of the International as the term "member" is used in section 101(a)(2). Authority to the contrary does not analyze the definitions and cites no authority for the proposition that locals do not have standing. Consequently, Local 505 may assert claims under section 101(a)(2).
Defendant's Argument that Section 26 Applies Only to Locals
Linked to defendant's interpretation of section 101(a)(2) of the LMRDA is its argument that section 26 of the International's constitution does not apply to communications by individual members of the union. Instead, defendant argues that the section, by its very language, applies only to communications from locals qua locals. Despite some intricate semantic arguments by the parties concerning the affidavit of Juel Drake, General President of the International, it is apparent that Mr. Drake's position is that section 26 would be applied only to official communications of a local. Whether they be oral or written is irrelevant. The application of section 26 would be triggered by a communication that bears the imprimatur of the local.
There is little evidence available to the Court to make an independent determination of the historic interpretation of section 26 of the International's constitution. Plaintiffs cite some comments by a union official at the 1986 Convention which suggest, though not very strongly, that section 26 is primarily intended to prevent scurrilous attacks on the reputation of union officials. Such a purpose would be impermissible under section 101(a)(2). See Petramale v. Local No. 17 of Laborers International, 736 F.2d 13, 17 (2d Cir. 1984) (101(a)(2) prohibits discipline of even libelous statements). Mr. Drake's affidavit, however, expressly contradicts this justification for the section and argues instead, as discussed above, that the section has several legitimate purposes.
The union's interpretation of its constitution, rules, or regulations is entitled to considerable deference. Monzillo v. Biller, 237 U.S. App. D.C. 20, 735 F.2d 1456, 1458 (D.C. Cir. 1984); Local 334 v. United Association of Journeymen, 669 F.2d 129, 131 (3rd Cir. 1982). The Court's role in suits under section 101 of the LMRDA is not to interpret the union's constitution or rules, but to consider whether the union's interpretation and application of the constitution or rule deprives members of the rights guaranteed by section 101. Motion Picture & Videotape Editors Guild, Local 776 v. International Sound Technicians, Local 695, 800 F.2d 973, 975 (9th Cir. 1986); Stelling v. I.B.E.W., 587 F.2d 1379, 1388 (9th Cir. 1978) (court should not interpose own interpretation of union's constitution unless interpretation by union officials is unfair or unreasonable). Thus, as plaintiffs have tacitly admitted, the union's interpretation of section 26 must be accepted by the Court unless it is patently unfair or unreasonable.
As a matter of linguistics, the union's interpretation of section 26 is plainly erroneous in one respect. General President Drake declares that the section applies only to communications by a local to a local as entities. Nevertheless, section 26 clearly states that communication to locals or members is prohibited. Consequently, this aspect of Mr. Drake's interpretation is rejected.
While Mr. Drake's interpretative error has little bearing directly on this case, since plaintiffs' claims concern communications by members and not to members, it does suggest that the panoply of justifications offered in his affidavit is of recent vintage. Indeed, the justifications offered in Mr. Drake's declaration are so implausible that one may conclude that each justification was contrived for the purposes of this litigation.
The basis for the first of these justifications is article XIX section 10 of the International's constitution which establishes a charges and trials procedure for disciplining union members and officials. The trial is conducted by the International's General Executive Council or one of its representatives. General President Drake argues that censorship of communications by locals is necessary to preclude these due process procedures from being infected with scurrilous and unfounded personal attacks on the member or official charged.
The Court appreciates the value of impartial and unprejudiced disciplinary proceedings. The purpose is to be commended but the mechanism is seriously flawed. The scope of section 26 is far broader than the narrow purpose of preventing communications that may taint the fairness of disciplinary proceedings. Appropriate, less inclusive language could easily be drafted if the purpose of section 26 were truly as Mr. Drake states it.
The second purpose for which Mr. Drake insists section 26 is necessary is to prevent employers or others hostile to the purposes of the union from acquiring information concerning intra-union disputes. Mr. Drake argues that it has been the experience of his union and others that communications between locals concerning the interpretation of collective bargaining agreements or other disputes may be used by employers to undermine the solidarity of the union and its effectiveness at the bargaining table. While this may be true, the value of section 26, as Mr. Drake interprets it, in deafening employers to the squabbles of union members is difficult to fathom. It would seem that communications from members or officials individually or as groups though not as a local would be equally harmful to the interests of the union as communication by the local officially. Again, the plain language of section 26 is vastly more broad than necessary to accomplish this purpose even if the purpose is legitimate.
Finally, defendant alleges that section 26 is intended to prevent financial solicitations by locals which solicitations may be contrary to the interests of the International and its members. Mr. Drake contends that locals may abuse their access to union mailing lists and solicit members for financial contributions to causes that may not be in the best interests of the members. It is at least arguable that the union may properly prevent its locals from using the union's mailing lists to solicit members for financial contributions. Indeed, the United States Court of Appeals for the District of Columbia Circuit has recently held that members have no absolute right to mailing list access. Carothers v. Presser, 260 U.S. App. D.C. 277, 818 F.2d 926 (D.C. Cir. 1987). The Carothers opinion demonstrates that section 26 of the International's constitution is far broader than necessary to accomplish the limited purpose of preventing financial solicitations by locals. In fact, the International need not address communications at all in its rule but only decline to release the mailing list to locals whose purpose is contrary to the lawful policies of the International.
