Imagine a world in which people no longer debate public policy issues for fear of being sued by their opponents. That is the goal of a lawsuit filed by the Michigan Education Association (MEA) and its president alleging that the Mackinac Center for Public Policy “misappropriated” his “likeness” by quoting him in a letter. And while the lawsuit itself is clearly frivolous, the MEA’s willingness to run roughshod over the First Amendment to silence its opponents signals an alarming escalation in the union’s battle against meaningful education reform in Michigan.
On September 27, 2001, the president of the Michigan Education Association, Luigi Battaglieri, held a media conference to announce the opening of a new organization called the Great Lakes Center for Education Research and Practice. As became clear during the press conference, a major objective of the MEA-funded, MEA-governed group will be to defend the educational status quo by criticizing the work of reform-minded organizations such as the Mackinac Center. In laying out his vision for the Great Lakes Center, Battaglieri candidly acknowledged the prominent role played by the Mackinac Center in providing education research to the public:
I know what’s going through your minds—I think I’ve worked with the media enough that I expect the headline is going to be that the MEA takes on the Mackinac Center . . . . I guess I expect their reaction to be one where they will welcome us as new kids on the block to enter into the field that they’ve been into for a number of years now, and I assume they’re going to scrutinize our research just as much as we’ve scrutinized theirs. And so, quite frankly, I admire what they have done over the last couple of years entering into the field as they have and being pretty much the sole provider of research to the community, to the public, to our members, to legislators, and so on . . . .[T]hose of us in the educational community, for being in the business of educating, we’ve done a poor job in my opinion in the past of educating the public about all the good things that are going on in public education. 1
Pleasantly surprised by these words of praise from a leading opponent, Mackinac Center president Lawrence Reed quoted Battaglieri in a year-end letter describing the Center’s accomplishments and seeking support for the coming year:
By all measures the Mackinac Center has had an outstanding year and the people of Michigan are the beneficiaries. But you don’t need to take my word for it.
This fall Luigi Battaglieri, president of the Michigan Education Association, stated, “Frankly, I admire what the Mackinac Center has done.” Mr. Battaglieri, whose union is generally at odds with the Mackinac Center, said this with respect to how Mackinac Center research has shaped education reform in Michigan and around the nation. 2
Shortly thereafter, the Mackinac Center received a threatening letter from the MEA’s lawyer, who accused the Center of “distorting” Battaglieri’s views and demanded the names and addresses of anyone who had ever received any solicitation from the Mackinac Center in which Battaglieri’s or the Michigan Education Association’s names were used. 3
Explaining that it had done nothing wrong, the Center correctly noted that the use of Battaglieri’s remarks “in a non-profit fundraising letter dealing with political issues” was fully protected by the First Amendment. Battaglieri and the MEA filed suit anyway, claiming the Mackinac Center had “misappropriated” their likenesses for its own commercial benefit. The union and its president are playing for keeps; besides renewing their demand for the Center’s mailing list, they want all of the donations the Mackinac Center got from referring to them in the disputed mailing, and they have also asked the court to slap a permanent gag order on the Center forbidding it from using their names or identities in future solicitations. For anyone committed to the principle of free expression and the marketplace of ideas, it would be deeply troubling if this lawsuit had a legal leg to stand on. Fortunately, it does not.
Why the MEA’s Attack on Free Speech Must Fail
In language that fits this case to a tee, a Michigan judge recently observed that “the First Amendment . . . would be a poor refuge for free expression if public figures could censor the use of their names whenever they found the speech to be distasteful.” 4
But before discussing the First Amendment issue, it will help to have a bit of background regarding the law of misappropriation.
The principle underlying “misappropriation of likeness for commercial benefit” (sometimes known as the “right of publicity”) is that one person should not be allowed to profit by exploiting someone else’s likeness or identity. For example, a quintessential misappropriation case would be if Coca-Cola used a picture of Michael Jordan drinking a Coke in an advertising campaign without his permission. But Michael Jordan drinking a Coke is not a “newsworthy” event, and Coca-Cola’s purpose in using his picture is not to promote the public interest but simply to line its own pockets using Jordan’s celebrity status. Courts are split on whether misappropriation extends to non-celebrities, 5
and, while some have mentioned the tort in dicta, no Michigan court to date has actually awarded damages under a misappropriation or “right of publicity” theory. 6
What is absolutely clear, however, is the existence of a First Amendment privilege that allows people and organizations to report matters of public interest without being sued.
