Free Speech

"A Forced, Public Confession of Sins … Is a Humiliation … Incompatible with the … Democratic Principles of the Dignity of Man"

Words from Ruth Bader Ginsburg.

|The Volokh Conspiracy |

U.S. labor law provides that, if the National Labor Relations Board finds that an employer has violated labor law rules, the employer can be required to announce that finding to employees. And in some situations (apparently quite rarely), the NLRB has the power to order that the employer's president "personally read the NLRB's remedial notice to an assemblage of the company's employees."

In Conair Corp. v. NLRB (1983), then-Judge Ginsburg dissented, in a passage that (to my surprise) I hadn't seen until a few days ago; I thought it would pass it along:

The Board's order specifies that the Company's "owner and president, Rizzuto, … shall … read the [NLRB's notice ordering the employer to cease and desist from unfair labor practices] to current employees assembled for that purpose…." …. Here, the president's personal involvement was … conspicuous. His voice behind the Board's order might most authoritatively indicate to employees that Conair will comply with the directive.

Nonetheless, a reading order "directed at a specified individual" is a "startling innovation." Such an order would occasion no surprise in a system in which those who offend against state regulation must confess and repent as a means of self-correction, or to educate others. But it is foreign to our system to force named individuals to speak prescribed words to attain rehabilitation or to enlighten an assembled audience. The Board, I believe, has not thoughtfully considered this point.

A forced, public "confession of sins," even by an owner-president who has acted outrageously, is a humiliation this court once termed "incompatible with the democratic principles of the dignity of man." It has a punitive, vindictive quality, and is the kind of personal performance command equity decrees have avoided. See Restatement (Second) of Contracts § 367 (1979); Lumley v. Gye, 2 El. & Bl. 216, 118 Eng.Rep. 749 (Q.B.1853); cf. Lumley v. Wagner, 1 DeG., M. & G. 604, 42 Eng.Rep. 687 (Ch.1852) (acknowledging lack of authority to grant specific performance of defendant's concert singing obligations, court issued injunction preventing defendant from breaching covenant not to sing elsewhere).

Moreover, … a reading of the notice by the president may be less effective than a reading by another responsible officer. The former, humiliated and degraded by the personal specific performance order, may demonstrate "by inflections and facial expressions, his disagreement with the terms of the notice." The latter, assigned the task but lacking the same personal involvement, may perform it with less distaste, more detachment, and thus with greater credibility. I would not single out the president here, or any other named individual, hand him lines, and make him sing.

Judge Ginsburg was in dissent there, and her views did not persuade Judge Wald—or the third panel member, then-Judge Scalia. But my quick research that more recent decisions have largely agreed with her, and provided that any such order must allow either for the notice to be read by some other corporate officer, or, if the company so chooses, by an agent of the NLRB. Consider, for instance, this 2016 D.C. Circuit opinion by Judge Stephen Williams:

For those familiar with 20th century history, such an order conjures up the system of "criticism-self-criticism" devised by Stalin and adopted by Mao. "Criticism" generally took the form of an attack on the target by his or her peers at a meeting with fellow workers, spouting claims fed them by powerful members of the Communist party (on pain of themselves being tagged enemies of the people), and then regurgitated by the target ("self-criticism") in the hopes that full confession might avert dispatch to the gulag, torture or execution.

What is the subtext communicated by the sort of scene the Board would mandate? What is communicated to the assembled workers and the perpetrator himself? "You see before you one of your managers, who normally has a responsibility to make important choices as to your work. But who is he? Not merely is he a lawbreaker, but he is a pathetic creature who can be forced to spout lines some government officials have put in his mouth. He is not even a parrot, who can choose when to speak; he is a puppet who speaks on command words that he may well abominate. We have successfully turned him into a pathetic semblance of a human being." Of course, one may say, here it is just that the mighty have fallen; he was a lawbreaker. But fallen so low? Fallen to a condition that denies his autonomy? Cf. United States v. Gementera (9th Cir. 2004) (Hawkins, J., dissenting) (saying that the sole purpose of a sentence requiring a convicted mail thief to stand outside a post office for eight hours wearing a sandwich board stating, "I stole mail. This is my punishment" was "to turn him into a modern day Hester Prynne")….

Indeed, some judges express reservations about even the NLRB-reading option:

The General Counsel and Union argue that the option for a Board agent to conduct the reading alleviates any First Amendment problems. But like the Fifth Circuit, this option "does not assuage our concerns." The notice is phrased as if Sysco's employees are speaking the words (e.g., "We will not threaten you that a strike is inevitable …"). It requires named individuals—Shaeffer and Barnes, if still employed by Sysco—to stand at attention as human demonstratives in the employer's confession of sins. And it runs headlong into the Supreme Court's recognition that compelled speech violations extend to situations "where the complaining speaker's own message was affected by the speech it was forced to accommodate." Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (2006).

Now I don't want to overstate the influence of Ginsburg's argument here: Of course, the criminal justice, rightly or wrongly, routinely lowers defendants' sentences if they "accept responsibility" by publicly acknowledging that they were wrong. That's not strictly speaking a court-ordered "confession of sins," but it's very nearly that (since a defendant who declines to confess his sins that way will likely be given a materially longer sentence than one who does).

Also, as the citation to the Gementera dissent shows, some courts (such as the Gementera majority) allow even court-ordered public self-shaming; and of course the rules may be different when the government is acting as employer or as K-12 educator than when it's acting as sovereign. As with many forceful articulations of important principles, there are limits to how far the legal system (or even Justice Ginsburg herself) would follow that articulation. Still, the Ginsburg passage struck me as interesting and surprisingly little-known, so I thought I'd pass it along.

