15 - Freeing Speech at Work

Summary

The ‘marketplace of ideas’ metaphor tends to dominate US discourse about the First Amendment and free speech more generally. The metaphor is often deployed to argue that the remedy for harmful speech ought to be counterspeech, not censorship; listeners are to be trusted to sort the wheat from the chaff. This deep skepticism about the regulation of even harmful speech in the USA raises several follow-on questions, including: How will trustworthy sources of information fare in the marketplace of ideas? And how will participants know whom to trust? Both questions implicate non-regulatory, civil-society responses to mis- and disinformation. This chapter takes on these questions, considering groups and institutions that deal with information and misinformation. Civil society groups cannot stop the creation of misinformation – but they can decrease its potential to proliferate and to do harm. For example, advocacy groups might be directly involved with fact-checking and debunking misinformation, or with advancing truthful or properly contextualized counter-narratives. And civil society groups can also help strengthen social solidarity and reduce the social divisions that often serve as fodder for and drivers of misinformation.

15.1 Introduction

The ‘marketplace of ideas’ metaphor tends to dominate US discourse about the First Amendment and free speech more generally. The metaphor is often deployed to argue that the remedy for harmful speech ought to be counterspeech, not censorship; listeners are to be trusted to sort the wheat from the chaff. This deep skepticism about the regulation of even harmful speech in the USA raises several follow-on questions, including: How will trustworthy sources of information fare in the marketplace of ideas? And how will participants know whom to trust? Both questions implicate non-regulatory, civil-society responses to mis- and disinformation.¹ This chapter takes on these questions, considering groups and institutions that deal with information and misinformation. Civil society groups cannot stop the creation of misinformation – but they can decrease its potential to proliferate and to do harm. For example, advocacy groups might be directly involved with fact-checking and debunking misinformation, or with advancing truthful or properly contextualized counter-narratives. And civil society groups can also help strengthen social solidarity and reduce the social divisions that often serve as fodder for and drivers of misinformation.

In this chapter, I focus specifically on the role of labor unions in countering misinformation in the US context. US labor unions negotiate on behalf of groups of workers, and also advance workers’ interests writ large in political contexts. Both roles can involve countering mis- or disinformation in various forms. First, misinformation is a common weapon in employers’ arsenals during union-organizing drives. Among other misleading messages, employers often try to paint union organizers as outside agitators, isolated malcontents, or incompetents looking for protection from rightful accountability. This sort of messaging is so routine as to have become unremarkable – though it can also be difficult to counter effectively, given that employers have vastly more access to employees than do union organizers.² Second, employers can be a source of misleading political claims. As political scientists have documented, it is relatively common for US employers to urge employees to adopt the employer’s preferred political views, sometimes by creating the impression that the future of the company (and the employees’ jobs) is on the line.³ But would workers be likely to know if their employer lied (or stretched the truth) in making political pitches? The answer is more likely to be ‘yes’ if the workers are unionized.⁴

The foregoing is true for US workers in general – but some workers, such as journalists, teachers and librarians, have jobs that inherently involve countering (or spreading) misinformation. Here, labor unions can play more specific roles in strengthening the organizations for which their members work. As an illustration, this chapter considers journalists’ unions. At one level, these unions fight for the same working conditions as any other union, such as better pay and benefits, stronger worker autonomy and freedom from arbitrary discipline, and the preservation of bargaining-unit work.⁵ But in the context of news organizations, these terms can take on special significance. For example, a more diverse set of people will pursue careers in journalism if they can earn a decent living while doing so, which is important because varied perspectives and knowledge within a newsroom can lead to better and more thorough reporting. And protections against arbitrary or inconsistent discipline are important to workers whose jobs involve ‘speaking truth to power’ – ultimately benefiting both covered workers and the integrity of organizations themselves against individual failings of managers or owners.

In addition, journalists’ unions are often able to negotiate contract protections that specifically relate to journalists’ integrity.⁶ For example, some collective bargaining agreements provide for a degree of independence in the editing process, such as by allowing reporters to withhold their bylines from stories that they believe have been edited in an inaccurate or misleading fashion. Others guarantee that reporters will have input and an opportunity to respond if the accuracy of their reporting is challenged by the subject of that reporting and promise that the news organization will pay for legal representation if a journalist is sued. And still others implement general codes of ethical conduct as part of the collective bargaining agreement (CBA) itself, creating protections for journalists who insubordinately refuse to engage in unethical conduct.

