Keeping the “Free” In Free Speech:

John Kramer
John Kramer · May 21, 2002

Washington, D.C.—Imagine a world in which people no longer debate public policy issues for fear of being sued by their opponents. That is the goal of a lawsuit filed by the Michigan Education Association (MEA) and its president alleging that the Michigan-based Mackinac Center for Public Policy “misappropriated” his “likeness” by quoting him in a letter. And while the lawsuit itself is clearly frivolous, the MEA’s willingness to run roughshod over the First Amendment to silence its opponents signals an alarming escalation in the union’s battle against meaningful education reform in Michigan. Today, the Washington, D.C.-based Institute for Justice announced its plans to defend the Mackinac Center’s right to free speech.

On September 27, 2001, the president of the Michigan Education Association, Luigi Battaglieri, announced at a press conference the opening of a new organization called the Great Lakes Center for Education Research and Practice. As became clear during his remarks, a major objective of the MEA-funded and MEA-governed group will be to defend the status quo by criticizing Mackinac Center research and recommendations. The Mackinac Center for Public Policy is a 14-year-old nonprofit, nonpartisan policy research institute that studies state and local policy questions on topics including education, labor law, fiscal policy, economic development and the environment. In laying out his vision for the Great Lakes Center, Battaglieri candidly acknowledged the Mackinac Center’s prominent role in providing education research to the public:

I know what’s in your minds – I think I’ve worked with the media enough that I expect the headline is going to be that the MEA takes on the Mackinac Center. . . . I guess I expect their reaction to be one where they will welcome us as new kids on the block to enter into the field that they’ve been into for a number of years now, and I assume they’re going to scrutinize our research just as much as we’ve scrutinized theirs. And so, quite frankly, I admire what they have done over the last couple of years entering into the field as they have and being pretty much the sole provider of research to the community, to the public, to our members, to legislators, and so on. . . . [T]hose 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, Mackinac Center President Lawrence Reed quoted Battaglieri in a year-end letter describing the Center’s accomplishments and seeking support for the coming year:

By all measures the Mackinac Center has had an outstanding year and the people of Michigan are the beneficiaries. But you don’t need to take my word for it.

This fall Luigi Battaglieri, president of the Michigan Education Association, stated, “Frankly, I admire what the Mackinac Center has done.” Mr. Battaglieri, whose union is generally at odds with the Mackinac Center, said this with respect to how Mackinac Center research has shaped education reform in Michigan and around the nation.

Shortly thereafter, the Mackinac Center received a threatening letter from the MEA’s lawyer, who accused the Center of “distorting” Battaglieri’s views and demanded that the Center turn over a list of anyone who had ever received any solicitation from the Mackinac Center in which Battaglieri’s or the Michigan Education Association’s names were used. Explaining that it had done nothing wrong, the Mackinac Center correctly noted that the use of Battaglieri’s remarks “in a non-profit fundraising letter dealing with political issues” was fully protected by the First Amendment. Battaglieri and the MEA filed suit anyway, claiming that the Mackinac Center, supported entirely by voluntary contributions, had “misappropriated” their likenesses for its own commercial benefit. Taking a page from the bullying tactics of anti-reformers against the civil rights movement in the 1950s, the MEA again demanded the Mackinac Center’s mailing list. In addition, the union seeks for itself all of the donations sent by Mackinac Center supporters in response to the disputed letter, and the MEA has also asked the court to slap a permanent gag order on the Center forbidding it from using its or its officials’ names or identities in future solicitations. For anyone committed to the principle of free expression and the marketplace of ideas, it would be deeply troubling if this lawsuit had a legal leg to stand on.

Fortunately, it does not.

“The idea that a public policy organization has to get permission from its opponents to quote them is ludicrous,” said Clark Neily, an Institute for Justice senior attorney. “The First Amendment case law on this point is so clear that it makes you wonder what’s really going on here. If the MEA and its leaders think they can silence speech they don’t like with frivolous lawsuits like this one, they are sadly mistaken.”

“The truth speaks for itself,” said Joseph Overton, the Mackinac Center’s senior vice president. “Lou Battaglieri said, ‘I admire what they have done over the last couple years,’ referring to the Mackinac Center. We merely accurately repeated the union president’s statement.”

“The MEA’s tactics are reminiscent of the anti-civil rights movement of the 1950s,” said Chip Mellor, president of the Institute for Justice. “The MEA will use any means of intimidation it can think of—from demanding Mackinac’s mailing lists to abusing the judicial system—to quash any voice for reform. The MEA’s goal is to intimidate supporters of the Mackinac Center. But just like in the 1950s, the bullies will lose this fight.”

Teachers’ unions are using these bullying tactics now in anticipation of the U.S. Supreme Court’s school choice decision. If the Court sides for choice, the unions know the battle for education reform and accountability will return to the state level, and they are launching a preemptive strike to silence any voice for choice.

“Independent Mackinac Center research threatens the MEA’s bottom line; that is why the union is going after us,” said Joseph Lehman, Mackinac Center executive vice president. “Mackinac Center research has shown some of the harmful effects of compulsory unionism and has proposed that unions should receive money only from people who genuinely and voluntarily support the union. But the union would rather use force than reason.”