The following is an interview by Jon Perdue, managing editor of Michigan Education Report (MER), of Lawrence W. Reed and Joseph G. Lehman. Reed (LWR) is president of the Mackinac Center for Public Policy and Lehman (JGL) is the Center’s executive vice president. The interview, conducted on March 31, concerns the resolution of a lawsuit pursued unsuccessfully against the Mackinac Center by the Michigan Education Association. The deadline for the MEA to appeal the ruling is today, April 9, 2004.
MER: The Michigan Court of Appeals handed down a ruling on March 18, 2004, that many see as a “slam-dunk” for the Mackinac Center for Public Policy. It dismissed a two-year-old lawsuit by the Michigan Education Association (MEA), stating that the lower court should have thrown out the case. What was the genesis of this controversy and why is the outcome so important?
JGL: Yes, indeed, the ruling was a slam-dunk, unanimous and unequivocal. It all started with a very public news conference called in September 2001 by Luigi Battaglieri, president of the MEA. He announced the formation of a new, union-sponsored “think tank” whose first public act was to publish a document criticizing the education policy research of the Mackinac Center.
From his podium, at his news conference, before a crowd of TV, radio, and newspaper reporters, he paid our organization the following compliment:
“. . . quite frankly, I admire what they [the Mackinac Center] 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 . . . .”
The Mackinac Center used part of that quote in a letter to its supporters and potential supporters, pointing out that even an individual who usually disagrees with the Center has recognized how effective we’ve been.
The MEA never disputed our accuracy in quoting Mr. Battaglieri, and we put his quote in proper context (as the Court duly noted) by pointing out in the same paragraph that the MEA “is generally at odds” with us on policy issues.
But amazingly, the MEA filed a lawsuit, claiming we had “misappropriated” Mr. Battaglieri’s name and placed him and his organization in a “false light.” An Ingham County [Michigan] circuit court judge, later found by the appeals court to have erred, decided not to throw out the case and ordered it to trial instead.
But it never got to trial. The Michigan Court of Appeals intervened and put a stay on the lower court process until it could decide whether to throw out the case. And the appeals court did throw out the case on March 18.
MER: So why is this case important? Why should anybody outside of the MEA and the Mackinac Center care?
JGL: First, everyone should care when freedom of speech is at stake. Had the MEA won this case, it would have sent an intimidating chill over public policy debate across the state and country. Can you imagine a world in which you couldn’t even quote what someone says to a room full of reporters at his own news conference?
Second, MEA members should care when their leaders waste their money and give teachers a bad name. The custodians, bus drivers, food service workers, teachers and other good, hard-working citizens who make up the MEA membership probably don’t like it when their leaders spend the union’s time, money and energy in an embarrassingly silly, losing effort that jeopardized First Amendment rights.
Third, public policy and nonprofit groups like ours care because we are seeing a disturbing trend among organized labor to try to shoot the messengers they don’t like instead of debating the message like adults in a free society. There’s nothing wrong with calling a news conference to criticize the Mackinac Center or anybody else. There is something very wrong with suing the people who accurately repeat what you actually say.
Hopefully, this firm ruling sends a message the MEA will not soon forget.
MER: Let’s talk about the ruling itself again. When the Court of Appeals dismissed the MEA’s complaints by a vote of 3-0, did that mean that the case was so utterly without merit that it was tossed out even before it could go to a jury?
LWR: That’s exactly right. It was frivolous from the start. The Court made it plain that the MEA produced absolutely no evidence — zero, zip, nada — to prove the Mackinac Center’s letter attempted to mislead its readers into believing the union president endorsed the Center’s overall mission. That was always a ludicrous assertion.
Our letter specifically told readers that the union and the Mackinac Center frequently disagree. And anybody with the slightest knowledge of the education reform debate in Michigan would know that fact anyway.
The court concluded that it was “highly unlikely” that anyone would so misconstrue our letter, further explaining that it would require a “strained reading” to do so. The Court stated that our letter fell “squarely within the protection of the First Amendment for discourse on matters of public interest.”
This lawsuit was a profound embarrassment for the union from start to finish, which may explain why you won’t find anything about it on the union’s Web site. They don’t seem to want to talk about it unless pressed, and we believe its officials should be pressed to disclose to its members exactly how much of their compulsory dues money was spent to fight freedom of speech. MEA members and other interested citizens are already asking us that very question and writing letters to the editor asking it of the MEA leadership.
The Detroit Free Press was right-on when it editorialized on March 26, praising the ruling as “an unqualified victory for free speech” and questioning the union’s use of resources.
