No Taking Back a Compliment

Last week the Michigan Court of Appeals dismissed a lawsuit in which the Michigan Education Association claimed the Mackinac Center, a free market think tank that has been at odds with the union on issues such as charter schools and education vouchers, had violated the privacy of MEA President Luigi Battaglieri by quoting him in a fund-raising letter. The court concluded that the letter "falls squarely within the protection of the First Amendment for discourse on matters of public interest."

At a press conference in September 2001, Battaglieri said of the Mackinac Center: "Quite frankly, I admire what they have done over the last couple of years entering into the field as they have and being pretty much the sole provider of research to the community, to the public, to our members, to legislators." After the Mackinac Center used part of the quote as evidence of its accomplishments in a message to donors, the MEA sued, arguing that the letter misleadingly implied that Battaglieri had endorsed the think tank. The appeals court rejected that claim. "It is highly unlikely," the judges noted, "that the recipients of the letter would conclude that Battaglieri was suddenly supportive of Mackinac's positions notwithstanding the longstanding, well-known and sharp differences of opinion between Mackinac and the MEA in the past. Further, the article itself belies such an interpretation by noting that Battaglieri's 'union is generally at odds with the Mackinac Center.'"

It's hard to understand why anyone at the MEA thought this lawsuit was a good idea. By trying unsuccessfully to use the legal system to punish one of its main critics, the union ends up looking thuggish and disrespectful of the First Amendment, while Battaglieri's praise of the Mackinac Center gets much more publicity than it otherwise would have. Does this sort of thing play well with teachers?

Comments

[jim]

The five dumbest people I ever met were/are teachers.

[alkali]

Does this sort of thing play well with teachers?

Actually, yes. Michigan teachers loathe the Mackinac Center, mostly by reason of its loose connection with long-sitting Republican governor John Engler. Engler is enemy number one among Michigan teachers largely because of some (pick one: financial shenanigans, prudent fiscal management) Engler undertook a few years ago in connection with the state teacher pension system.

Putting aside that feud for a second, it is arguable that the Center did cross the line by quoting the head of the teachers' union in a fundraising letter as apparently endorsing the organization, when a reader might not be fully aware of the circumstances. The Center used only the "frankly, I admire what they have done" part of the quote.

The decision itself is worth reading. I would guess that it is one of just a few decisions in which a so-called "false light" claim was thrown out on First Amendment grounds, so this was by no means a slam dunk for the Center -- indeed, the trial court ruled the other way.

[chuckrock]

Mr. Sullum,

You ask why the union would think that this suit is a good idea. I have an answer.

It seems to me that even if the lawsuit was dismissed, the union did force the Mackinac center to spend money on defending itself. The MEA has way more money than Mackinac

[mw]

Yes, Engler really did punish the MEA in ways that they'll have a hard time recovering from even now that he's gone. First of all, he made strikes by teachers almost impossible. Previously, teachers had, of course, not been paid during strikes, but because the state required a set number of instructional days, they always made up the losses (albeit at the expense of a shorter summer vacation after the school year). But Engler pushed through a law that *fined* teachers a day's pay for every strike day--so now they have to work the extra days just to pay off the fines.

That change could be reversed by a Democratic legislature and governor (though it's not likely -- who's going to take the political risk of pushing a bill that would make teacher strikes easier?), but the other change that *really* wacked the MEA wasn't obviously an anti-MEA bill at all and is close to untouchable. It doesn't make strikes impossible--just useless.

That was 'Proposal A' -- which created Michigan's new school financing system. Now, every district is funded by the state at a set amount (approx $7000 year per student) and local districts are forbidden by law to suplement the state allocation with more local taxes. So the local chapters of the MEA negotiate and sign contracts with local school boards, but those local boards no longer have any authority to turn to the local voters and request more taxes to pay teachers more. So what would be the point of a local MEA chapter striking--given that the school district can't raise any more money? There really isn't much of a point. Sure, they can try for a greater share of the district's pie, but strategy quickly hits the limits of what's feasible.

I'm not sure the MEA even realized what Engler was doing to them until well after he'd done it.

