Publicly Criticize Discrimination Lawsuit Against You — Risk a Retaliation Lawsuit Based on Your Speech

That’s what Booth v. Pasco County (M.D. Fla. Oct. 28, 2011) concludes. Two fire department employees sued their employer for discrimination and harassment; they asked their union for help, but the union declined. The employees then filed an EEOC charge against the union for discrimination, to which the union responded by circulating to its members an “Update on Legal Issues” memo, which said, in part:

Local 4420 members Jerry Brown and Anthony Booth have filed a Charge claiming unspecified discrimination with the U.S. Equal Employment Opportunity Commission against the Union and the County. The Executive Board and our attorney feel it is a frivolous claim with no grounds for support and we are extremely confident in winning but will still have to defend the charges. This could be very costly and generate a legal bill of $10,000 or more. If it becomes too costly the Union may have to assess its member’s additional fees to offset the cost. We will update you as it progresses.

According to the employees,

[S]hortly after the Union distributed the Legal Updates Memo they became social pariahs. Inter alia, Plaintiffs contend that union members were no longer willing to swap shifts with them, that they were not welcome at many of the stations which they wished to transfer to, and that they were subjected to numerous instances of hostile and aggressive treatment by the angered union members. [Later, this is described by the court as “various aggressive, harassing, and even violent behavior from their fellow union members,” though without details. -EV] In short, Plaintiffs contend that the Legal Updates Memo caused significant detriment to both their careers and their lives.

They then sued the union not just for the alleged discrimination, but also for retaliation — the retaliation being the union’s speech criticizing their lawsuit. And the district court held that the union had no First Amendment right to speak out, so the retaliation claim against the union could proceed to trial:

[T]he Union alleges that its right to inform its union members of Union legal matters is protected speech; thus, it asserts that it had a protected right to inform its union members that: (1) Booth and Brown had filed EEOC charges against the Union; (2) that it believed such charges to be “frivolous;” and (3) that it might be required to raise union dues in order to properly defend against these actions.

The Court is not persuaded by this argument as “the regulation of discriminatory speech in the workplace constitutes nothing more than a time, place and manner regulation of speech.” Robinson v. Jacksonville Shipyards, Inc., 706 F.Supp. 1486, 1535 (M.D. Fla. 1991). Under the Constitution, a valid time, place and manner regulation “requires a legitimate governmental interest unrelated to the suppression of speech, content neutrality, and a tailoring of the means to accomplish this interest.” Id. As “the eradication of workplace discrimination … is a compelling governmental interest,” prohibiting discriminatory workplace speech does not present Constitutional problems. Id. Moreover, discriminatory speech is not protected speech as “potentially expressive activities that produce special harms distinct from their communicative impact … are entitled to no constitutional protection.” Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984).

This strikes me as quite wrong. People and organizations have a First Amendment right to speak out to publicly defend themselves against charges of wrongdoing, even when that could foreseeably lead to social ostracism of the accusers. (It’s conceivable that there could be some limit to that under Brandenburg v. Ohio, if the speech is intended to and likely to cause imminent illegal conduct; but the court does not require any such showing, contenting itself with a finding that it is “entirely foreseeable” that the memo “would provoke anger” and thus retaliation from fellow union members at some unspecified time in the future.) Imposing liability based on such speech is unconstitutional, for largely the same reasons I’ve given with regard to speech to the workplace at large that allegedly creates a “hostile work environment”; and the restriction can’t be defended as “content-neutral,” because it imposes liability based precisely on the harm that supposedly flows from what the speech says. (See Part I of this article for more.)

But while I think this is true as to all speakers who publicly defend themselves, it’s especially so for unions. Unions are self-governing institutions, funded by members and answerable to their members. If union leadership is accused of discrimination, union members need to know the leadership’s reaction, so they can decide whether they should remove the leadership. If the union is having to spend money, which comes from union members, the members deserve to know that. And if fellow union members are working against the interest of the union, union members likewise deserve to know that.

Indeed, such knowledge might lead to improper conduct on some members’ part. But a vast range of speech could lead some listeners to act improperly — whether by ostracizing fellow union members, ostracizing strike breakers, ostracizing fellow blacks who choose to shop at white-owned stores (see NAACP v. Claiborne Hardware Co. (1982)), attacking bankers, evading the draft, killing police officers, or what have you. The point of cases such as Brandenburg is precisely that speech can’t be restricted simply because of this risk, even when the foreseeable illegal conduct on the part of some listeners is much more serious than that alleged here.

A similar issue arose in the Widener Law School / Prof. Lawrence Connell matter, though that case also involved threats of litigation and the serving of subpoenas; this one involves simply speech by the union to its members. Likewise, both the Widener case and Bonnell v. Lorenzo (6th Cir. 2001), a similar retaliation-by-response case, at least involved restrictions imposed by employers controlling their own employees; such restrictions also raise problems, especially in the university context, but at least they do involve employers’ managerial control over their own programs by people who are paid by the employer.

Here, the potential liability would be imposed by the government acting as sovereign, with no special power stemming from its proprietary role — the zone in which the First Amendment protections should be the strongest. And yet according to the court, the union lacks the free speech right to publicly rebut the allegations against it, and publicly explain how and why union money is being spent.