The Act" (the National Labor Relations Act, as amended), the NLRB has, over the course of its 50-year history, institutionalized its open contempt and disregard for contrary interpretations of the act by the various circuits of the US Court of Appeals. Ignoring Congress's intentions, the board routinely refuses to be bound by those court decisions in subsequent cases, even when they arise in the same circuits.

In the name of a "uniform" national labor policy, the board has, in fact, created two labor policies within each of the court's 12 geographic circuits—one for the rich and one for the poor or, in the felicitous phrase of current NLRB Chairman Donald Dotson (a vocal, albeit minority, critic of board policy on this point): "One policy for those who can afford a ticket to the Court of Appeals and another for those who cannot." Any labor lawyer, union or management, can give dozens of examples.

A government agency that successfully ignores the courts assigned to review its conduct is not likely to be influenced by defenses based on the constitutional guarantees of a free press. And in fact, the board's Herald News decision is not an aberration. It is the most recent in a trilogy of modern NLRB cases that demonstrate at best a lack of sensitivity and at worst a complete disregard for the First Amendment when it gets in the way of the board's interpretation of The Act.

In 1972 the Wichita Eagle had prohibited one of its editorial writers, Dorothy Wood, from writing about union affairs because she was a member of the union negotiating committee. Later that year, Wood also assumed a leadership role in a local feminist political group. In the paper's opinion, this put another area "off limits" for Wood's editorial writing. As a result, Wood was transferred, at no loss in pay, to the position of editor of the Sunday Magazine. The former Sunday Magazine editor, a nonunion member, moved into the slot on the editorial board created by Wood's transfer.

The NLRB held that Wood's transfer was a "demotion" (despite the absence of a pay cut), because her new job as editor of the Sunday Magazine did not involve what the NLRB termed "creative writing." Keeping a green eyeshade firmly on its brow, the board then took a red pencil to a rejected Wood editorial on a school union dispute, analyzed it in detail, compared it favorably with another editorial on the same subject that was published in its place, and declared that, in its editorial judgment, Wood was without bias when writing on labor matters.

The NLRB openly acknowledged that "the editorials of the newspaper function as the voice of ownership and management. What appears in an editorial is the subjective viewpoint of management." But the board's reply to this was, in effect, So what? The board ordered the paper to remove the nonunion employee from its editorial board and replace him with Wood. The NLRB also made it clear that the paper could no longer ban Wood from writing on labor matters, since it had evaluated her writing and found it to be bias-free.

On appeal, the Court of Appeals for the Tenth Circuit did not let the board get away with this. It refused to enforce the NLRB's decision, holding that it infringed on the paper's First Amendment freedom "to determine the content of its editorial voice in an atmosphere of free discussion and exchange of ideas."

The NLRB was unchastened by its defeat. Its response was typical when confronted with a court decision it doesn't like—it ignored the decision. Before the decade was out, an NLRB administrative law judge went beyond the board's discredited Wichita Eagle decision and ordered Minnesota television station KBJR to commence broadcasting a daily 30-minute 6:00 P.M. local news broadcast. Over a year earlier, faced with low ratings, the station had replaced the local news with a national news program at 6:00 P.M. and a 5-minute local summary at 5:55.

The NLRB judge, William Jacobs, found that one of the reasons the station canceled the 6:00 P.M. local news was that its employees had voted to be represented by a union. Placing himself squarely behind the station manager's desk, Judge Jacobs decided that, although dead-last in the ratings, the news show had improved in its last year of operation and had demonstrated sufficient economic viability to deserve another chance. Determined to give it that chance, Jacobs lifted his frame from that station manager's chair, moved down the hall to the news room, booted the news director out of his chair, and decided that the people of Duluth no longer needed to see the national news at 6:00 P.M. anyway:

One cannot presume that a report of a traffic accident on Main Street in Duluth…and a discussion of Sino-Soviet relations as interpreted by David Brinkley are arguably fungible. Yet I see no hardship in reinstating the local 6:00 P.M. news as it was on this ground either, for if network news has proven successful, both programs could be aired seriatim as is done in most major cities.

Judge Jacobs did not give even passing consideration to the propriety, under the First Amendment, of the government compelling a television station to broadcast daily a certain program, at a certain time, using certain people.

When it reviewed Judge Jacobs's decision, the board gave him a pat on the back and the First Amendment the back of its hand. Led by board member Howard Jenkins—the same career government bureaucrat who was to order the Herald News what to publish every week—the NLRB summarily rejected the station's claim that the board had no power to order the disputed broadcast reinstated. The board reasoned that KBJR-TV had no First Amendment rights in the matter. After all, its earlier decision to substitute national news for local news was not based on "First Amendment grounds" (a phrase left unexplained by the board) but instead was done for "business reasons."

With precedents such as the Wichita Eagle and KBJR under its belt, it's no wonder the Herald News of Passaic, New Jersey, was told by the board in 1983 that the First Amendment is just another amendment and not nearly as important as The Act. When the case was initially presented to the administrative law judge, the board's lawyer barely bothered to nod to the free-press issue, citing the KBJR case as defense enough of the board's position.

Mitchell Stoddard had been, since 1967, a staff reporter for the Herald News. In addition to his reporting duties, he wrote a weekly Sunday column, intentionally controversial, expressing his personal opinions on matters of interest to him. When union organization activities commenced at the Herald News in late 1978, Stoddard was night editor. In June 1979, having expressed a desire to go back to writing and reporting, Stoddard was named bureau chief of the paper's Morris County office. Stoddard continued, during this period, to write his weekly Sunday column, once described by Stoddard himself as the most outspoken and controversial column published in the paper.