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  1. What? I suppose she would be opposed to bringing back stocks, pillories, and dunking chairs next.

  2. An interesting post that applies equally to the targets of various currently active “social justice” movements.

    1. Why do conservatives dislike social justice?

      Other than the bigotry, I mean.

      1. I mean your spot on. Conservatives don’t like bigotry, so an ideology like social justice which is nothing but bigotry doesn’t appeal to them.

      2. Why do leftists like Orwellian euphemisms so much?

        1. Other than dishonesty and love of tyranny, I mean.

  3. Very powerful stuff when you line it up with videos of Antifa and BLM agitators attempting to force diners to raise their fists.

    1. How do you feel about superstitious adults pushing millions of school children to mouth “under God” in the Pledge of Allegiance? What is — and was — your position on school prayer?

      1. As long as there are tests, there will be prayer in schools – – – – – – – – – –

      2. Rev., you deflect, you distract, and you dodge, just as Alinsky instructs all of his epigones.

    2. Very Antifa. Much Antifa. You can just smell the Antifa.

      1. No, a doge would definitely not go for that third item.

  4. Presumably in US defamation law unsuccessful defendants are also regularly ordered to print various retractions/apologies, as they are in other countries?

    1. Martinned: No — such orders are extremely rare, and I don’t know of any appellate case that has approved of any such order. Kramer v. Thompson (3d Cir. 1991) wrote, “Although the notion of compelled retraction occasionally has been advanced in the literature, we have not found a single case in which such a remedy has been awarded”; and that remains so today, to my knowledge (again, at least so long as one is talking about appellate cases — I have seen a few trial-level orders like that, but lots of weird things happen at the trial level).

      Many states do have statutes providing that a prompt retraction can cut off liability for presumed or punitive damages (leaving the defendant obligated to pay only proved compensatory damages). That certainly creates pressure to retract, though not to apologize. (Compare the “acceptance of responsibility” sentencing discounts that I mentioned, which do create a pressure to apologize.) But outright orders to apologize or even retract are generally not authorized.

      1. How about the court ordering a publication to print the court’s findings, or a court-ordered summary thereof? The publication does not have to say it agrees with it, just the court has ordered it to print the following, etc.

        Anyone every try that?

        1. Plausible idea, but to my knowledge not legally authorized in any jurisdiction.

          By the way, Justices Brennan and Rehnquist, concurring in Miami Herald Co. v. Tornillo (1974), mentioned the possibility of retraction orders — “I join the Court’s opinion which, as I understand it, addresses only ‘right of reply’ statutes and implies no view upon the constitutionality of ‘retraction’ statutes affording plaintiffs able to prove defamatory falsehoods a statutory action to require publication of a retraction.” Perhaps such a retraction statute would work best as a statute requiring publication of a summary of the libel judgment against the newspaper. But the proposal just hasn’t been taken up.

          1. Wasn’t publication of the court order a requirement of one of the decisions about a copyright troll case that you’ve been following over the past few years? Liebowitz if I remember correctly?

            But maybe that wasn’t an appellate decision. Since the offender was an attorney, would that count as a bar sanction and be treated differently than what you’re talking about here?

            1. No, not a publication. He had to file it with all the judges he was practicing before. It was indeed a sanction (though by the judge, not the bar).

              1. If the report here was correct, he is also required to publish it to all his clients.

  5. Very powerful stuff when you line it up with videos of Antifa and BLM agitators attempting to force diners to raise their fists. https://gramvi.com/

    1. Jeez, how many commenters here can’t distinguish between orders issued from a governmental authority and peer pressure from citizen groups?

      1. “Peer pressure?” I saw threats of violence, not “peer pressure,” and those threats were being carried out by strangers, not peers.

  6. Y’all are tracking the pretty universal condemnation even on the left of those yahoos trying to get those randos to show solidarity with them, yes?

    Prof. Volokh is pointing out a good principle, not giving you an invitation to go nutpicking.

  7. I like how putting someone in a cage and subjecting them to the arbitrary directions of low level government administrators for the most basic liberty and sustenance is not incompatible with the democratic principles of the dignity of man, but making them say words is. It’s okay to coerce someone into not only saying certain words, but using their own creativity and oratory ability to express a certain sentiment, with the most awful penalties, but certainly never to direct them explicitly to say those words.

    The DC Circuit opinion is especially instructive as to this mindset because it loudly states the assumption: managers and owners of companies are supposed to have power and control over others, and to reduce the appearance of their power over others creates a disruptive effect on the social fabric than just another petty criminal being thrown in jail. Compared to this threat that this carceral society might have one of its private jailers humiliated in even the smallest ways, people afflicted with this kind of ‘lawyer brain’ think that it’s far better to strip a man and put him in chains!

    Perhaps Judges Ginsburg and Williams would endorse these powers whole-heartedly if instead of simply allowing the NLRB to order the statement, there was a mandatory minimum prison sentence of ten years, mitigated to a dismissal if the manager expressed a statement about how they won’t violate the law again.

    In the end, little things like this utterly destroy the libertarian delusion of ‘human rights’, and instead evidence Nietzsche’s expression of what these so-called ‘rights’ really are – because we certainly know that if workers and poor people and minorities had significant political power in society, these labor violations would be criminal, rather than administrative, and face similarly severe punishments as morally turpitudinous crimes like shoplifting or vandalism.

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