So the first question in this case is whether Luigi Battaglieri’s discussion of the Mackinac Center during the Great Lakes press conference was a matter of public interest. Presumably he thought so, or he wouldn’t have bothered to call the press conference (the primary purpose of which was to tout a Great Lakes Center-commissioned “study” of the Mackinac Center’s work) in the first place. The Mackinac Center is the leading voice for education reform in Michigan, whereas Battaglieri and the MEA are staunch opponents of the reforms proposed by the Center. Battaglieri himself underscored the tension between the two organizations when he remarked at the press conference that, “I expect the headline is going to be that the MEA takes on the Mackinac Center.” 7
Is it newsworthy when the president of the Michigan Education Association says at his own press conference that he admires the Mackinac Center’s work? Of course it is. And if the reporters who were there had a First Amendment right to publicize Battaglieri’s remarks (which they certainly did), doesn’t the Mackinac Center have the same right? Contrary to Battaglieri’s and the MEA’s apparent misunderstanding, the answer is clearly, “Yes.”
Courts in misappropriation cases have established a so-called “newsworthiness” privilege that “permits the use of a plaintiff’s name or likeness when that use is made in the context of, and reasonably relates to, a publication concerning a matter that is newsworthy or of legitimate public concern.” 8
That privilege is not limited to reporters, photojournalists and other members of the traditional media. Instead, as the Colorado Supreme Court recently explained, “freedom of the press is not confined to newspapers or periodicals, but . . . comprehends every sort of publication which affords a vehicle of information and opinion. This means that if the contents of an article are newsworthy when published by a local newspaper, then they do not cease to be newsworthy when subsequently communicated by a different sort of publisher.” 9
Various courts have held that the creator of a surfing documentary, 10
a detective agency’s newsletter, 11
and even Major League Baseball 12
are entitled to claim the protection of the newsworthiness privilege. Thus, the Mackinac Center had every bit as much right to publicize Mr. Battaglieri’s newsworthy remarks as the reporters who attended the press conference.
In the face of this sweeping First Amendment privilege, the only argument Battaglieri and the MEA can possibly make is that the particular medium in which Battaglieri’s remarks were quoted—namely, a letter describing and seeking financial support for the Mackinac Center’s work—constitutes unprotected commercial speech. It is true that courts have defined a special category of speech that “do[es] no more than propose a commercial transaction,” and thus receives a much lower level of protection under the First Amendment. 13
But the public policy-related contents of the Mackinac Center’s mailing, together with its status as a non-profit organization soliciting funds, plainly foreclose any attempt to invoke the commercial speech doctrine here.
The best discussion of the interplay between misappropriation of likeness, the First Amendment and the commercial speech doctrine is found in a recent Colorado Supreme Court case called Dickerson & Associates v. Dittmar. 14
The question in that case was whether a woman who had been convicted of theft could sue the private detective whose investigation led to her arrest for describing the incident in his company newsletter. Concluding that the First Amendment barred the woman’s misappropriation claim, the court specifically rejected the idea that the detective’s profit motive in publishing his newsletter (which he distributed to potential customers) “transform[ed] a publication regarding a legitimate matter of public concern into commercial speech.” 15
Similarly, the California court of appeals has held in another misappropriation case that “an expressive activity does not lose its constitutional protection because it is undertaken for profit.” 16
The mailing in which the Mackinac Center quoted Battaglieri addresses topics that are part of an important and ongoing civic discourse. For example, the mailing describes how privatization of government services can save Michigan taxpayers money; it points out that only 46 percent of Michigan public education employees are teachers (the lowest rate in the nation); and it warns of legislative proposals to increase taxes and diminish private property rights. The mailing is both informative and persuasive. It describes various public policy issues that might be of concern to its recipients, explains the work the Mackinac Center is doing in those areas and encourages recipients to support that work. Contrary to the standard formulation of the commercial speech doctrine, the mailing does not propose a “transaction” of any kind. Rather, it encourages people to support the Center’s mission by donating money.
