1st Am vs. antidiscrimination rules
VOLOKH at mail.law.ucla.edu
Wed Jan 26 14:32:28 PST 2000
I wonder what the people on this list think about the
following case; though it deals with a freedom of the press challenge to
antidiscrimination law rather than a right of expressive association
challenge, the problem it raises seem to me quite similar to that implicated
"[Plaintiff Sandra] Nelson is a self-professed lesbian who
spends much of her off-duty hours serving as a political activist. She
attends political fora, demonstrations, and classes for political causes
including highly visible support for gay and lesbian rights, feminist
issues, and abortion rights. Nelson is also a member of and organizer for
Tacoma Radical Women, a feminist socialist organization, and the Freedom
Socialist Party. Much of her political activism has been supported by this
party and has been in support of its party platform. McClatchy knew of
Nelson's political activities when it chose to retain her.
"In 1987, Nelson was seen by a [Tacoma News-Times] reporter
and photographer as she was picketing for abortion rights outside a local
hospital. TNT management told her such activity compromised the paper's
appearance of objectivity. Nelson responded she would continue her public
political activity anyway.
"In 1989, Nelson helped launch a ballot initiative to have
an antidiscrimination ordinance reinstated following its repeal. Throughout
1990 she visibly promoted the initiative by organizing volunteers,
soliciting support from various groups, arranging for community speakers,
organizing rallies, and collecting signatures for the initiative. The
initiative battle remained a major political story throughout the year and
increasingly so as the fall election approached. On August 15, 1990, TNT's
editors informed Nelson that she would be transferred from her position as
education reporter to swing shift copy editor until after the November
election. TNT stated that Nelson's activities violated the ethics code and
raised concern about TNT's appearance of objectivity. . . .
"[Rev. Code Wash. sec.] 42.17.680(2) states in full:
"No employer or labor organization may discriminate against
an officer or employee in the terms or conditions of employment for (a) the
failure to contribute to, (b) the failure in any way to support or oppose,
or (c) in any way supporting or opposing a candidate, ballot proposition,
political party, or political committee.
"[The court then went on to conclude that this statute
covered this case.]
"[The court ultimately held:]
"We recognize Nelson's statutory right to avoid workplace
discrimination based on her politics. . . . However, the First Amendment
freedom of the press is the constitutional minimum regardless of the legal
source of government abridgment. Choosing an editorial staff is a core
press function, at least when that choice is based on editorial
considerations. That is the case here. This statute has been
unconstitutionally applied. . . ."
Nelson v. McClatchy Newspapers, Inc., 936 P.2d 1123 (Wash.
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