Written by Cathy Highet
AUD recently filed a friend-of-the-court brief in a Colorado Court of Appeals case called Security Officers Association v. Pariscoff. We hope the case will increase “anti-SLAPP” protection for union reformers in Colorado and across the nation.
Anti-SLAPP laws are a great tool for union reformers to know about. SLAPP stands for Strategic Litigation Against Public Participation. SLAPP lawsuits are a tactic people with access to money can use to intimidate activists who speak out against them. A SLAPP suit is a lawsuit based on speech, like a defamation claim. But the point of a SLAPP suit isn’t to win – it’s just to subject the targeted activists to the expense, stress and work of defending against a lawsuit.
To protect against SLAPP tactics, about 40 states have enacted anti-SLAPP laws. The details vary a lot from state to state, but here is a general idea of how anti-SLAPP laws often work.
The victim of the SLAPP suit – the defendant in the court case – files a motion at the beginning of the case saying they think the case is a SLAPP suit. The deadline to file this motion may be short, so if you are the victim of a SLAPP suit, it is important to get an attorney right away. AUD may be able to help if your case is part of a union reform battle.
If the court decides a lawsuit targets speech protected by the anti-SLAPP law, then the plaintiff (whoever filed the lawsuit) must show they’re likely to win the case. If the plaintiff can’t show that, the court throws the case out then and there. In many states, the plaintiff must also pay the defendant’s legal fees.
Anti-SLAPP laws often make a huge difference when they apply. Attorney fees in a court case can easily reach tens or hundreds of thousands of dollars, so having a way to pay them is crucial. The prospect of paying activists’ fees may deter some SLAPP suits. Also, by ending litigation quickly, anti-SLAPP laws can cut short a very stressful, time-consuming and expensive process. However, anti-SLAPP laws don’t prevent valid lawsuits from going forward, so it’s important for activists to be truthful. It’s also very useful for them to keep a record of how they knew their public statements were accurate.
But when do anti-SLAPP laws apply? Do they cover union reformers? That was the question AUD addressed in its brief.
Colorado’s anti-SLAPP law protects speech about an issue of “public interest.” In SOA v. Pariscoff, the defendant criticized his union’s leadership, claiming they handled dues money irresponsibly and violated members’ rights. The union (and three of its officers) sued him for defamation. They argued that Pariscoff’s speech was not protected by Colorado’s anti-SLAPP law because the union was very small and most people didn’t care whether its officers spent dues money wisely.
The Colorado District Court where the case was filed rejected this argument and dismissed the case, but the union appealed to the Colorado Court of Appeals. That is where AUD weighed in. AUD filed an “amicus” or friend-of-the-court brief. An amicus is someone (usually an organization) who won’t be directly affected by a lawsuit but cares about a general principle that will be affected – such as Union Democracy.
AUD’s amicus brief summarized the LMRDA and the Union Member Bill of Rights to the Colorado Court of Appeals. It explained that the LMRDA protects union members’ criticism of their officers, especially on issues such as how union dues are spent and whether the union is respecting its members rights. It quoted the classic case Salzhander v. Caputo which said, “Congress has decided that it is in the public interest that unions be democratically governed and toward that end that discussion should be free and untrammeled and that reprisals within the union for expression of views should be prohibited.”
The LMRDA does not require states to include union member speech in their anti-SLAPP laws, but AUD argued that Congress was right about the importance of union member speech. Before Congress enacted the LMRDA, union members’ democratic rights had little legal protection. A Congressional committee known as the McClellan Committee found “corruption, dictatorial practices and racketeering in some unions,” according to the U.S. Supreme Court.
Autocracy in unions hurts everyone. Of course it hurts union members, because everyone deserves free speech and democracy. Congress hoped the LMRDA would “bring to the conduct of union affairs and to union members the reality of some of the freedoms from oppression that we enjoy as citizens by virtue of the Constitution of the United States . . . . Such rights are basic. They ought to be basic to every person, and they are, under the Constitution of the United States.”
But autocracy also undermines the ways unions benefit the public. Healthy unions raise wages and improve working conditions by helping workers voice their demands collectively. But unions can’t do that unless they are “responsive to the desires of the men and women whom they represent,” according to the Supreme Court. In a few extreme cases, corrupt leaders use the unions they have captured as tools for crime.
The best cure for autocracy and corruption are democracy, transparency and free speech. When union members have access to information about their union and the right to organize freely, they can decide for themselves what they want their union to do and which officers will best help them do it. “It is through the speech of ordinary union members about day-to-day union issues that democracy flourishes, corruption withers, and the public interest prevails.”
AUD hopes these arguments will persuade the Colorado Court of Appeals to hold that union member speech is protected by Colorado’s anti-SLAPP law. If it does, union members in other states might be able to use the opinion too, although it will not be binding outside of Colorado. Of course, we won’t know whether the Court of Appeals will agree until its opinion comes out, which will be months from now. It is also possible that whoever loses at the Court of Appeals could ask the Colorado Supreme Court to weigh in.
A talented group of pro bono (volunteer) law students and attorneys researched and wrote the amicus brief on behalf of AUD. Thank you to all of them! If you would like to read a copy or are interested in helping with the next project, email us at info@uniondemocracy.org.
Cathy Highet is a Board Member of AUD and helped write the amicus brief in SOA v. Pariscoff.