Neutrality or Censorship?

Last week, the San Francisco Chronicle fired one of their reporters, Henry Norr, a technology reporter for the newspaper. That alone is not particularly newsworthy, especially since the reason given by the Chronicle for doing so was that Norr falsified his timesheet. However, Norr has claimed the real reason he was terminated was for speaking out against the war in Iraq, and tellingly, the Chronicle has recently revised its policy relating to staff participation in political activity. (See AP article.) Many people during this most recent conflict have held strong opinions about the war, some of which have greatly diverged from the opinions held by coworkers and their employers. For those who speak out and find themselves in hot water, are there any legal protections? And are there (and should there be) different standards for journalists than other employees who have an opinion about the war or who want to participate in political demonstrations?

An anti-war demonstration was planned in San Francisco for the next business day after the war started, which was March 20. Participants were encouraged to participate in non-violent protest to disrupt traffic and commercial activity to draw attention to the issues raised by the American invasion of Iraq. The night before the protest, Henry Norr e-mailed his supervisor to notify the Chronicle that he would not be at work on March 20, because he and his wife, Jean Tepperman planned to participate in the anti-war protest. (See Bay Guardian article.) On March 20, Norr did participate in the protest, and he and Tepperman were arrested. He was released that evening, and returned to work the next day, to complete work on his regular column. He also filled out his time sheet, designating March 20 as a sick day. He explained his use of a sick day as follows:

I filled out my time card and on my time card, I claimed the day I’d spent in jail as a sick day. I did that for a variety of reasons. Partly because were organizing a call-in-sick campaign, and I thought I would join with that. Also, I was feeling sick, as I told the Chronicle. I was feeling nauseated by the lies and the arrogance and the racism. I was feeling deeply depressed. All kinds of reasons. And of course, by the time work started, I was in a lot of pain because the cop had twisted my arm in trying to get me to move. And I will point out that there’s no official definition in the union contract or in any other personnel policy document that I’ve been able to see that defines what constitutes a sick day. People at the Chronicle, as with every other place I’ve ever worked and I’m 57 years old, people take sick days for a variety of personal purposes. They need to fix their car or they need to see a lawyer or whatever. Well I needed to get out there and do my little part to oppose the war.

See Democracy Now! radio show transcript.

After turning in the column to his editor, Norr was notified that the column would not run, and that he could not write for the Chronicle until further notice. He was first notified that he was suspended indefinitely without pay. However, his union, the Northern California Media Workers Guild, demanded that his suspension be for a definite term, so it was changed to a two-week suspension. (See S.F. Examiner article.) At the end of the suspension, Noor was fired, and is now grieving his termination. While Norr’s suspension was pending, the Chronicle also changed its policy concerning staff participation in political activity. At the time of Norr’s arrest last month, Chronicle policies did not ban participation in demonstrations. The paper’s ethics policy stated that “the Chronicle does not forbid employees from engaging in political activities, but needs to prevent any appearance of a conflict of interest.” This policy asked Chron employees to consult with supervisors before engaging in any war-related protest. (See Chronicle opinion piece.) This policy was in effect for about a week, and then scrapped in favor of a policy that prohibited any war-related protest. This change in policy is also being grieved by the newspaper union. (See S.F. Examiner article.)

Noor, who now has much more time to engage in anti-war protests, is also challenging his termination under a California law which makes it illegal for an employer to discriminate on the basis of political activity. (See California Labor Code sect. 1101-1102.) He has filed a discrimination claim with the state Labor Commissioner’s office (also known as the Division of Labor Standards Enforcement (DLSE). Clearly, Noor is benefiting from membership in his union, which is advocating on his behalf, and from being a California resident, protected from discrimination on the basis of political activity, which is not the case in many other states. However, Norr’s case may hinge on how the Chronicle has previously enforced its sick leave policy, since that was the official reason for his termination. Regardless of what happens to Norr, it is probably not wise to take sick leave days to participate in demonstrations or other personal business, even though other employees abuse the company’s sick leave policy.

Setting the sick leave issue aside, should employees who participate in political protests be subject to termination by their employers? Some may argue that journalists should be held to a higher standard than other employees, because of the need to appear neutral and avoid perceived conflicts of interest. Journalists’ codes of ethics often include statements such as “journalists should avoid conflicts of interest, real or perceived; and remain free of associations and activities that may compromise integrity or damage credibility.” (See Society of Professional Journalists code of ethics.) Should this, however, depend upon the topic upon which the reporter typically writes? It makes sense that newspaper editors would want their political reporters to stay out of the fray at anti-war rallies or city council meetings, but censoring the views of a tech writer on political issues seems to be going to far, as it’s not particularly reasonable to fear that the readership would question Norr’s objectivity on tech matters. That might require “more neutrality” from generalists than specialists, and also might discourage reporters from developing specialties that arise from their personal interest in a subject, but it seems like a reasonable way to balance the journalist’s right to be a participating citizen in a democracy with the newspaper’s interest in appearing objective. Similarly, it seems reasonable for a newspaper to forbid their technology and business writers from owning stock in the companies about which they write, but not to have such requirements for their advice columnists and cartoonists.

It remains to be seen whether what happened to Norr is a trend that will happen elsewhere in the workplace, or whether it will be confined to the journalism world. There is some indication it is happening elsewhere, but these complaints may not rise to the level of terminations and/or lawsuits. (See Sacramento Bee article.) And with the conflict in Iraq winding down, perhaps the domestic storm has also passed.

Workers should be aware, however, that workplace protections for speaking out are not particularly strong. A popular misconception is that employees have a “First Amendment” right to speak their minds; however, the First Amendment only applies to public employees, not those working for a private employer, and only then in fairly limited circumstances. The Chronicle is a private employer, and despite the irony of a newspaper demanding First Amendment rights for itself yet denying them in spirit to its employees, it may be free to do so, assuming that neither the union agreement or California law ultimately apply, which is yet to be decided. Employees who speak out on any controversial subject in the workplace may be willing to run the risk of termination, but it is a significant risk in some workplaces nonetheless.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.