IJ & Mackinac Center Fight For Free Speech

August 2002

IJ & Mackinac Center Fight For Free Speech

By Clark Neily

We have always known that teachers’ unions hate any form of school choice, but we continue to be amazed by what they will do to maintain their stranglehold on the public education monopoly. The Michigan Education Association’s recent assault on the First Amendment rights of a leading school choice proponent, the Mackinac Center for Public Policy, is a case in point. That attack came in the form of a patently frivolous lawsuit against the Mackinac Center accusing the Center of “misappropriating” the MEA president’s “likeness” by quoting him in a fund-raising letter.

More on the concept of “misappropriation” in a moment, but first, a bit of history.

The debate over school choice in Michigan is dominated by two opposing forces. Fighting to preserve the status quo is the state’s largest teachers’ union, the Michigan Education Association (MEA). Carrying the banner of genuine educational reform is the Mackinac Center for Public Policy, one of the nation’s most effective and influential state think tanks. Mackinac Center studies have shown how various reforms could radically improve Michigan’s public education system while giving teachers and parents far greater freedom and saving millions in taxes.

The Mackinac Center has been so effective in getting the word out about the benefits of school choice, voluntary unionism, privatization and other reforms, that the MEA decided to create a “think tank” called the Great Lakes Center for Education Research and Practice, whose sole purpose appears to be critiquing the Mackinac Center’s work. When the MEA’s president, Luigi Battaglieri, held a press conference in Lansing to announce the opening of the union-funded, union-directed “think tank,” he offered a remarkable tip of the hat to the Mackinac Center when he told reporters:

Quite frankly, I admire what they have done over the last couple years entering into the field as they have and pretty much being the sole provider of research to the community, to the public, to our members, to legislators and so on. . . . . Those of us in the educational community, for being in the business of educating, we’ve done a poor job in my opinion in the past of educating the public about all the good things that are going on in public education. (Emphasis added.)

Pleasantly surprised by these words of praise from a leading opponent, the Mackinac Center quoted Mr. Battaglieri in a fund-raising letter. Perhaps regretting his earlier candor, Battaglieri and the MEA promptly filed suit on the bizarre premise that Battaglieri’s remarks amounted to an endorsement of the Mackinac Center, for which the Center was bound to pay him if it wanted to use the quote in its fund-raising efforts.

A genuine “misappropriation of likeness” case would be if Coca-Cola used a picture of Michael Jordan drinking a Coke in an advertising campaign without Jordan’s approval. But the idea that participants in a public policy debate (and particularly those who call press conferences to proclaim their views) can use the “misappropriation” tort to silence their opponents is alien to our culture and directly contrary to what the Supreme Court has described as America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

To protect that robust public debate, courts in misappropriation cases apply a broad First Amendment privilege for reporting and commentary regarding “newsworthy” events. The MEA will doubtless argue that the newsworthiness privilege doesn’t apply because the Mackinac Center’s fund-raising letter amounted to unprotected “commercial speech.” Even leaving aside the doctrinal problems surrounding the commercial speech doctrine, the MEA’s argument must fail for several reasons, not the least of which is that the fund-raising activities of public interest organizations are not commercial speech.

It appears the MEA’s real motive in all of this may be to get its hands on the Mackinac Center’s mailing list, for which it has now made three separate demands. But that tactic, which was pioneered by Southern segregationists seeking to destroy the NAACP by going after its members, met with strong disapproval from the Supreme Court, which recognized that mailing lists are the lifeblood of public interest organizations. We are confident that the MEA’s attempt to use those loathsome tactics to go after the Mackinac Center’s supporters will meet the same fate, along with the rest of its shameful and ill-conceived attack on the First Amendment.

Clark Neily is an Institute for Justice senior attorney.