Michigan Appeals Court to Hear Free-speech Case

Washington, DC — Michigan Education Association (MEA) President Luigi Battaglieri declared at a media conference (which he called) that he admired what the Mackinac Center for Public Policy — a rival organization — had done. Media conferences are normally events where speakers expect to be quoted; nonetheless, Battaglieri and his union filed a lawsuit to keep that quote quiet. A Michigan appeals court took the unusual step of stopping a trial court from hearing the case so it could decide for itself the validity of the case on its merits. The Michigan Court of Appeals will hear the case Thursday, February 5, in Lansing.

On September 27, 2001, Battaglieri said, ". . . 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 then drew from that quote in a letter to its supporters and potential supporters pointing out that even an individual who usually disagrees with them has recognized the Center’s effectiveness.

The two organizations often debate issues in the court of public opinion, but in this instance, the MEA and its president sought to use the courts of law to stifle debate. The MEA claimed the Mackinac Center "misappropriated" Battaglieri’s "likeness" by using the quote in a year-end fundraising newsletter. The Mackinac Center and the Institute for Justice, which represents the Center free of charge, say the lawsuit represents a blatant attack on free speech.

"Mr. Battaglieri and his union are attempting to use the courts to stifle public debate," said Clark Neily, a senior attorney with the Institute for Justice. "In their lawsuit they claim the Mackinac Center has no right to inform supporters and potential supporters of the truth: that Mr. Battaglieri acknowledged to a room full of reporters how effective the Center has been in its work. Of course, that’s absurd. The Mackinac Center has every right to accurately quote the MEA’s president when he praises the effectiveness of its work."

The lawsuit has been winding through the courts since the lawsuit was filed on March 8, 2002. The parties then filed cross-motions for summary disposition (essentially motions asking the court for a speedy decision based on the briefs filed) by October of that year and the trial court judge denied both in December 2002. The following January, the Mackinac Center and the Institute for Justice asked the Michigan Court of Appeals to hear the case on its merits before the lower court conducted a trial. The appeals court accepted that motion in July 2003 and the case is now going to be argued before the court February 5.

"It is ludicrous to demand that a public policy institute get permission from its opponents to quote them," Neily said. "The First Amendment case law on this point is so clear that it makes you wonder what’s really going on. If MEA officials think they can silence speech they don’t like with frivolous lawsuits like this one, they are sadly mistaken."

"The MEA is suing because independent research threatens the union’s bottom line," said Joseph Lehman, Mackinac Center executive vice president. "Mackinac Center research has shown some of the harmful effects of compulsory unionism and the benefits of school choice. Our analysts have proposed that no teacher be forced to financially support a union as a condition of employment. Any organization dependent on compulsory support might feel threatened by that."

In its newsletter last April, the union told its 159,000 members to "unsubscribe" to Michigan Education Report, a quarterly published by the Mackinac Center and sent to teachers for free. Lehman said, "Apparently the MEA doesn’t want teachers to read news that isn’t filtered through the union."

Interestingly, the MEA and its president do not hold themselves to the same standard they demand of the Mackinac Center. Battaglieri admitted that his MEA used the names of Arnold Palmer, Jack Nicklaus and Tiger Woods without seeking or receiving their permission to promote an MEA golf tournament fundraiser. The exact statement published by the MEA went as follows:

"Palmer, Woods, Nicklaus and Battaglieri.
Truth be told, this may be the only time that MEA President Lu Battaglieri’s name will ever be mentioned in the same breath with these gods of golf.
And because Palmer, Nicklaus and Woods aren’t available to play in MEA’s Scholarship Fund golf outing on June 20 at Royal Scot in Lansing, Battaglieri is looking for three players to fill out his foursome."

Neily said, "Using professional golfers’ names without permission is merely one example of how the MEA seeks to apply one set of rules to its own speech and a far more restrictive set of rules to the Mackinac Center’s speech." The Institute for Justice can provide additional documented examples discovered during the lawsuit.

The Mackinac Center for Public Policy is a 16-year-old nonprofit, nonpartisan policy research institute that studies state and local policy questions on topics including education, labor law, fiscal policy, economic development and the environment. The Institute for Justice is a nonprofit public interest law firm that litigates in defense of free speech and other constitutional rights.

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[NOTE: To arrange interviews on this subject, journalists may call Lisa Knepper, the Institute for Justice’s director of communications, at (202) 955-1300 or in the evening/weekend at (703) 597-2523. For an online media kit, please visit www.ij.org and click Online Media Kits for Journalists.]

Television and radio reporters wishing to cover Thursday’s oral argument must request written permission no later than Monday, February 2. Media can download the request form from the Michigan Court of Appeals website at http://courtofappeals.mijud.net/resources/mediainfo.htm. IJ spokespersons can help provide the case number and other details requested on the form.