JGL: The Court of Appeals affirmed an important principle. You can’t just drag somebody in front of a jury because you say something at a news conference and later decide you don’t want someone to repeat what you said. Such a principle is critically important to protect the little guy who doesn’t have tens of millions of dollars in compulsory union dues to play with.
MER: Do you believe the MEA may have filed the suit in the first place simply to harass the Mackinac Center, intimidate you into silence on education issues, or force you to spend money in your own defense?
JGL: We can’t think of any other more plausible reasons. The irony is that if indeed those were the motivations, it certainly seems to have backfired! Our staff and supporters have never been more committed to advocating school excellence and educational freedom. The MEA lawsuit was a big reminder that our work over the years has had real impact. After all, the union probably wouldn’t have tried to silence us if we did not have an influential voice. And the MEA’s lawsuit gave us a national platform from which to win an important victory on behalf of First Amendment freedom!
We did not allow this lawsuit to silence or mute our research. We’ve continued to publish research and speak out on school choice and education reform issues, without a moment’s hesitation. And our legal defense was provided free of charge by one of the finest public interest law firms in the nation, the Institute for Justice.
Perhaps the greatest irony is that Mr. Battaglieri’s quote received vastly more publicity because of the lawsuit than anything we could ever have done on our own. The great majority of hundreds of newspaper, radio, and TV stories about the lawsuit repeated the Battaglieri quote the MEA tried to suppress!
And as revealing as that quote is, it’s dwarfed by the value of other things the union president said in several hours of deposition under oath that we are eager to let people know about.
LWR: Meantime, the union-backed group Battaglieri announced at that news conference back in 2001 has been virtually invisible. I think the Mackinac Center wrote more about it than the media who attended the news conference!
Nationally syndicated columnists George Will [Washington Post] and Jeff Jacoby [Boston Globe] came to our defense, as did many editorials in the Michigan media and even MEA members themselves.
The Detroit Free Press, Detroit News, and Lansing State Journal editorial boards all publicly condemned the MEA’s lawsuit and agreed with us that the court should throw it out. The Lansing State Journal editorial said the MEA “gives new meaning to the term ‘frivolous lawsuit.’” I am not aware of a single editorial, columnist, or even letter to the editor from anyone who defended the MEA’s ridiculous lawsuit. This adds up to a huge public relations embarrassment for the union. Interested parties can see some of the media coverage at www.mackinac.org/4356.
MER: Might there be a case here for the MEA to be sanctioned by the courts for filing a frivolous lawsuit? Does the Mackinac Center plan to press that issue and perhaps recover any costs associated with the case?
JGL: We are considering that option, but not because we need to recoup what we spent to defend free speech. The Institute for Justice led our defense on a pro bono basis, so we have no significant out-of-pocket expenses to recover.
If we decide to press for sanctions, it would be only to serve as a deterrent against future costly legal abuses by the union. Recently, the union levied the maximum allowable dues increase on teachers because of a large operating deficit, so members might appreciate anything that might cause union officials to think twice before spending their money on frivolous lawsuits.
MER: What are some of those interesting things Battaglieri said under oath in the depositions?
JGL: First, Mr. Battaglieri – the man who sued us for using his name and quote without his permission in our fundraising letter – admitted that his union used the names of famous celebrities without their permission to promote a union fundraiser. Second, he affirmed, this time under oath, that he believes the Mackinac Center is influential, especially on education issues among legislators. And third, Mr. Battaglieri admitted that his union’s website makes statements about the Mackinac Center that he himself does not even believe and that he has no facts to support those website statements.
MER: Wow. Can you give some details?
JGL: Certainly. Union officials still maintain that the Mackinac Center improperly used Battaglieri’s name for commercial purposes. During the depositions, however, our attorney produced an ad the MEA posted on its Web site for a golf-outing fundraiser. Mr. Battaglieri had to acknowledge that his union had used, without permission, the names of famous golfers “Woods,” “Nicklaus,” and “Palmer” to promote the fundraiser.
Imagine the irony at that moment: Mr. Battaglieri on the one hand was arguing that the Mackinac Center should have secured his permission to accurately quote something he said about us at a public news conference, but on the other hand it was perfectly alright for his organization to appropriate the names and likenesses of those three super-celebrities for the MEA’s fundraising purposes. The transcript of his deposition reads in places like a Saturday Night Live script.
Mr. Battaglieri also said under oath that in his opinion, the Mackinac Center was one of the top two most influential organizations in the state on education issues. Also under oath, he said the Mackinac Center was “very influential” among legislators, and “influential” in policymaking and with [then] Gov. Engler. That seemed consistent with his press conference quote that he “admired” what the Mackinac Center has done, only better and more detailed.
At another point, Mr. Battaglieri seemed as if he thinks everybody knows how influential the Mackinac Center is. He said, “… who wouldn’t admire what the Mackinac Center has been able to do in terms of getting their message to the legislature uncontested….”