My argument is that journalists’ unions (and, similarly, unions of other groups of information workers) can protect free speech values – and the most specific way they do this is by giving workers leverage to demand that their employers live up to their institutional values. Ironically, though, the First Amendment weakens unions’ abilities to do this. Although the Supreme Court has held since 1937 that the National Labor Relations Act of 1935 (NLRA) applies to employers that are in the speech business, news organizations have successfully argued to US Courts of Appeals that they cannot be compelled to bargain over editorial policies.⁷ This is so even though unions themselves are not state entities, and even though US labor law includes no mechanism to compel a private-sector employer to reach an agreement.⁸ In other words, although the First Amendment is crucial to journalists’ abilities to do their jobs, it can also benefit employers when journalists exercise collective power to protect the integrity of their work.

The chapter begins with a brief discussion of social scientists’ findings on the kinds of traits that make individuals and societies vulnerable to mis- and disinformation. These findings background the chapter’s discussion of why strong unions can harden American society against misinformation, including by decreasing social cleavages, increasing government’s responsiveness to poor and working class citizens’ concerns, and connecting unionized workers to the political process. Then, the chapter turns to unions of information workers, particularly teachers and journalists, and argues that unionization allows these workers to pressure their employers to stay true to their institutional missions. Finally, it shows that already weak labor law is further weakened by courts’ understanding of how the First Amendment interacts with labor law in this context.

15.2 Civil Society and Misinformation

Misinformation researchers have focused primarily on questions such as how to identify and map misinformation, and whether or how to regulate the spread of misinformation by government officials or on social media platforms. But there is less research focused on civil society’s role in fighting misinformation. Still, these groups have a role to play. First, civil society groups will often be trusted by their own members as sources of accurate information.⁹ Further, they can bring people together, engaging them on social and political issues and building social connections; this function is important because engaged and connected communities are better able to resist misinformation than more atomized communities.¹⁰ Second, civil society groups can pressure social media platforms or news outlets to take down misinformation without triggering government censorship concerns. Third, they can advance accurate narratives in the press. For example, a news outlet might seek comment from a local civil rights group before publishing a story on a school board candidate’s untrue claim that critical race theory is taught in elementary schools.¹¹

Civil society groups have a range of purposes and goals, and of course they are also differently situated with respect to political disinformation. Some groups view fighting disinformation – either in general or on a specific topic or platform – as a central purpose; on the other end of the spectrum, others avoid all discussion of political or divisive topics. But many groups fall in between, including labor unions – this chapter’s focus. Unions generally have explicit political priorities, but they do not exist only to participate in electoral politics, or specifically to fight misinformation. And while they sometimes address misinformation head-on, they likely also have more indirect effects. Accordingly, this chapter begins with a generalized discussion of how labor unions can strengthen democracy and make US society more resistant to disinformation, before turning to an important subset of unions: those that are comprised of information workers, particularly journalists.

Why focus on labor unions rather than media literacy organizations, civil rights organizations, political parties or advocacy groups? To be clear, my answer is not that unions are more important than these other groups. Instead, it is that unions are also important, but frequently overlooked. Most of the remainder of this chapter explains why that is, beginning with unions in general, and then turning to unions of information workers.

15.3 Unions and Misinformation

One reason unions are an important part of this story is that – perhaps counterintuitively – workplaces can offer opportunities for sustained cooperation and the development of social ties between people of different backgrounds, which can have positive spillover effects for democratic life.¹² Moreover, because three-quarters of US adults aged 25–54 work,¹³ and workplaces tend to be more diverse than other American institutions, these opportunities may be more likely to arise at work than in other (relatively segregated) spaces in which people regularly spend time.¹⁴ For that reason, Cynthia Estlund argued more than twenty years ago that the workplace is ‘a uniquely important site within a diverse democratic society that aspires to achieve integration and equality among the citizens but that recognizes limitations on the proper scope of regulation’.¹⁵

But, as Estlund also observed, the story is not entirely rosy, and workplaces’ potential to give rise to social bonds that help protect communities from misinformation can easily go unfulfilled. First, as in many other US contexts, racial diversity has been declining in US workplaces over recent decades,¹⁶ and the US Supreme Court’s growing hostility towards remedial affirmative action increases the likelihood that this trend will continue.¹⁷ Moreover, most workplaces are autocratic; the philosopher Elizabeth Anderson rightly calls most workplaces ‘dictatorships … in which bosses govern in ways that are largely unaccountable to those who are governed’.¹⁸ This means that even though workplaces can facilitate or require respectful interactions among employees, US employers are also generally free to insist on a pace of work that precludes community-building interactions among workers.¹⁹ Employers may also rely on pools of high-turnover-contingent workers.²⁰ And whereas yesterday’s employers may have been unable to monitor their workforces closely enough to notice short breaks or side conversations, today’s employers have increasingly sophisticated workplace surveillance technology that monitors workers’ precise activities, including whether they are ‘on task’ at any given moment.²¹ In addition, many low-wage workers need multiple jobs to make ends meet – leaving little or no time for civil or political engagement outside of work.²²