Battaglieri and the MEA have put themselves in a precarious legal position; given the broad protections of the First Amendment, the only way they can avoid having their case summarily dismissed is by establishing that the Mackinac Center’s mailing was nothing more than commercial speech. That presents a huge problem for the union and its president because not only do the contents of the mailing itself belie that assertion, no less an authority than the U.S. Supreme Court has specifically held that the fundraising activities of public interest organizations are not commercial speech and are fully protected by the First Amendment:
Prior authorities, therefore, clearly establish that charitable appeals for funds . . . involve a variety of speech interests—communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes – that are within the protection of the First Amendment. . . . [S]olicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues . . . . [B]ecause charitable solicitation does no more than inform private economic decisions and is not primarily concerned with providing information about the characteristics of goods and services, it has not been dealt with in our cases as a variety of purely commercial speech. 17
That language perfectly describes both the content and the purposes of the mailing in which the Mackinac Center for Public Policy quoted Luigi Battaglieri, and, together with other courts’ expansive interpretation of the newsworthiness privilege, it leaves the plaintiffs’ legal case in tatters.
Given the overwhelming weight of the case law, it is difficult to imagine how any reasonable person could conclude that Battaglieri and the MEA have a valid misappropriation claim against the Mackinac Center. Unfortunately, this is not the MEA’s first involvement with frivolous litigation. Recently, the Michigan court of appeals found that a defendant was entitled to sanctions after the MEA refused to dismiss him from a lawsuit even after it had become clear that its claims against him were groundless. The court found that the MEA “did not conduct a reasonable inquiry into the basis for its allegations against defendant, and that the inquiry it did conduct revealed no factual basis for its claims against defendant.” 18
The MEA must understand that the courts are off limits to its strong-arm tactics and bullying. Its assault on the Mackinac Center’s free speech rights constitutes a particularly offensive misuse of the judicial system, and the Mackinac Center will certainly consider pursuing appropriate sanctions against the MEA for subjecting yet another defendant to meritless litigation.
In one of its most famous free speech cases, New York Times Co. v. Sullivan, the Supreme Court recognized America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” 19
As Battaglieri and the MEA will learn during the course of this lawsuit, the vitality of that robust public debate is protected by the First Amendment from the greed, pettiness and cynicism so prominently displayed in their complaint.
Mackinac Center Research Threatens MEA Power
The Mackinac Center for Public Policy is a nonpartisan policy research organization that promotes sound solutions to state and local policy questions. Its work includes publishing reports and studies on such diverse topics as fiscal policy, health care and education. The Center is also known for the high school debate workshops it holds each fall, which are attended by hundreds of students and teachers. In the realm of education policy, the Mackinac Center’s leadership is empowering Michigan parents to choose the safest and best schools for their children, and it has been described as “the nation’s leading advocate for a universal tax credit” by The Wall Street Journal. 20
Although the Center makes no bones about its market-based approach, it is not aligned with any political party or ideology.
The idea that a public policy organization must have permission to quote its opponents is so outlandish that one cannot help but wonder what is really going on here. Do the MEA and its president seriously think they will prevail on a farfetched legal theory that is plainly foreclosed by the First Amendment? Or is the point of the lawsuit not so much to win in court as to try to intimidate an organization whose work has been a frequent source of embarrassment and frustration to the union?
The MEA’s true motive in filing this lawsuit is suggested by its dogged pursuit of the Mackinac Center’s mailing list—the lifeblood of any nonprofit organization. As noted above, the first letter from the MEA’s lawyer demanded that the Center turn over the names of anyone to whom the Center had ever sent any solicitation referring to Battaglieri or the MEA. 21
That demand was repeated in the MEA’s complaint, 22
and again in written discovery requests the MEA has served on the Mackinac Center. Why so much interest in the Mackinac Center’s mailing list? In his letter, the MEA’s lawyer said they need the list to correct the misimpression that Battaglieri supports the Mackinac Center’s work (a “misimpression” that was created by quoting Battaglieri accurately and in context). 23
What’s really going on here, however, is a time-honored ploy to undermine public interest organizations by identifying and intimidating their members and contributors. The Supreme Court repudiated this loathsome tactic when southern segregationists tried to use it against the NAACP in the 1950s, 24
but there are those, such as the MEA and its sister organization, the Washington Education Association, 25
who continue to use it, much to their own discredit.
