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When it's free speech for journalists vs. free press for owners, law is less than settled

Newsrooms cautiously defy state law with policies that ban political activities after work

State labor code

1101. No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
1102. No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

After the San Francisco Chronicle unseated its letters editor last month for making campaign contributions to Democrats, critics suggested that the paper's crackdown on potential conflicts of interest was not only too harsh, but also illegal.

California labor laws appear to provide unequivocal free-speech protection to all off-duty employees. Yet prospects for a legal victory for journalists are uncertain, say employment lawyers and media scholars who follow the issue.

Many news organizations say they have the right to restrict the off-hours political activities of their workers -- and even their spouses and partners. The Chronicle, for one, maintains that it is justified in stopping its reporters and editors from putting bumper stickers on the family car, marching in street protests and giving money to candidates. Those activities could create the appearance of a conflict of interest, the paper's editors say. Readers might think a journalist who they know supports Republican candidates, for example, has a Republican bias, even if none exits.

That policy appears to contradict sections 1101 and 1102 of California's labor code, which bar employers from "forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office" and from "controlling or directing, or tending to control or direct the political activities or affiliations of employees."

Indeed, some local newsrooms, such as KGO-TV Channel 7 in San Francisco, specifically cite state law as a reason they do not interfere with journalists' political activities.

The problem is that these state laws have never been tested as they apply to journalism. And even journalists who often invoke the First Amendment say they aren't confident that the provisions would stand the test of constitutionality if a case ever went to trial.

Nelson v. McClatchy

Supreme Court of Washington, Feb. 20, 1997
"In order to preserve [its managerial prerogative to control its editorial integrity,] a news publication must be free to establish without interference, reasonable rules designed to prevent its employees from engaging in activities which may directly compromise their standing as responsible journalists and that of the publication for which they work as a medium of integrity."

"The private employer has been given, by court decisions, quite broad latitude in controlling the speech of its employees," said Paul McMasters, the First Amendment ombudsman at the Freedom Forum, a non-profit institute in Arlington, Va., devoted to freedom of expression. "At this point, the rights of the private employer trump the rights of the employee. That's what the law and the courts have said."

Anti-war reporter

Last March Henry Norr, a technology writer, was suspended from his job at the Chronicle following his arrest for participating in an act of civil disobedience during a protest against the war in Iraq.

It was in that climate that Mr. Norr said he consulted several lawyers in an effort to sue to get his job back. Most agreed with him that in their view, the state law was on his side.

But many lawyers, including the American Civil Liberties Union, were nonetheless hesitant to take the case because they feared getting bogged down in a long and expensive court battle, in which the Chronicle might successfully claim that its First Amendment free-press rights trump the state provision, Mr. Norr said. That's in part because a Washington State Supreme Court case favoring news organizations' right to limit a reporter's political expression, though it does not control California law, nonetheless has a persuasive effect across state lines.

The Newspaper Guild represented Mr. Norr in arbitration. He also developed the California labor law argument independently and the state labor board agreed to look into his complaint. But Mr. Norr never pressed his complaint or went to court; he settled with the Chronicle for an undisclosed sum.

"One of my big regrets about the whole episode is that I didn’t manage to get some kind of affirmation and publicity for those sections of the code," Mr. Norr wrote in an e-mail.

Pro-Kerry editor

It's like getting sent to Siberia and having them say, 'We're sending you for your good performance.'

-- Employment attorney Barbara Lawless, regarding the reassignment of the Chronicle's letters editor

Again this year, many Chronicle journalists came to the defense of the letters editor, William Pates, who was reassigned to night copyediting duty in the sports department two weeks after Grade the News inquired about several hundred dollars worth of donations he had made to political candidates, including $400 to John Kerry.

Although the Chronicle's editorial page editor, John Diaz, said the job move was "not a disciplinary action," Guild members argued that the involuntary transfer was no way to treat an editor who had loyally labored at the paper for 35 years.

One San Francisco employment lawyer said it would be easy to prove in court that Mr. Pates had been punished.

"It's like getting sent to Siberia and having them say, 'We're sending you for your good performance,'" said Barbara Lawless, a partner in the firm of Lawless & Lawless.

Karl Olson, a partner with Levy, Ram & Olson, the firm that represents the Chronicle, declined to comment on the cases of Mr. Pates or Mr. Norr. He also said he would not answer general questions about the application of First Amendment law to journalists.

But Dick Rogers, the Chronicle's reader representative, wrote in an Aug. 1 column that the paper's ethics policy "was written with one eye on" the state labor code prohibitions against controlling employees' political activities.

He continued: "That's a bitter pill for any paper that, constantly attacked from the left and the right, seeks to say to the world that it calls the news as it sees it, with no allegiances and no alliances."

Clashing constitutional rights

The issue is an important one for journalists across the country because news organizations have adopted very different ethics and conflict-of-interest policies. While it is appealing to argue that the U.S. Constitution protects their personal rights to free speech from an intrusive and overbearing employer, it might be a long and hard struggle to prove.

