Master Printers of America v. Donovan

• Citation: 751 F.2d 700
• Decision Date: 26 December 1984
• Docket Number: No. 82-1990,82-1990
• Parties: 118 L.R.R.M. (BNA) 2049, 53 USLW 2336, 102 Lab.Cas. P 11,280 MASTER PRINTERS OF AMERICA, Appellant, v. Raymond J. DONOVAN, Secretary of Labor, Appellee. The Center on National Labor Policy, Inc., Amicus Curiae. Chamber of Commerce of the United States, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 700

751 F.2d 700

118 L.R.R.M. (BNA) 2049, 53 USLW 2336,

102 Lab.Cas. P 11,280

MASTER PRINTERS OF AMERICA, Appellant, v. Raymond J. DONOVAN, Secretary of Labor, Appellee The Center on National Labor Policy, Inc., Amicus Curiae Chamber of Commerce of the United States, Amicus Curiae.

No. 82-1990.

United States Court of Appeals Fourth Circuit.

Argued Feb. 8, 1984.

Decided Dec. 26, 1984.

Francis T. Coleman, Washington, D.C. (Elizabeth L. Lewis, Boothe, Pritchard & Dudley, Alexandria, Va., on brief), for appellant.

Michael Ernest Avakian, North Springfield, Va. (Jeanette P. Papillo, Rockville, Md., The Center on Nat. Labor Policy, Inc., on brief), for amicus curiae in support of appellant.

Allen H. Feldman, Washington, D.C. (Francis X. Lilly, Deputy Sol. of Labor, Karen I. Ward, Associate Sol. for Special Appellate and Supreme Court Litigation, Charles I. Hadden, Counsel for Appellate Litigation, Elaine D. Kaplan, Dept. of Labor, Washington, D.C., on brief), for appellee.

Cynthia Wicker, Stephen A. Bokat, Nat. Chamber Litigation Center, Inc., Washington, D.C., on brief, for amicus curiae the Chamber of Commerce of the U.S.

Before RUSSELL and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

ERVIN, Circuit Judge:

Master Printers of America (MPA) (Association) is a national trade association that serves approximately 5,000 non-union commercial printing companies around the country. In 1978 MPA filed suit in federal district court challenging the authority of the Secretary of Labor to require the Association to file reports under Section 203(b) of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. Sec. 433(b) (1976) (LMRDA) (the Act) (the Statute). The Secretary responded by seeking an injunction to compel compliance. The suits were consolidated in the form of cross motions for summary judgment and the lower court granted the Secretary's motion. On appeal this court reversed, concluding that an unresolved factual dispute existed over whether MPA's activities fell within the scope of Sec. 203(b). Following a trial, the district court ruled on remand that MPA's activities were covered by the Act.

MPA appeals for a second time, arguing that the district court's findings were erroneous and that Sec. 203(b) was unconstitutional because it violated MPA's first amendment rights. We affirmed the lower court's factual findings, but remanded for an initial determination of the constitutional questions. On remand for the second time, the district court concluded that Sec. 203(b) was constitutional. MPA now appeals that decision. We affirm.

I.

MPA's membership consists of approximately 5,000 employers who employ about 200,000 employees. Local associations recruit new members, who then become automatically affiliated with MPA, and arrange for participation in various MPA programs. One such project is MPA's Craftmanship Program, initiated in 1950 to recognize and reward employee excellence through awards of Craftsmanship certificates to experienced workers nominated by their employers and positively evaluated by an expert panel. Roughly one-fifth of the MPA membership (900 employers) participates in this program; there are currently about 12,000 certified Craftsmen.

Craftsmen receive a permanent free subscription to the MPA-edited magazine, "Insight," a quarterly some 14-16 pages in length featuring items of general interest to the printing industry. "Insight" goes directly to employees' homes, at addresses furnished by their employers. In a pamphlet for employers entitled "How MPA Serves You," the subjects of "Insight" are said to encompass "technological improvements ..., trends of products or processes, profit facts, advantages of the open shop, human-interest stories, awards events, and similar articles." Among its other publications MPA produces some documents, distributed to employers and employees, with strong anti-union focus.