The MEA remains implacably opposed to any meaningful reform of Michigan’s public education system. Its primary institutional goal seems to be the accumulation of financial and political capital. The MEA is certainly correct if it perceives the Mackinac Center’s work to be inimical to those interests. If the MEA wants to counter the Center’s ideas, however, the First Amendment says it must do so by persuasion in the court of public opinion, not by force in a court of law.
Understanding the historical tension between the two organizations helps shed further light on what might have motivated the MEA to launch such an ill-considered attack on the Mackinac Center.
The MEA has suffered a number of public setbacks as a result of the Mackinac Center’s work, and it is perhaps understandable that the union’s leadership might want to lash out at the Center for the pain and embarrassment it has caused them. Simply put, the MEA sees the Center as a threat—a threat to its financial well-being, to its political clout and, most fundamentally, to the “business as usual” approach that has enabled the MEA to prevent meaningful reform of Michigan’s public education system.
Mackinac Center research has shown some of the harmful effects of compulsory unionism, and the Center has proposed that unions should only receive money from people who genuinely and voluntarily support them. Like many unions, however, the MEA unequivocally rejects voluntarism and instead demands that public school contracts include “compulsory support” clauses that require even non-members to pay the union an “agency fee” equal to nearly the full amount of annual dues (about $600 per year). 26
The rationale for requiring non-members to pay an agency fee is that since they “benefit” from the contract negotiated by the union on behalf of all employees in their “bargaining unit,” they should have to pay their share of contract negotiation and administration expenses. It is utterly irrelevant whether these non-members approve of the MEA-negotiated contract, or whether they believe they could have negotiated a better contract themselves; under Michigan law, they have no right to bargain independently for their own terms of employment. 27
Of course, the ability to compel financial support from workers whether they support the union or not is a major financial boon to the MEA, whose total revenue in 2001-2002 was nearly $60 million. 28
Not surprisingly, some teachers find that the MEA’s ability to compel support from members and nonmembers makes the union less responsive and less representative. As teacher and MEA member Cheryl Loss observed, “Because they run a monopoly that relies on forced payments, union officials can provide services to the membership that are deficient and feel no obligation to give straight answers to questions about the fundamental rights of their own members.” 29
That is one of the reasons the Mackinac Center has called for a “Teacher Bill of Rights” that would restore the right of individual teachers to bargain for their own terms and conditions of employment and free them from the obligation to provide financial support to a union they have no interest in joining. The MEA’s shrill denunciation of the Mackinac Center’s proposal to reform collective bargaining as “nothing less than a declaration of war on educators and support staff” 30
makes abundantly clear the MEA’s belief that public school employees should be compelled to support the union, whether they want to or not.