[Lawrence W. Reed]

The comments by "alkali" are appreciated but require a correction. The Mackinac Center did NOT use the quote in any way that suggested an endorsement of the Center by the MEA. As the Court noted, the Center cited the quote verbatim AND put it in context by pointing out in the SAME paragraph that the MEA was "generally at odds" with the Center. Please read the decision of the Court, as well as many other columns, editorials and news stories about this controversy, on our Web site, http://www.mackinac.org. Thanks! This was a GREAT victory for everyone who reveres the First Amendment. --- Lawrence Reed, President, Mackinac Center for Public Policy

[alkali]

That was 'Proposal A' -- which created Michigan's new school financing system. Now, every district is funded by the state at a set amount (approx $7000 year per student) and local districts are forbidden by law to suplement the state allocation with more local taxes.

I don't think that's accurate. Many school districts spend more; it was poorer districts that got extra funding, which is no skin off the teachers' nose.

[Lawrence W. Reed]

A couple other points to add to my comment above:

The trial court did NOT rule on the false light charge! All it did was reject the Mackinac Center's motion for summary judgment and fix a trial date. The Court of Appeals then intervened, granted us leave to appeal, and put a stay on the lower court process. When it dismissed the MEA's suit last week, it meant that the MEA's case was so utterly meritless that it was thrown out before it could ever even make it to trial.

The Institute for Justice deserves enormous credit for its good work on our case. They did it pro bono, so the MEA did NOT succeed in forcing the Mackinac Center to spend a lot of money in its defense. And the coverage the case has received from nationally syndicated columnists like George Will and Jeff Jacoby, as well as considerable favorable press within Michigan, means that the small amount of staff time it required was "paid back" many times over.

The message here: Call a press conference, prepare to be quoted.

The big question now is, as we have stated in the press, Will the MEA disclose to its members how much of their COMPULSORY dues were spent in this fruitless, frivolous effort to undermine the First Amendment? -- Lawrence Reed, Mackinac Center

[rst]

Does this sort of thing play well with teachers?

AFL-CIO is raising the union dues of members - republican, democrat, independent, whatever - specifically to unseat Bush. It would appear that pride and politics are generally far more important to union leaders than the rights or desires of its constituent members. It doesn't matter whether this sits well with teachers. What's important is that if your union's president says something that the remaining union leadership does not agree with, you have to do some manner of damage control even if it has no shot in hell. Long has the education industry been adept at doing something for the sake of being seen doing something even if it has no net effect. Lo, an empty lawsuit.

[Mitch]

A union looking thuggish? Why would MEA and other unions bother trying to avoid that at this late date?

[Clark Neily]

Alkali says ?I would guess that it is one of just a few decisions in which a so-called ?false light? claim was thrown out on First Amendment grounds.?

Not so. The requirement that public figures like the MEA and its president prove ?actual malice? (i.e., a subjective awareness on the part of the author that the statement in question was false) is indeed grounded in the First Amendment. Contrary to alkali?s suggestion, however, false light claims are routinely dismissed for failure to establish actual malice. Indeed, as documented in the Mackinac Center?s briefs, there is not a single reported case in Michigan in which a false light plaintiff has prevailed when the issue of actual malice was disputed. As the court of appeals noted in its opinion, the MEA?s assertion that the Mackinac Center intended to suggest that the MEA?s president ?endorsed? the substance of the Mackinac Center?s work was both totally implausible and totally unsupported by any evidence. As a result, dismissal of the MEA?s false light claim was, in fact, a ?slam dunk.?

[alkali]

Mr. Reed writes:

The Mackinac Center did NOT use the quote in any way that suggested an endorsement of the Center by the MEA. As the Court noted, the Center cited the quote verbatim AND put it in context by pointing out in the SAME paragraph that the MEA was "generally at odds" with the Center.

To be pedantic, the quote is not verbatim (although I agree that the change -- substituting "the Mackinac Center has" for "they've" -- is not distortive). Whether it is fully in context is arguable, although I agree that noting that the MEA was "generally at odds" with the Mackinac Center gets you 80% of the way there.

The Court of Appeals then intervened, granted us leave to appeal, and put a stay on the lower court process. When it dismissed the MEA's suit last week, it meant that the MEA's case was so utterly meritless that it was thrown out before it could ever even make it to trial.

That's a bit strong. The appellate court did not find that the MEA had no false light claim, but held that the First Amendment would bar the MEA from prosecuting that claim unless the MEA could show "malice," which it couldn't. It may or may not have been a good idea to bring the case, but it was hardly frivolous.

[Jake]

Doesn't the Institute for Justice do all of its cases pro bono?