Section 203(b) of the Act requires any person who enters an agreement with an employer to engage in union or open shop "persuader activity" to disclose the arrangement by filing appropriate forms with the Secretary of Labor. ¹ When we remanded this case for the first time, the district court concluded that MPA and the employer-participants in the Craftsmanship Program had entered into a persuader agreement that subjected MPA to the reporting requirements of the Act. The court found that the persuader articles appearing in "Insight" were "unabashedly anti-union," and rejected as incredible "the employers' asserted lack of awareness and lack of concern about the content of a publication which they know goes directly to their employees' homes at the employer's direction."

On the second appeal MPA did not limit its challenge to the validity of these findings. Rather, the association charged that the statutory reference to persuader activity in the Act was unconstitutionally vague; the registration requirement amounted to content-based prior restraint; the disclosure requirements infringed MPA's freedom of association; and Section 203(b) had been improperly applied to the Association's pure speech. Following our decision to remand for a second time MPA refined its constitutional claims and presented new evidence to support those claims.

The Association presented essentially three arguments to the district court. First, it contended that the Act infringed its first amendment rights of speech and association by creating "a substantial deterrent effect on continued MPA membership by numerous employers." MPA offered evidence that in recent years union leaders had depicted the trade association as a "union busting organization." Forced disclosure of membership and contribution lists, MPA contended, would deter current members from participating in MPA programs, jeopardize efforts to recruit additional members, and thereby unconstitutionally burden its speech activity. Second, MPA argued that the Statute was void for vagueness. An "Insight" columnist, Mr. Doesburg, testified that since the outset of the lawsuit he had avoided writing any articles dealing with labor-management disputes because he could not determine what constituted "persuasion" under Sec. 203(b). In MPA's view, therefore, the Act violated its due process rights because it failed "to provide explicit standards" for those applying the disclosure provisions. Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972), quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). Moreover, the ambiguity of the statutory language, according to MPA, had a chilling effect on the Association's freedom of speech, insofar as it forced "Insight" to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked." Id. Third and finally, MPA argued that the reporting requirements of Sec. 203(b) constituted a prior restraint on free speech because they required compliance "prior to publication, regardless of the timing or actual contents of the magazine."

After reviewing the evidence the district court concluded that MPA had failed to establish a violation of its first amendment rights. The court found that the Act was sufficiently precise to serve notice of its requirements and that any "chilling effect" suffered by Doesburg and MPA was "more an admission that he [and "Insight"] is unable to write an article that is merely informative ... without at the same time taking a position in which he undertakes to persuade his readers." The court viewed with "skepticism" the claim advanced by MPA's witnesses that disclosure would have a "deterrent effect" on membership, but it concluded that even if the disclosure requirements did encroach on MPA's first amendment rights of speech or association, the governmental interests served by the Act far outweighed the harm suffered.

The court rejected out of hand MPA's prior restraint argument.

II.

The Supreme Court has recognized that "compelled disclosure of affiliation with groups engaged in advocacy" may infringe first amendment rights. Buckley v. Valeo, 424 U.S. 1, 65-66, 96 S.Ct. 612, 656-657, 46 L.Ed.2d 659 (1976); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). See also Marshall v. Stevens People & Friends, for Freedom, 669 F.2d 171, 176 (4th Cir.1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982). Disclosure laws that "significant[ly] encroach" on first amendment rights "cannot be justified by a mere showing of some legitimate governmental interest." Buckley, 424 U.S. at 64-65, 96 S.Ct. at 656-657. Rather, the state's interests must survive "exacting" scrutiny, and the state must establish a "relevant correlation" or "substantial relation" between the governmental interest and the information sought through disclosure. Id. Exacting scrutiny is required even if the infringement on first amendment rights arises "not through direct government action, but indirectly as an unintended but inevitable result of the government's conduct in requiring disclosure." Id.

To assess the Association's first claim that the LMRDA's disclosure requirements violate the first amendment rights of speech and association, therefore, our analysis must focus on four factors: the degree of infringement on first amendment rights; the importance of the governmental interest protected by the Act; whether a "substantial relation" exists between the governmental interest and the information required to be disclosed; and the closeness of the "fit" between the Act and the governmental interest it purports to further. After weighing these factors, it will be possible to determine whether the burden imposed on MPA's freedoms of speech and association--if such a burden exists--is sufficiently justified by the interests the Act seeks to protect.

A.

A...