Romancing the First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
—First Amendment to the Constitution

Back in the 1980s and 1990s, when I was editor of a union newspaper, I got into a nasty row with a union member (“Fred”) over an editorial decision.  Fred insisted that my rejection of an article he’d submitted was a violation of his right to free speech as guaranteed by the First Amendment.  He called our decision “censorship,” and threatened to sue me.

Although we encouraged rank-and-file submissions, we, like any other functional publication—even one as modest as ours—reserved the right to edit or reject them.  That said, the overwhelming majority of submissions were accepted.  We probably rejected a grand total of three or four articles.  Four articles in eight years.

Fred’s essay was an anti-union screed.  His central premise was that labor unions were bad.  They were bad because they insisted that workers be promoted on the basis of seniority rather than merit, and they were bad because this arrangement cut into a company’s profit because it kept the “more productive” employees from rising to the important jobs, basically ruining everything.  Not only was it a stupid argument, but the last place you’d expect to see it was in a union newspaper.

Before rejecting it, I tried to reason with him, pointing out that management already had the right to recruit, hire, train, re-train, qualify, promote, demote and fire its employees.  They already had that right. However, if we didn’t establish fixed procedures—if we didn’t have progression ladders based on something resembling seniority—managers could play games with whom they wanted to promote.

Indeed, without seniority provisions, it was unlikely we’d have a fair number of African Americans, older workers, and women working in the top jobs….and performing very well in those positions.  Also, let’s be clear.  The only thing seniority gives you is first crack at the higher job.  If you can’t perform that job satisfactorily, you get yanked from it.  Simple as that.  So what’s the big deal?

To his credit, Fred more or less grudgingly agreed with the points I raised.  But even after being semi-convinced that his premise was badly flawed, his attack instantly shifted to one based on his rights under the First Amendment.  The man honestly believed that the Bill of Rights required us to print anything that he, a dues-paying member, submitted.

Alas, I had a short fuse when it came to this bullshit.  I’d heard these bogus First Amendment arguments before, for everything from an employee insisting he shouldn’t have to adhere to the company dress code, to having the right to use profane or politically incorrect language, to having the right to speak up without permission at a formal company-sponsored presentation.

I even had a person tell me with a straight face that we Americans shouldn’t be required to qualify for a driver’s license, because the First Amendment guarantees us the right to “free choice.”

But, oddly, this First Amendment fetish also worked in our favor.  Following a series of articles savagely critical of recent management decisions, the Human Resources officer (“Greg”) contacted me and said that, even though he understood the union’s objections, it was wrong of us to express our views so shrilly in a newspaper being circulated on company property.

He cautioned me that we were being allowed to circulate the paper within the facility largely as a courtesy.  And he was absolutely right.  We had no more of a constitutional right to circulate our newspaper on company property than to bring in homemade cookies and sell them in the company cafeteria.

But I gambled on his ignorance of the First Amendment.  Taking a page from Fred’s playbook, I said, “So you’re telling me that the union has no right to free speech?”  He looked at me with concern.  I continued.  “Jesus Christ, Greg, doesn’t the First Amendment mean anything to you guys?”

And that was pretty much it.  He backed off.  The paper stayed.  Score one for the wildly misinterpreted First Amendment.

David Macaray, a Los Angeles playwright, is the author of “It’s Never Been Easy:  Essays on Modern Labor”. He served 9 terms as president of AWPPW Local 672. He can be reached at       

David Macaray is a playwright and author. His newest book is How To Win Friends and Avoid Sacred Cows.  He can be reached at