Being trusted and believed enough to be turned to by the community for the straight story -- above all, the straight story about controversy -- is something that is hard won and too easily lost.

-- First-Amendment lawyer Terry Francke

The piecemeal nature of free-speech protection of employees across the country advantages employers, said Randy A. Fleischer, an employment attorney in Davie, Fla.. He is the former chair of the Broward County Human Rights Board, which has adopted an ordinance similar to California's law, prohibiting discrimination based on political affiliation.

"We see California as the promised land -- just about everywhere else in the country employees don't have rights," Mr. Fleischer said.

Washington State has a law similar to California's that was partially invalidated in 1997 by its supreme court, after a newspaper argued an employee's political activism compromised its credibility. The court sided with the Tacoma News Tribune, which said the newspaper can take the necessary steps to defend its reputation for impartiality.

The paper had reassigned reporter Sandra Nelson to the copy desk when she refused to stop engaging in feminist, abortion-rights and gay-rights political organizing in her free time. The court ruled that the state law protecting her -- prohibiting discrimination against employees based on their political activities -- violated the First Amendment's guarantee of freedom of the press. The majority of justices in the 7-2 decision saw their main duty as upholding the newspaper's right to publish free of apparent conflicts of interest.

"Editorial integrity and credibility are core objectives of editorial control and thus merit protection under the free press clauses," the court opined.

Lawyers wary

James Lobsenz, Ms. Nelson's attorney, acknowledged that while the Washington case is not binding precedent in California, it does have "persuasive authority."

"There's no reason why the California court couldn't come up with a different ruling," Mr. Lobsenz said.

But when told about Mr. Pates' troubles at the Chronicle, the attorney was pessimistic: "If someone asked me to take this as a paying case, I wouldn't take it. It's a case that would take many years to work its way through the court and you wouldn't have any idea of its outcome based on what courts have done in the past."

Brad Yamauchi, a prominent San Francisco employment and civil rights attorney, and partner in the firm of Minami, Lew & Tamaki, said that although he likes the California provisions, he doesn't think courts these days would ignore a newspaper's invocation of the First Amendment's free-press language, as in the Nelson case in Washington.

"That's how I think it would come out in California as well," Mr. Yamauchi said.

Not all attorneys who work on these issues discount news organizations' free-press arguments.

"The Nelson case stresses, correctly, that the only thing supporting the press' viability as an institution is its credibility," Terry Francke, a leading California free-speech advocate and general counsel of Californians Aware, a non-profit open-government group, wrote in an e-mail. "Now of course anyone can publish to the world for the price of the use of a personal computer and a modem. But being trusted and believed enough to be turned to by the community for the straight story -- above all, the straight story about controversy -- is something that is hard won and too easily lost."

Mr. Francke, however, warned against too zealous a persecution of journalists: "When it comes to relatively low-key conduct like making a modest political contribution, what, finally, are these policies saying: 'We want only political wallflowers in our newsrooms,' or 'Just don't get caught and embarrass us'? The former zeal, since purity, not perception is the issue, would seem to justify monitoring employees' conversations and reading or other media consumption for telltale signs of engagement. The latter would mean, if one must send a politician a contribution, to launder it through a cooperative in-law."

Policies could protect speech

The legal uncertainties leave little room for journalists to argue that they have any established rights to engage in their own political activity. For now, their best defense might be organized labor, which may at least negotiate ethics policies. However, a revised interpretation of the Chronicle's ethics policy was promulgated after the Norr incident without consulting the Newspaper Guild, much to the union's chagrin, said Michael Cabanatuan, president of the Northern California Media Workers' Guild.

The actual wording of the policy matters a great deal. In 2000, actress Sharon Stone, then married to Phil Bronstein, who is now the Chronicle's executive editor, donated $1,000 to Al Gore's presidential bid, according to federal records available through Opensecrets.org, a project of the Center for Responsive Politics. That donation would have run up against the Chronicle's ethics policy. Only back then, Mr. Bronstein was editor of the San Francisco Examiner, which had no such rule. And back then even the Chronicle's policy was different. The bit about spouses' political activities was added in 2002.

Ethics policies ought to demand impartiality of journalists off the job, said Chronicle editor Diaz.

"I don't stop being a journalist when I leave this office," he said. "This is a special business, in the role that we have. We have a great deal of influence, but the way we get that influence is we have to earn it by showing readers that we truly are independent, even when we have strong opinions, and I don't think you can do that when you're an activist. To do this job well you have to decide: 'Is my first loyalty going to be to journalism or to causes and politicians?' I don't think you can have it both ways."

 

Previous coverage of this issue:

Chronicle reassigns letters editor 7/30/04

Make the call: Should journalists be allowed to contribute to political campaigns? 7/23/04

Political gifts earn Bay Area journalists praise, punishment 7/20/04

See also:

The Chronicle's conflict-of-interest policy

 

 

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