You might think it impossible for a United States Court of Appeals to overrule the United States Supreme Court. It’s supposed to be the other way around, right? Higher courts overrule lower courts.
That’s what we were taught in law school anyway.
In 1937, the United States Supreme Court held in Associated Press v. NLRB held that the National Labor Relations Act does not infringe upon the First Amendment guarantee of freedom of the press. In Associated Press, the employer argued that:
Does the statute, as applied to the petitioner, abridge the freedom of speech or of the press safeguarded by the First Amendment? We hold that it does not. It is insisted that the Associated Press is in substance the press itself, that the membership consists solely of persons who own and operate newspapers, that the news is gathered solely for publication in the newspapers of members. Stress is laid upon the facts that this membership consists of persons of every conceivable political, economic, and religious view, that the one thing upon which the members are united is that the Associated Press shall be wholly free from partisan activity or the expression of opinions, that it shall limit its function to reporting events without bias in order that the citizens of our country, if given the facts, may be able to form their own opinions respecting them. The conclusion which the petitioner draws is that whatever may be the case with respect to employees in its mechanical departments it must have absolute and unrestricted freedom to employ and to discharge those who, like Watson, edit the news, that there must not be the slightest opportunity for any bias or prejudice personally entertained by an editorial employee to color or to distort what he writes, and that the Associated Press cannot be free to furnish unbiased and impartial news reports unless it is equally free to determine for itself the partiality or bias of editorial employees. So it is said that any regulation protective of union activities, or the right collectively to bargain on the part of such employees, is necessarily an invalid invasion of the freedom of the press.
The Court answered this absurd contention as follows:
The business of the Associated Press is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. He must answer for libel. He may be punished for contempt of court. He is subject to the anti-trust laws. Like others he must pay equitable and nondiscriminatory taxes on his business. The regulation here in question has no relation whatever to the impartial distribution of news. The order of the Board in nowise circumscribes the full freedom and liberty of the petitioner to publish the news as it desires it published or to enforce policies of its own choosing with respect to the editing and rewriting of news for publication, and the petitioner is free at any time to discharge Watson or any editorial employee who fails to comply with the policies it may adopt.
In other words, the media, in general, and the press specifically, aren’t immune from complying with the national labor laws just because they hold some special status under the First Amendment to the Constitution.
And so things stood for seventy three years until yesterday.
In McDermott v. Ampersand Publishing, the United States Court of Appeals for the Ninth Circuit considered a District Court’s denial of an injunction request by the National Labor Relations seeking to reinstate employees of a newspaper who had been discharged during a union organizing drive. The District Court ruled that granting the injunction would result in a “significant risk of [a] First Amendment violation.”
Amazingly, the Court of Appeals agreed with the District Court!
This is simply wrong as a matter of law. This decision is beyond the wildest imagination of even the most dedicated anti-union lunatic fringe. As one commenter has noted, this decision “illustrates the federal courts lack of knowledge about how federal labor law works.”
I can’t believe this decision will stand if the NLRB petitions the Supreme Court for review.