Another policy supported by the Mackinac Center but not the MEA is expanded financial accountability for public-sector unions. A bill now under consideration by the Michigan House of Representatives would require the State’s public-sector unions to disclose their finances in as much detail as publicly held corporations. 31
The idea that public-sector unions should have to be as accountable to their members and to the public as a publicly held company does not sit well with the MEA, which contends that the far less detailed disclosures it currently makes under federal law are sufficient. 32
Those disclosures, however, are not audited, and they are not detailed enough to enable non-members to determine the amount of the refund to which they are entitled for expenditures by the union on non-contract related activities such as public relations and political activism. 33
Perhaps most threatening to the MEA is the idea of school choice. Parents across the nation are embracing the idea that they should be able to choose the safest and best schools for their children. But teachers’ unions have a far different agenda; they understand that if they want to preserve their wealth and political influence, they must resist all forms of educational choice, from tuition tax credits to vouchers to charter schools. Indeed, the MEA led a successful campaign, which the MEA described to its members as “the fight of our lives,” to kill Michigan’s November 2000 voucher initiative. 34
In an internal document titled “Parameters,” the MEA resolved that it would remain “opposed to charter schools.” 35
The MEA’s single-minded and unreasoning opposition to any form of school choice is reflected in an incident that occurred when the Mackinac Center published a study titled “Educational Choice for Michigan,” which explained why educational choice is the most important reform that could be enacted. Despite the fact that he had not read the study, MEA chief lobbyist Al Short branded as “racist” anyone who supports private school choice plans such as vouchers. As Short told the Midland Daily News, “My reaction is that any group pushing for a voucher plan is basically racist in nature.” 36
The MEA resents the Mackinac Center not just for its ideas, but because the Center’s studies and investigations get results—results that have been costly and embarrassing to the MEA. For example, in 1993, the Mackinac Center issued a report that showed how the MEA pressured school districts to buy health insurance through the MEA’s wholly owned subsidiary, the Michigan Education Special Services Association (MESSA). 37
The report documented MESSA’s excessive costs and showed how the MEA used MESSA resources to bolster its political and organizational strength. Based on the concerns identified in the Mackinac Center report, the Michigan Insurance Bureau launched an audit of MESSA and its relationship with the MEA. In 1994 the Insurance Bureau refused a MESSA rate request because, as the Mackinac Center claimed, MESSA was charging school districts excessive administrative fees. The Insurance Bureau also ordered MESSA to return approximately $70 million of excess reserves to Blue Cross/Blue Shield, which MESSA was holding and earning interest on. 38
The MEA suffered another black eye when the Mackinac Center demonstrated the union’s breathtaking hypocrisy on the subject of privatization. In its role as enforcer of Big Labor policy, the MEA staunchly opposes any efforts by school districts to cut costs by “out-sourcing” school-related services such as custodians, bus drivers and food preparation. 39
In its role as cost-conscious employer, on the other hand, the MEA turned out to be a big fan of privatization. As the Mackinac Center found when it investigated the MEA’s Lansing headquarters, private companies – not unionized employees of the MEA – provided the union with all its custodial, food service, security and mailing functions. 40
Indeed, three of the four firms used were non-union, and the company that operated the MEA’s cafeteria was the very same firm that the union is trying to oust from many public school cafeterias. 41
Finally, the Mackinac Center has stepped in directly to prevent the MEA from trampling a teacher’s First Amendment right of association. In that case, a teacher named Frank Dame sent a letter to the MEA resigning his membership and objecting to the union’s collection and expenditure of any fee other than his “share of the union’s costs of collective bargaining, contract administration and grievance adjustment.” The union responded by telling Dame he could only resign from the union during a one-month window in August and it threatened a collection action for the balance of his dues if he failed to make timely payment. 42
Assisted by attorneys from the Mackinac Center, Dame filed an unfair labor practice charge against the MEA. In December 2000, the Michigan Employment Relations Commission found that the MEA had unlawfully rejected Dame’s resignation and ordered the union to reimburse him, with interest, for any dues overcharges occurring after April 1998. 43
These incidents show that the MEA has ample reason to resent the Mackinac Center for the negative effect the Center’s work has had on the MEA’s ability to operate with impunity in the state of Michigan. But while the MEA’s sense of frustration is certainly understandable, its decision to vent that frustration by attacking the Mackinac Center’s free speech rights is shameful.
Lashing Out at Choice Proponents
With the U.S. Supreme Court posed to decide the constitutionality of Cleveland’s school choice program, with more states providing education-related tax credits and with the increasing prevalence of charter schools and even home schooling, it is clear that school choice is an idea whose time has come. And not just the kind of school choice that has always been exercised by families with the financial means to move to suburbs with the best school districts or to enroll their children in private schools, but a genuine array of choices available to all, regardless of wealth. The trend toward greater choice is, however, anathema to teachers’ unions, whose wealth and political influence are directly tied to the number of children attending traditional public schools. Accordingly, teachers’ unions, and particularly the National Education Association and its affiliates, strongly oppose any measures designed to give parents educational options beyond the public school system.