Union Democracy Under Section 101 of the LMRDA
Citing documented instances of corruption, dishonesty, breach of fiduciary duty, and disregard of the rights of employees, Congress enacted the LMRDA to "bring to the conduct of union affairs and to union members the reality of some of the freedoms of expression that we enjoy as citizens by virtue of the Constitution of the United States." 105 Cong. Rec. 6472 (daily ed. Apr. 22, 1959), reprinted in 1 N.L.R.B., Legislative History of the Labor Management Reporting and Disclosure Act of 1959, at 1098 (statement of Senator McClellan). To achieve this purpose, Congress adopted an employees' "Bill of Rights" in Title I. Specifically addressing section 101(a)(2), the Supreme Court recently noted that Congress intended "to restate a principle of First Amendment value -- the right to speak one's mind without fear of reprisal." United Steelworkers of America v. Sadlowski, 457 U.S. 102, 111, 102 S. Ct. 2339, 72 L. Ed. 2d 707 (1982). The Court immediately noted, however, that Congress did not intend the scope of section 101(a)(2) to match that of the First Amendment. Id. Reiterating this warning with more precision, our Court of Appeals recently stated that:
the statute sets forth certain specific regulations governing internal union affairs. In other words, "democracy" under the LMRDA is not merely a boundless ideal to be defined by the whim of any dissident voice; rather, the statutory notion of internal union democracy is precisely limited by the scope of the protections codified by Congress in the LMRDA.
Carothers, 818 F.2d at 929 (emphasis in original).
The Carothers decision is instructive in this case in at least two ways. First, it clearly sets forth the framework for analyzing claims under Title I of the LMRDA. Initially, "the Court must determine whether the union's conduct deprived the plaintiffs of a right specifically enumerated in the statute. . . . Once it has made a particularized finding that the union violated a right specifically enumerated in the statute, the Court may fashion a remedy tailored to the violation." Id. at 931 (emphasis in original). Thus, a free speech claim under Title I must assert deprivation of a right expressly granted in section 101(a)(2). Ancillary rights that may be inferred in a constitutional context may not be inferred in this statutory setting.
The second relevant teaching of Carothers is that rights specifically enumerated in section 101(a)(2) are to be protected as though granted by the First Amendment. See, id.; Steelworkers, 457 U.S. at 111 (section 101(a)(2) restates First Amendment values). Thus, the Court may grant "such relief (including injunctions) as may be appropriate." 29 U.S.C. § 412. In addition, First Amendment doctrines should guide the Court's explication of rights specifically enumerated in section 101(a)(2). Steelworkers, 457 U.S. at 111.
Defendant relies heavily on Carothers for the proposition that "there is no 'specifically enumerated' right in the statute guaranteeing to Local Unions Title I rights." Defendant's Memorandum at 17. The import of defendant's position appears to be that since section 101(a)(2) does not use the word "locals" it does not apply to locals and, therefore, Carothers requires that plaintiffs' claims be denied.
If the Court were to agree, this proposition would set a precedent for statutory draftsmanship that is unacceptable. As noted above, the definitional sections of the LMRDA include local unions within the definition of member for the purposes of Title I. It is impractical, if not unnecessary, to repeat this definition each time the word member is used. Carothers stands not for the proposition that claimants under Title I must be specifically identified in the statute but that the rights which form the basis of the claim must be specifically enumerated in the statute. The right of free speech is the foundation of Title I.
The Question of Standing Revisited
Under section 102 of the LMRDA, any person whose section 101 rights have been "infringed" may bring an action for any relief that is appropriate. 29 U.S.C. § 412. The question of standing in this case under section 102 reduces simply to whether plaintiffs' 101(a)(2) rights have been infringed. Each of the plaintiffs alleges that he or it was silent because of section 26 of article XXI of the International's constitution. As to plaintiffs Nelson and McClusky, no action by the International itself is alleged to have silenced their speech; McClusky's own interpretation of section 26 induced him to remain silent and the interpretation of section 26 by the President of a neighboring local frustrated Nelson's attempts to discuss his 1986 convention proposal. Only Local 505 claims that the International was directly responsible for an infringement of its free speech right. The International's misdeed was its failure to act -- its failure to approve Local 505's request to communicate regarding the 1986 convention proposal.
The degree of injury necessary to create standing under section 102 of the LMRDA appears to be a question of first impression.
Inasmuch as this case involves an unquestionably overbroad regulation of speech, reference to the overbreadth doctrine of the First Amendment is appropriate.
While the principle of standing is rooted in the Article III case or controversy requirement, it also reflects "prudential considerations that limit the challenges courts are willing to hear." Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955, 81 L. Ed. 2d 786, 104 S. Ct. 2839 (1984). The normally stringent requirement of injury in fact has been relaxed, however, in the First Amendment context because:
it has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.
Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). The leeway allowed by the Court to persons alleging First Amendment violations has been substantial. Thus, attacks on overly broad statutes have been permitted by persons whose speech might not be protected under the First Amendment but who have been punished for that speech under such statutes. Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980) ("a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the Court"); see Dombrowski v. Pfister, 380 U.S. 479, 486, 14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965).
Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the Court to refrain from constitutionally protected speech or expression.