At a later point, our Institute for Justice attorney asked Mr. Battaglieri to comment on numerous sections of the MEA’s website that refer to the Mackinac Center. This union president actually contended that it was appropriate for the MEA to use its website to publicly accuse the Mackinac Center of being “deceitful,” “intent on destroying public education,” and of using an “attack and deceive mode of analysis” even when MEA has no facts to support those characterizations and when he himself disagrees with them.
It was simply breathtaking to hear him admit that the material on his own website can’t be trusted. Good teachers deserve better leadership from their union than that.
MER: Did the MEA have a response to the court’s ruling when the judges tossed the lawsuit on March 18?
LWR: The MEA’s director of communications, Margaret Trimer-Hartley, had the difficult responsibility of putting the union’s most imaginative spin on it.
The MEA does not plan an appeal to the state Supreme Court, she said, because, “We believe with the conservative nature of that court we’ll be unlikely to prevail.” Of course, the Court’s composition is precisely the same as it was when her union filed the lawsuit two years ago. Was she suggesting that if the Court were more “liberal,” the First Amendment would not fare as well?
Trimer-Hartley argued that the ruling suggests the MEA or other organizations could mine news reports or public documents to find statements that could be perceived as beneficial for promotional purposes. “It leaves a lot of leeway. We see a door opening here,” she told The Midland Daily News.
That “door” is called the First Amendment. It’s been in the Constitution since 1789. I’m sure there are some civics teachers out there who will make sure Trimer-Hartley gets a copy.
MER: All of this begs the question, “Why would a powerful teacher union with tens of millions of dollars in compulsory dues and a payroll of hundreds want to take on a think tank with 30 employees?”
LWR: I don’t think this case can be fully understood outside the context of a rich history of MEA opposition to Mackinac Center work. For sixteen years, we have advanced public debate and policy through research and commentary that the MEA simply doesn’t like. The union has suffered a number of public setbacks as a result of our research.
We were first in the state to advocate charter schools. We’ve been in the forefront of all aspects of the education reform debate, from election consolidation to parental choice to curriculum improvements. We’ve championed the rights of teachers to have freedom of choice in labor representation. The Wall Street Journal has called the Mackinac Center the “nation’s leading advocate” for a universal education tax credit.
In the 1990s we published a study showing how the MEA pressured school districts to buy gold-plated health insurance through the union’s wholly-owned $600 million subsidiary, MESSA. Based on concerns raised in our report, the Michigan Insurance Bureau launched an audit of MESSA and its relationship with the MEA.
The Insurance Bureau then refused a MESSA rate request because, as our report 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.
These things don’t sit well with the people at MEA headquarters who take home six-figure salaries. We make our work available to other think tanks across the country and work with them to adapt it to their respective states, and I would guess the union hierarchy isn’t very happy with that either.
JGL: We litigated an important case on behalf of a West Branch teacher, securing in December 2000 an unequivocal ruling of the Michigan Employment Relations Commission that MEA members can resign from the union (though they still must pay an “agency fee”) any time of the year, not just during the month of August as the MEA had strangely insisted.
LWR: There is so much that could be said about this history that rather than try to restate or summarize here, we would like to refer readers to a superb “Litigation Backgrounder” prepared in May 2002 by our friends at the Institute for Justice.
MER: Is there anything else either of you want to say?
LWR: We both want to express our deepest gratitude and admiration for Clark Neily, our lead attorney, and the organization for which he works, the prestigious Institute for Justice. They are one fantastic outfit. They enjoy and deserve support from all citizens who believe in the Constitution and the free society. We just can’t say enough good about them. And likewise our friends at Dykema Gossett, a Lansing law firm that worked with the Institute for Justice. Many thanks to all those good folks.
JGL: And thanks also to the many people all across the state and country who wrote or called us with their support during the course of this lawsuit. Many of them were MEA members, and we know that takes courage. Our hats are off to them! Thanks also to our faithful supporters who increased their contributions when they learned the MEA was trying to bully us. Unlike the MEA, we can’t rely on an automatic cut of teachers’ paychecks for our funding. Our support comes one hundred percent from voluntary contributions.
LWR: To the “bottom line” of this case, I would only add this: Call a news conference, prepare to be quoted. Don’t delude yourself into thinking that a no-merit lawsuit can substitute for honest debate in the public square. And by all means, check your Web site before you go into deposition.
MER: Thank you, Mr. Reed and Mr. Lehman.
Michigan Education Report is a quarterly journal of news and analysis for parents, educators, and policy makers, published by the Mackinac Center for Public Policy. Jon Perdue is its managing editor.