Between May 1979 and August 1980, three bitterly contested union elections were held among the Herald News editorial employees. The union did not receive a majority of votes cast until the third election. Stoddard himself was never identified publicly as a union supporter until late July 1980, when his name appeared, along with 11 other employees', on union leaflets. Stoddard claimed at the time that his name was used without his consent but later acknowledged that he had urged other employees to support the union.

After the union won the third election, the head of the paper's editorial page decided to stop publication of Stoddard's column. His pay was not cut and the paper continued to publish news stories with his by-line. Other reporters, however, continued to have their columns published and, on no more evidence than this, the board held that Stoddard had been "demoted." Its remedy was to order the paper to resume weekly publication of Stoddard's column.

When the case reached the Court of Appeals, the board's lawyers were apparently too embarrassed even to cite the KBJR-TV case as authority for its extraordinary order to publish Stoddard's opinion column every week. Indeed, its lawyers were unable to cite any case in which a court had ordered a newspaper to publish anything dictated by a government agency, let alone columns of opinion. The most its lawyers could muster was a weak "if this goes on…" kind of argument about the potential license of an unbridled free press:

The immunity that the Company demands would license a potent form of discrimination against reporters, on the basis of race, religion, or sex, as well as union activity.…If the Company's position were accepted, the president of the Screen Actors Guild could be told that because of his union activity he would be given only supporting roles in the future and would never again play the lead.

This passage clearly reveals the board's myopia. Does the board seriously believe it has authority to investigate situations comparable to whether Ed Asner's union activism played a role in the CBS cancellation of Lou Grant or whether Ronald Reagan's Screen Actors Guild presidency cost him the chance to move up from "B" to "A" movies?

Moreover, what "potent form" of discrimination is the board talking about? Stoddard still had the same job at the same rate of pay, and his by-lined news stories were still published. Only his weekly opinion columns were not published. And the reason why, whether it be race, religion, sex, union activity, politics, or bad grammar—or the absence of any of these—is properly none of the government's business.

In reversing the board, the Court of Appeals for the District of Columbia agreed with the civil-libertarian stance on the First Amendment, holding, as the Supreme Court has consistently held, that "newspapers have absolute discretion to determine the contents of their newspapers." In doing so, it relied heavily upon the Supreme Court's 1971 decision in Miami Herald Publishing Co. v. Tomillo, which struck down a Florida law requiring newspapers to publish replies from political candidates criticized by them:

The choice of material to go into a newspaper…constitute(s) the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.…The First Amendment erects a virtually insurmountable barrier between government and the print media so far as government tampering, in advance of publication, where news and editorial content is concerned.

The current board's response to the court's refusal to enforce its order is disappointing. The order had been initially issued in 1983 by the "Carter board," two of whose three members had been appointed by President Carter. By 1985, all five members of the board had been appointed by President Reagan. The Reagan board, often controversial, had prided itself on reversing and scaling back many of the excesses of the Carter board, which had blatantly tilted in favor of organized labor and against individual and employer rights. In this instance, however, the Reagan board demonstrated that, like its predecessors, Democrats and Republicans alike, it is more interested in institutional self-aggrandizement than in recognizing even minimal First Amendment restrictions on its power.

In refusing to enforce the board's order, the Court of Appeals singled out "two unfortunate consequences" in connection with the First Amendment: "First, it seeks to compel the Company to publish what it prefers to withhold; and second, it injects the Board into the editorial decision-making process on an ongoing basis."

But lawyers from the board's Newark, New Jersey, office urged the NLRB to pay lip service to the first "unfortunate" consequence and ignore the second. The board agreed. As a result, regional offices of the board have been given a new license to inject themselves into editorial decisionmaking on an ongoing basis whenever a reporter or editorial writer claims his work was not published because of his union activity.

This is an intolerable infringement on the rights of a free press, and unfortunately there will be no further appeal of the board's decision. According to the board's Newark office, Stoddard resigned from the paper in February 1985, rendering the controversy moot.

Even if the newspaper had been able to appeal and prevail before the Court of Appeals, however, the board would still present a clear and present danger to the First Amendment rights of the media. The reason? The board need not and probably would not have appealed such an adverse decision to the Supreme Court. Instead, it would have honored the decision only as it narrowly applied to the Herald News and Stoddard and simply ignored it in all other situations.

There are only two ways to stop the board's well-intentioned men and women of zeal from continuing, unabated, their "insidious encroachment" on the First Amendment. One is for the Supreme Court to put its foot down. That will not happen unless a Court of Appeals someday upholds the board's extreme view of its extraordinary power over the media, and the media employer successfully takes the case to the Supreme Court. Given the board's lack of success before the courts to date, such a possibility is remote. The other alternative is for the members of the NLRB and their general counsel to shake off their intellectual blinders and look beyond the narrow confines of the National Labor Relations Act, which celebrated its 50th anniversary last year, and acknowledge the supremacy of a document that next year celebrates its 200th—the US Constitution.

If the past is any guide, friends of a free press may be in for a long wait.

Contributing Editor Michael McMenamin is a trial lawyer in Cleveland, Ohio, who has represented clients before the National Labor Relations Board.