Rather than giving up on workplaces’ potential to strengthen our social ties, it is worth considering whether there are institutions or practices that can make work more democratic. One obvious candidate: labor unions, which may bargain on behalf of a group of workers only if democratically elected.²³ In turn, a successful union election compels employers to come to the table to attempt to hash out an agreement on wages and working conditions, rather than setting working conditions autocratically.²⁴

Collective bargaining (and workplace collective action more generally) allows workers to push back against some of the workplace trends discussed above. For example, pay, scheduling, the pace of work and workplace discipline are the bread-and-butter of collective bargaining agreements.²⁵ (This is also one reason that unionized workers vote and otherwise participate in politics at greater rates than their non-union counterparts.)²⁶ Beyond that, unions are also active in politics in ways that range from member-to-member conversations, to programs that help union members run for office, to candidate endorsements and related spending. Much of this advocacy involves union leaders or members conveying their own affirmative messages about which party or candidate will be better for workers – but, of relevance to this chapter, it can also involve rebutting misinformation from other sources, including workers’ own employers.

Private-sector employers in the USA are mostly free to ‘talk politics’ to their employees, and a large number of them take advantage of their captive audiences.²⁷ Some stick to non-partisan messages, such as reminders about when Election Day is or how to register to vote – but others actively advocate for candidates or political parties in ways that can pressure workers, and that can involve misinformation.²⁸ For example, an employer may ‘nudge … people away from thinking about issues in particular ways’,²⁹ or falsely or misleadingly blame government policies as the cause of its own unpopular decisions. More alarmingly, some employers have said or implied if the employer’s disfavored candidate wins, it could be forced to cut jobs.³⁰ When this happens – or even when misinformation circulates in a workplace on a more ad hoc basis – unions may be a trusted source for both facts and alternative policy viewpoints. Thus, researchers have found that unionized workers are relatively well-informed about politics,³¹ and that this is especially true for workers with the least formal education.³²

In addition, social inequality seems to play a role in making societies susceptible to misinformation, and unions reduce various forms of inequality. To be clear, the premise – that more unequal societies are more vulnerable to misinformation – seems intuitive, but the supporting research is sparse, especially compared to research on characteristics that make individuals vulnerable to misinformation.³³ Still, good reasons exist to believe high levels of social inequality are an important part of the puzzle. For example, one group of researchers has posited that it will be relatively easy to manipulate members of socially segregated societies in which an advantaged group hoards knowledge resources from a disadvantaged group, though the less advantaged group is especially likely to be harmed.³⁴ Other research specifically focused on public-health messaging in the USA has identified ‘inequality-driven mistrust’ as an important reason that members of historically and currently oppressed groups may be willing to accept misinformation.³⁵ Moreover, the content of concerted misinformation campaigns often exploits and attempts to heighten existing social divisions and prejudices, such as racism and/or sexism in the USA;³⁶ it stands to reason that this material would be less effective in more solidaristic societies.

If this is right, then more widespread unionization would help ‘harden’ a society against the effects of misinformation because unions both strengthen American democracy and, relatedly, decrease inequality. For example, because US unions are required to operate in a democratic fashion, they can be a kind of training ground (and source of material support) for their members’ greater participation in electoral politics. And, in addition to reducing economic inequality (including the racial wage gap),³⁷ there is also evidence that today’s unions reduce racial resentment among their white members – a finding that makes sense when one considers that, to be successful in racially diverse workforces, unions will often have to convince workers to unite to achieve shared goals.³⁸

This section has argued that unions in general have a salutary effect on members’ vulnerability to misinformation. The next section turns to a subset of unions: those comprised of workers whose jobs involve informing or educating the public.

15.3 Information Workplaces and Workers

Some workplaces have special relationships to information and misinformation.³⁹ Many news outlets, libraries and schools would reasonably characterize themselves as carrying out a public-facing mission – producing knowledge, educating and informing segments of the public, and inculcating skills to help protect their audiences against misinformation.⁴⁰ (Social media companies might also characterize themselves this way, but the major platforms have at best a complicated relationship to information and misinformation that is beyond the scope of this chapter.) But organizations that genuinely try to fulfill this mission-driven role can become targets for misinformation spreaders, meaning that both the organization as a whole and its various employees and managers may need to contend with mis- and disinformation. Specifically, they may need to resist targeted campaigns intended to manipulate or coerce them into spreading misinformation, while also retaining their credibility with the public.⁴¹

How well these institutions resist cooptation by spreaders of misinformation will depend on a range of factors. But I argue that one important factor is the extent to which their workforces are organized and empowered to defend themselves (and, by extension, the institution as a whole) against misinformation. The basic argument is intuitive: most people who become journalists or teachers or professors do so at least in part for mission-driven reasons,⁴² and they are singularly well-placed to know how well their employers are doing at carrying out their stated missions and stewarding their institutions.⁴³ This makes organized and empowered employees a potential first line of defense against organizational decisions or practices that open the door to misinformation, or that erode earned public trust.

