Tuesday, April 15, 2008

Injunction Judge Is Skeptical, Wants More Briefs

Well, no one ever said that it was going to be easy for the eight fired reporters of the News-Press to be reinstated to their jobs.

While not making a final order, federal judge Steven Wilson before whom the request for a reinstatement order is pending, issued a written opinion last Friday expressing reservations about whether the reporters could be reinstated without infringing on Wendy McCaw's right of freedom of the press under the First Amendment.

In his written opinion Wilson noted that an injunction requiring McCaw to reinstate the eight cannot be issued if there is a "significant risk" of violating the publisher's First Amendment rights. Although it is not clear that the burden placed on McCaw's editorial discretion by an injunction would rise to the level of a First Amendment violation or that disciplining or discharging employees was necessary for McCaw to protect her editorial discretion as opposed to the use of some other available remedy, Wilson wrote that without more legal guidance he is inclined to determine that there is a significant risk.

Wilson noted that William Kocol, the administrative law judge who presided over last summer's NLRB hearing, considered these issues and dismissed them. However Judge Wilson doesn't find Kocol's reasoning persuasive.

Although Kocol determined that the employee's concerted effort to enforce separation between the editorial and opinion sides of the paper was protected labor organizing activity, according to Wilson, he completely failed to acknowledge that they sought to do so through affecting McCaw's First Amendment-protected editorial discretion. Although Wilson was "loath to question" Kocol's factual determinations, he rejected as clearly erroneous the administrative law judge's view that enforcing separation between the two sides of the News-Press is not a matter of editorial discretion.

Wilson's view is that Kocol failed to grapple with McCaw's argument, as articulated by her attorney Barry Cappello, that if the union is organized to affect McCaw's editorial discretion, any application of the National Labor Relations Act which prevents McCaw from combating the union is a violation of McCaw's First Amendment rights.

Judge Wilson has asked for additional written legal arguments from the parties on this issue with the final written brief being due April 22nd. Wilson should decide fairly soon after that.

I'll have more on this whenever it happens.