Monday, October 29, 2012

The First Amendment applies to employees




A few years ago, I decided that I wanted to devote the rest of my professional life to full time work on law and public policy. It was a great decision but, as is so often the case, it did not come without a cost. One of them was that I eventually had to resign as General Counsel of Rite Hite Holding Corporation - a company that I had the privilege to serve on a full time basis from 1997 -2007 and, on a more limited basis, until last year.
 I am not going to comment directly on the e-mail that the company's owner, Mike White, sent to his employees other than to say that I know Mike sincerely believes that it is in the best interest of his employees to understand the potential impact of federal policies on the company they work for. 

But I am going to weigh in on the notion that sending such an e-mail should be regarded as illegal. I would write the post had any other company been involved.

Let’s go to the law. Sec. 12.07(3) of the statutes provides:

No employer or agent of an employer may distribute to any employee printed matter containing any threat, notice or information that if a particular ticket of a political party or organization or candidate is elected or any referendum question is adopted or rejected, work in the employer's place or establishment will cease, in whole or in part, or the place or establishment will be closed, or the salaries or wages of the employees will be reduced, or other threats intended to influence the political opinions or actions of the employees. (Emphasis supplied)

By its own terms, the statute does not apply to the Rite Hite e-mail. The law is expressly limited to unqualified commitments (statements that something "will" happen) and comparable statements ("other threats"). The e-mail did not say that the anything "will" happen or make any other "threat." It outlined the ways in which potential Obama policies might affect the company and how those impacts could harm its employees. In fact, the e-mail made clear that no employee would be prejudiced by the way in which he or she voted.

I appreciate that some will argue that the statute should be read broadly to "implied" threats or statements of probability. That won't happen. Criminal statutes are to be narrowly construed and, as we have seen, the this law simply doesn't apply here.
But even the law could be stretched to cover the mere communication of political opinion, it would be unconstitutional.

In our country, we have a very strong presumption against punishing speech. We allow for very few - and quite limited - exceptions. Courts are especially protective of core political speech, i.e., statements about issues and candidates. They are rigorously suspicious of any restrictions based on the content of speech. Restrictions on the content of core political speech are almost never upheld and, if they are to survive, must be narrowly tailored to serve the most compelling of state interests.
A statement of opinion from an employer to an employee where the employer will have no way of knowing how any employee voted doesn’t even come close to the type of thing that would justify the suppression of political speech.

I cannot imagine that the DA would bring charges in this case. He certainly knows that they would be dismissed by return mail. We still believe in free speech here.
Cross posted at Purple Wisconsin

8 comments:

jp said...

No comments???

Anonymous said...

The professor, while nobly prefacing this post by revealing his association with Rite Hite, proceeds in one fail swoop to throw out all objectivity when he casts aside in a cavalier manner that he need not analyze of the content of White's email to his employees.

Perhaps the professor is right in his assessment of the intent of the email, but since when does an anecdote that "Mike sincerely believes that it is in the best interest of his employees" count as hard core evidence? Imagine his students making this statement in class or in a courtroom...the professor would be all over them, and rightly so!

No, an analysis is REQUIRED to offer insight into how a case COULD be made that White's comments constitute construed as a threat to his workers. In the future, professor, may I suggest that you not be intellectually lazy? I know it is easier on your part to simply assume the email does not contain any threatening language, it bolsters your case from your angle. Yet we know a threat can be direct or implied. The statute does not provide for a clear distinction; therefore, the DA has the liberty to investigate whether there is a violation of the law due to White's intent. The professor should know that his pleas to the DA to the contrary will be dismissed by return mail.

White's interpretation of the POTENTIAL impact of the implementation of Obamacare on business owners is construed by him as devastating to his bottom line. And White's assessment MAY be true. Certainly, if Obama earns a second term, companies could be compelled to lay off workers or reduce benefits. To me, however, it seems like a self-fulfilling prophecy--think that Obamacare will ruin a business because of its excessive mandates, act like it will by taking preventive measures to safeguard against its alleged effects.

It does not appear there is an issue with White's broad statements about "forcing taxpayers to fund President Obama's future deficits and social programs, which require bigger government." But it seems he treads perilously close when he tells employees that no profits will be reinvested in the company; rather, his earnings will be "sent into the abyss that is Washington, D.C. On top of the burden of having your personal taxes increase dramatically, which they will, your RSP contributions and healthy retirement are also at risk, all for the sake of maintaining an oversized government that borrows 42% of every dollar it spends." White also stated that an Obama reelection would result in "dramatically reducing, if not eliminating, your and my RSP contributions."

It COULD be argued that White is providing a blueprint as to what he intends on doing should Obama be reelected. White has a history of donating to Republican candidates, sometimes over the legally allowed amount; he does not offer evidence why Romney would be better - just why Obama would be bad; the timing of the letter is in line with other CEO's making similar remarks conveniently after Romney urged business owners to engage in this conduct; and White's figures do not include any potential tax breaks or credits Obama says will be put in place.

Anonymous said...

CONTINUED...

Now, when the professor hints at "criminal statutes are to be narrowly construed and, as we have seen, the this law simply doesn't apply here", he is providing HIS interpretation as to how the law OUGHT to be applied, not how the law SHOULD be applied. We all know the professor himself takes a narrow approach to these matters, so it's no surprise that he insists in his standard operating procedure, as opposed to a DA who may take a different approach.

Imagine if one of White's employees chose to email a rebuttal White's claims to everyone in the company. Would the professor recognize the First Amendment rights of that employee? What would be the response by White if this event took place? If White took retaliatory action, would White be in violation of the statute? Would the professor defend White's conduct in this case, therefore contradicting his claim that he supports core political speech? Perhaps the professor would entertain these points.

John Foust said...

Standard Contradictory Disclaimer™: I am not going to comment directly on the e-mail that the company's owner, Mike White, sent to his employees. [...] The e-mail did not say that the anything "will" happen or make any other "threat." It outlined the ways in which potential Obama policies might affect the company and how those impacts could harm its employees. In fact, the e-mail made clear that no employee would be prejudiced by the way in which he or she voted.

Call Prof. Shh 'n Shh quick! We need a blog post about this. Repost it to Purple Wisconsin! Rehash a version for the MU Law blog! Get it in the MJS! Email the talking points to WPRI and Sykes and Belling!

Anonymous said...

Intimidation by the wealthy against the middle class (and working poor?). It is pathetic.

Anonymous said...

Has this guy promised bonuses to his employees in the event Willard wins the election?

Anonymous said...

Intimidation?! Perhaps when you have to bring an employee in to the conference room and tell them they are being let go because the company has to cut back due to an increase in taxes you may think twice about whether or not a letter explaining the implications of Obamacare was intimidating.

jp said...

The consequences of Obamacare are intimidating because of its disadvantages.