Another obstacle to free speech online (sad to say)

[David Farber <dave () farber net>]

Begin forwarded message:

From: Paul Levy <PLEVY () citizen org>
Date: March 29, 2007 3:40:13 PM EDT
To: dave () farber net
Subject: Another obstacle to free speech online (sad to say)

I am sad to report that the leadership of at least one major union  
seem to be just as afraid of the democratizing power of the Internet  
as some of their corporate compadres.  The International Union of  
Operating Engineers suddenly adopted a rule, applicable to all union  
elections starting this year, that any “campaign website” created by  
a candidate for union office or any candidate’s “supporters” must be  
password protected so that only union members, and not the general  
public, can learn about the ways in which union officers are being  
criticized by their members. Members will get access to the web sites  
by entering membership ID numbers or social security numbers. The  
union’s leaders claim that they don’t mind members sending letters to  
the editor, buying full pages ads in the New York Times (hah!), or  
even giving out leaflets at the job site where union leaders or their  
policies are criticized, but the Internet is too effective and cheap  
a means for speech so this speech has to be regulated.  Perhaps  
coincidentally, the rule was adopted in the midst of a hotly  
contested election in the home local of the union’s Second Vice  
President in which the challengers have a substantial web site filled  
with charges against the vice-president.

What worries us is not just the extra hassle that creating (or  
buying) a password protection system for access by 400,000 members  
imposes on workers who may not have much sophistication in web site  
design, and the problem that many folks don’t like to enter  
identifying numbers to register for web site access.  The larger  
worry is the attempt to establish a beachhead for regulating members’  
right to communicate to the public in the first place.

So, we have filed suit on behalf of several members to strike down  
the new rule.  Within unions, the First Amendment is not applicable,  
but there is a statutory analogue under the “Union Member’s Bill of  
Rights” (Landrum Griffin Act).  So, our suit is based on that authority.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation

>>> Robert Yule 3/29/2007 3:25 PM >>>
PUBLIC CITIZEN PRESS RELEASE

For Immediate Release: Contact: Paul Levy (202) 588-1000
March 29, 2007 Rachel Pleatman (202) 588-7742

Public Citizen Files Lawsuit on Behalf of Engineers Union Membership  
To Protect Free Internet Communication

Members Have Free Speech Right to Speak Online Within Union and With  
Public

WASHINGTON, D.C. - Public Citizen filed a lawsuit today with the U.S.  
District Court for the District of Columbia on behalf of members of  
the International Union of Operating Engineers (IUOE) alleging that  
their right to communicate has been infringed upon by the union.

IUOEs executive board violated its members statutory free speech  
rights by announcing a new rule that would force union members to  
password-protect personal Web sites containing information about  
union elections so that they can be viewed only by other members of  
the union. The union has also maintained an illegal provision in its  
constitution that states that members will be fined if they sue the  
union without first exhausting intra-union remedies.

According to the Labor-Management Reporting and Disclosure Act of  
1959 (LMRDA), all members have the right to speak to each other as  
well as to the general public about union affairs and elections. The  
act also defends the right of union members to sue their own union  
without the threat of discipline.

The IUOEs membership is widely dispersed across the United States and  
Canada, making non-Internet communication between members costly and  
difficult. Many locals are spread over entire states or even several  
states. Members who want to express their views about matters that  
affect the entire union cannot effectively do so on their own job  
sites or through traditional mail.

Open communication through the Internet is vital to union members who  
do not agree with the direction incumbent officers are taking. Member  
Web sites also allow union members in other parts of the country to  
show support for candidates in upcoming elections and keep the public  
and the press informed about what issues unions may be dealing with.

In addition, creating a Web site that is password-protected involves  
more technical skill, which may prevent IUOE members from attempting  
to produce their own sites. Even if the owners Internet service  
provider offers the service, the process can be costly. Moreover,  
members are less likely to view the Web site if they have to enter  
data about themselves in order to access it.

Punishing members who lack the technical know-how or financial  
ability to comply with this rule, or who want the public at large to  
know about their campaign, is a direct violation of their right to  
free speech, said Paul Levy, a Public Citizen attorney who filed the  
complaint. The new rule is an attempt to keep sensitive information  
secret when in fact that sensitive data is actually the fact that  
members disagree with incumbent leaders policies and want to change  
union policy.

Article XVII, Section 4 of the IUOE constitution requires that  
members go through internal union remedies before filing a lawsuit  
and states that members who file suit without doing so shall be  
subject to a fine equal to the full amount of the costs incurred in  
the defense of such action by the union. The LMRDA forbids unions  
from limiting members access to litigation, and previous courts have  
struck down union constitutional provisions similar to IUOEs Article  
XVII, Section 4. Because the only opportunity to appeal a decision of  
the unions executive board is at the unions convention next year,  
long after the new Web site rule goes into effect, pursuing the  
unions remedies would allow members to be punished without court  
protection.

The IUOEs general counsel has stated that the union plans to enforce  
its Web site password protection rule even though it violates its  
members free speech. As a result, Public Citizen asks in its  
complaint to grant injunctions against the Web site rule and Article  
XVII, Section 4 of the IUOE constitution.

Public Citizen lawyers Levy and Greg Beck filed the complaint, which  
seeks declaratory and injunctive relief.

To read the complaint, visit: http://www.citizen.org/documents/ 
iuoecomplaint.pdf .

Public Citizen has a record of defending the free speech rights of  
Internet users. To learn more, visit http://www.citizen.org/ 
litigation/briefs/IntFreeSpch/ .

###

Public Citizen is a national, nonprofit consumer advocacy  
organization based in Washington, D.C. For more information, please  
visit www.citizen.org .


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