by Paul Alan Levy
For more than twenty years, before a few Internet free speech cases wandered across my desk and led me into my current area of specialization, I spent most of my time at Public Citizen representing rank-and-file union members in litigation over their right to campaign for change within their unions, and their rights vis-a-vis management given the fact that managers often try to rid themselves of workers who rock the boat about complaisant union leaders. So it was with special pleasure that I seized the opportunity to represent a Boilermaker who has been sued for creating a Facebook page that pillories Newton B. Jones, the president of the “international” union (reflecting that the union has a handful of locals in Canada).
The Facebook page, entitled “Lord Newton B. Jones, Monarch,” includes such lines as “Hi, I’m Newt, my daddy gave me a dynasty” (the father of Newton B. Jones was union president before him, and there are several younger Joneses on the payroll), and lists his fairly large annual compensation figures with the sardonic comment “Solidarity! Whatever. The union makes me rich!”). Regrettably the page was taken off line as part of Jones’ legal offensive against the criticism (does Facebook not allow parody pages?), so I cannot link to it directly.
It is hard to believe that Newton's lawyers think they could actually prevail in the litigation. But union leaders sometimes do things like this for pure purposes of intimidation, and sad to say there are union lawyers out there who don't feel they have enough clout with their clients to tell them to just take the criticism instead of filing frivolous litigation. The threat of having to hire a lawyer to defend oneself in court can be intimidating enough to many union members, but in the construction trades, being identified as a dissident can have real economic consequences. My understanding of this problem is one of the things that impelled me to take this case even though it arises in California, where the rules limiting Doe subpoenas to realistic lawsuits is already well established.
Most union construction work is referred out of union-run hiring halls, and experience shows that all the nondscirmination rules in the world can do little to stand in the way of a malevolent leader who just isn't willing to be crossed and doesn't care if he has to bend the rules to get what he wants. That is not true of most union officials, in my experience; but is Jones such a leader? Would he use identifying information in aid of private revenge? No way to tell, but the thin skin revealed by this lawsuit (and that fact that the union's general counsel was willing to file it) is not encouraging.
Today we have filed a motion to quash the subpoena, arguing that the union president has not come close to meeting the test for enforcing subpoenas to represent anonymous Internet posters. A copy of the Facebook page in question was submitted with our papers (see pages 25-27 of this document); the image is a bit blurred but judge for yourself whether this form of “impersonation” ought to be forbidden by law.
Although California provides for awards of attorney fees when an anonymous speaker prevails against a meritless subpoena, the case also raises the prospect of arguing that the very filing of the lawsuit may have violated the Union Members’ Bill of Rights under the Landrum-Griffin Act. Back in the 1990's, Ellis Boal, one of the pioneers of union democracy litigation when he was the original lead counsel for Teamsters for a Democratic Union, persuaded a court to rule in Clark v. Esser that, by using union resources to pursue a suit against members a Detroit-area Teamsters local for defamation and related torts, the individual officers of that local engaged in acts that violated the free speech provision of the statute. Although Jones lives in North Carolina (according to the libel complaint), he sued in a Kansas state court, using the union’s general counsel.
It remains to be seen whether and to what extent union resources have been used in the case.