Saturday, January 14, 2006

Gold Kist? James Madison would like a word with you.

It’s come to our attention recently that at least a handful of our local lawyers here in Athens read AthPo, and we’d like to send a shoutout to them.  Please, ladies and gentlemen of the bar, for heaven’s sake, call the guy in this story, because it looks like he’s got something of a First Amendment case here.

If you’re too engrossed in AthPo to click the link, here’s the abridged version.  Guy works for Gold Kist.  Every year for the last four years, he’s celebrated Martin Luther King’s birthday by posting the full text of the “I Have a Dream” speech in the employee breakroom.  Everything’s cool, until this year, when Gold Kist informs him he’s got to take it down.

I don’t know from law, but my co-editor does, and I’m sure he’ll have a thing or two to say about this when he gets back into town.  I do, however, have it on good authority from the prettiest third-year law student I know that this at least appears to meet the requirements for protected political speech.

Now, we’ll leave it to the real lawyers to weigh in, but this seems pretty cut and dried to me.  Political speech is protected, there’s no credible argument to made for incitement, and the fact that the company allowed him to do it in previous years goes a long way, in my opinion, towards negating any argument along the lines of the workplace not being a public forum.


Fishplate said...

Sure, the Constitution gives him the right to say whatever he wants...but it does not give him the right to have his employer subsidize/authorize/legitimize his opinion. Political speech is not protected on private property, same as you not being allowed a column in the ABH just because you have an opinion.

Though it does seem short-sighted of Gold Kist to require removal of the poster, and will certainly result in bad press for them, they do not have to allow anything on company property they don't like.

Suppose they allow that poster, and the next guy likes to put up posters of nekkid wonen? Or nekkid men, or goats, or whatever? They can ban those, but then the first poster is cited as precedent. so they don't want that to start - only offical company documents on the bulletin board.

Of course, he has the right to work for whomever he likes. As does every other person at Gold Kist who thiks it's unfair.

Publius said...

Well, not exactly. I agree with you that it's a bad PR move, though. The argument you're making is a valid one for Gold Kist, at elast valid enough to merit seeing the inside of a courtroom.
I'm not a lawyer, and I'm sure that wiser heads will correct me on the fine legal points, but here's my take.

"Political speech is not protected on private property"

True enough, and if the company had a policy of banning any type of non-company sanctioned posting of things, then the case would be right out in court. But, since the company did allow that poster up in the past, my understanding is that there's a case to be made that there's a precedent, and thus by allowing it in the past, the workplace does legally become a public forum, and the political speech is then protected. You're absolutely right though, that political speech is not protected except in public forums, and there's a lot of First Amendment law based around that very concept.

"Suppose they allow that poster, and the next guy likes to put up posters of nekkid wonen? Or nekkid men, or goats, or whatever? They can ban those"
Well, again, we're talking about political speech. So if the naked women or men or goats were put up as political speech, then yes, they would be protected. In fact, I'd argue that the very act of putting them up to protest the first poster is, in and of itself, political speech and thus protected. Political speech is held to a pretty high standard of scrutiny, as it should be.

Look, I'm no lawyer, and the fella who is will probably be weighing in on this thing soon, with case law and everything, but I'm willing to admit that this is my, non-law-school-trained take on the situation, and while a judge may well disagree with me, I think there's at least enough merit under the First Amendment to warrant taking a look at it, no?

DoubleDawgDareYa said...

I haven't had any time to partake in any constitutional nerdery and actual look any of this up yet. But here's an initial take.

First, the problem with this being a constitutional issue is the fact that no governmental actor is involved. The Bill of Rights are generally meant to protect individuals from certain federal governmental action, and then the 14th amendment applies some, if not all (depending on your chosen constitutional scholar) of them to the states. Thing is, the State of Georgia isn't saying he can't put up the speech, Gold Kist is. Now, the actions of private actors can be treated as state action under the right circumstances, e.g., if the policy of Gold Kist not allowing anything besides official documents to be posted was itself mandated by some state or federal law. On an initial glance, though, I don't see the facts in this case that convert Gold Kist's actions into governmental action.

I'm not sure what the implications are of the fact that he has been allowed to do it in the past. From a common-sense standpoint, I can see how that makes it extremely unfair, but in this case I'm not sure if unfair = illegal.

Ironically, the policy itself probably stems from Gold Kist's legal counsel being afraid about generating lawsuits. This is fodder for a later post, but a lot of this can be blamed on the Supreme Court's incoherent establishment clause jurisprudence. Although this case obviously doesn't involve religious speech, I think the policy may be directed at fears of dueling religious and/or political speech. Now matter how you feel about the issue personally, I think most constitutional scholars would agree with me that the law in this area is as clear as mud. In the recent 10 commandments cases, which allowed a monument in Texas but disallowed one in Kentucky, the Court couldn't even reach a consensus on which test to use.

I think a better illustration to use in the slippery slope argument is not the "nekkid women" poster, but something along these lines: what if one of his Gold-Kist co-workers, who happens to be a white supremicist, decided that around MLK Day he wanted to post a famous speech of a KKK leader that described MLK as a communist and touted the supremacy of the white race. Wouldn't this also be protected political speech? Would Gold Kist be required to allow that speech to be posted?

Does Gold Kist's management have their collective heads up their collective asses? Absolutely. Is their any legal remedy, constitutional or otherwise? Not sure, but I'm leaning toward no on the constitutional part. I leave it to others to show me where I'm wrong or point out other provisions of law to me that might convince me otherwise.

And who knows, I may even find time for some additional constitutional nerdery in the next couple of days.

Publius said...

Well, I'll yield to the guy who actually has, you know, a law degree and all.

monticello_pres said...

Not part of GoldKist, but as a company, I have the right to restrict any and all statements made on "my" (company) bulletin boards. And as "the company" - I can discard any material placed on such board.

That doesn't make this right. Doesn't make it fair. Doesn't make it the right call. But life isn't any of these - and the neither Constitution nor the Bible promises any of the above.

Adrian said...

The spokesperson's statement about the policy implied a concern for controversy, and the manager said someone may find it offensive. This fear of controversy seems silly since King's message is about nonviolence and equality, and we actually have a federal holiday in his remembrance. I suppose that the Declaration of Independence might be "offensive" to someone, too.