Their opposition to parental choice takes many forms. In court, the National Education Association and its affiliates have challenged every voucher program created in the past decade. In Milwaukee and Cleveland, the teachers’ unions fought to ensure that children of low-income families would remain trapped in some of the country’s worst public school systems. In Florida, they are seeking to derail the first statewide program that enables parents to remove their children from failing public schools and send them to private schools using a state-funded voucher. The Milwaukee program survived the unions’ legal onslaught and continues to flourish; the Florida case is still pending in the trial court; and the U.S. Supreme Court is set to rule on the constitutionality of Cleveland’s program any day.
Teachers’ unions fight just as hard outside of court to keep parents from having educational options beyond traditional public schools. As discussed above, the Michigan Education Association mounted fierce opposition to an initiative that would have amended the state constitution to permit school vouchers. The California Teachers Association spearheaded a similar campaign against a state voucher program in 2000. But the involvement of teachers’ unions in political issues that have nothing to do with core union functions like contract negotiation and administration raises substantial concerns. As explained by Russ Billings, a teacher in Genesee County, Michigan, and member of the MEA, “The union uses our money for their pet political causes, which many members oppose, and resists any request for full and honest disclosure.” 44
In theory, unions are not allowed to use non-member “agency fees” to pay for things like public relations, lobbying and other activities not directly related to contract negotiation and administration. But many people are convinced that teachers’ unions employ a variety of strategies—from vague accounting standards to disguising political contributions—in order to circumvent that limitation. For example, in a recent case, the Michigan court of appeals found that the MEA may have violated state campaign finance laws when it charged the Michigan House Democratic Fund $61,000 for “political polling services” but then took no action to collect the “debt.” 45
In another case, the court of appeals affirmed that the MEA violated state campaign finance laws in 1994 when it contributed money to a political action committee with the understanding that the money would be used to pay off the legal bills of several state House candidates. 46
There are only 14 states in the country where no public employee may be compelled to support a union of which he or she is not a member 47
Michigan is not one of those states, and neither is Washington, which is the site of a disgraceful crusade by the Washington Education Association against a state think tank called the Evergreen Freedom Foundation. The Foundation’s research proved that the WEA had intentionally violated state campaign finance laws by spending non-member fees for political purposes, which led to a record fine of $400,000 48
—and the EFF recently sued the National Education Association, alleging that it, too, had broken the law by forcing non-members to support its political agenda. 49
Those incidents so infuriated the WEA that it launched a vicious media campaign against the EFF and its president, Bob Williams, featuring a full-page newspaper ad with a picture of man in a dunce cap beneath a large banner that reads “Dumb Ideas!” 50
Unfortunately for the WEA, its $90,000 media blitz has backfired rather spectacularly, with a number of newspapers editorializing against its tirade. 51
A major goal of teachers’ unions is to control the terms of the public debate over school choice. One way to do that is to pump huge amounts of money into lobbying, issue advocacy and other political activities, which they do. Another way is to smear anyone who challenges the unions and embarrasses them in public, as the WEA has done in Washington state. And now the Michigan Education Association is trying still another way to win the school choice debate through force rather than persuasion; it seeks to silence its opponents by dragging them into court when it doesn’t like what they have to say. But just like its sister organization’s ham-handed attack on the Evergreen Freedom Foundation, the MEA’s suit against the Mackinac Center is destined to fail.
Why the Institute for Justice is Involved
The Institute for Justice is a Washington D.C.-based public interest law firm that litigates nationwide to protect economic liberty, private property, school choice and the right to freedom of expression. In this case, the Institute is coming to the aid of a sister organization and fellow school choice supporter whose free speech rights are being threatened by a longstanding foe of educational reform.
The lead attorney in this case is Institute for Justice Senior Attorney Clark Neily, who litigates school choice, economic liberty and First Amendment cases nationwide. Prior to joining the Institute, Neily was an associate in the trial department of the Dallas-based law firm Thompson & Knight. He will be joined by William H. Mellor, president and general counsel of the Institute for Justice, and Dunn Foundation Fellow in Constitutional Litigation Steve Simpson. Assisting the Institute for Justice as local counsel is John Brown of Dykema Gossett, PLLC.
For more information, contact:
John E. Kramer
Vice President for Communications
Institute for Justice
(703) 682-9320 ext. 205
Mackinac Center for Public Policy