The remainder of this section turns to one industry – journalism – as an illustration of the thesis. It begins by briefly describing some of the pressures bearing down on US media outlets, emphasizing that one possible response is for outlets to fall back on practices that tend to erode trust in media. Next, it describes how journalists have unionized and otherwise acted collectively in response, fighting with varying degrees of success to preserve institution-sustaining employment conditions and standards. To be clear, I am not arguing that unionization is ‘one weird trick’ that will solve the industry’s various problems – but unionizing allows journalists to push back with more force than they could muster individually.

15.3.1 The Changing Media Environment

As Shannon Poulson and Dannagal Young have described, ‘[t]he quality of journalism and the pursuit of truth depend largely on the commercial, social, and technological changes of the times’.⁴⁴ Financialization, the rise of ‘both-sides’ journalism following a prolonged campaign to label certain kinds of (accurate) reporting as having ‘liberal bias’, the increasing popularity of ‘fake news’ or ‘alternative facts’ rhetoric on the political right,⁴⁵ and the shift to online news consumption (especially on social media platforms) all pose significant threats to ‘mainstream’ journalism and journalists. This subsection briefly (and necessarily incompletely) surveys these trends.⁴⁶

Technological evolution has presented a series of challenges to traditional newsrooms.⁴⁷ Widespread adoption of the Internet left print newspapers scrambling to compete with online entertainment of all sorts, and to convince the public to pay for online news content. Then, the rise of platforms like Facebook again changed the way many individuals consumed news, diverting them from news organizations’ homepages and towards stories that appear individually in their content feeds. One large, international survey recently found that nearly 80 percent of respondents preferred to access news via a platform or other aggregator (and that Facebook is now being supplanted by other platforms) – but also that fewer people are consuming news at all.⁴⁸ This shift has created several misinformation-related problems. Some of these challenges are content-moderation problems, over which platforms have control. For example, legitimate news outlets can report on the existence of sham stories formatted by malevolent actors to closely resemble real news sites – but only platforms can take these posts down and ban their originators, or at least try to.

Similarly, news outlets have had to adapt to the role of algorithmic amplification in determining the reach of individual stories or an organization’s collective output. This would be challenging and at least potentially harmful even if the algorithms were unchanging and publicly well-understood, because algorithmic amplification often rewards ‘clickbait’⁴⁹ or ‘infotainment’.⁵⁰ But the reality is that platforms change their algorithms unpredictably and often without notice. Worse, platforms may provide incorrect information about their own algorithms. The leading example is Facebook’s significant overestimation of the amount of time individual users spent viewing video content, leading many news organizations to undertake a doomed ‘pivot to video’ – sometimes laying off print journalists in the process.⁵¹

These and other technological changes have led to plummeting advertising revenue, particularly for local newspapers.⁵² This has been catastrophic: ‘Since 2005, the [United States] has lost more than a fourth of its newspapers (2,500) and is on track to lose a third by 2025.’⁵³ The result is a growing number of ‘news deserts’ where no credible local newspaper exists.⁵⁴ And although people living in news deserts may be able to access some kinds of local information from other sources,⁵⁵ they lose the benefits of reporting by journalists with the skills and deep local expertise required to unearth information that has been deliberately concealed or that is simply difficult to access or understand.⁵⁶ Further, local news outlets enjoy considerably more public trust than do national news organizations, especially among Republicans and independents⁵⁷ – suggesting that news deserts may leave large numbers of disproportionately right-leaning Americans with few news sources that are credible and that they also trust.

Outlets that have managed to avoid closure still face budget pressures, which can lead to layoffs of journalists and editors, and create incentives for news organizations to underinvest both in time-consuming accountability or investigative journalism, and in critical behind-the-scenes functions like fact-checking and copy-editing. Outlets may substitute access journalism or stories that simply rehash prepackaged material; in the future, outlets may even turn to stories generated in whole or part by predictive-text applications.⁵⁸ Local control of newspapers has also become less common in recent years: as of 2021, ‘half of all daily newspapers in the U.S. [were] controlled by financial firms’⁵⁹ – often ‘vulture’ funds that, in the words of writer McKay Coppins, aim to ‘[g]ut the staff, sell the real estate, jack up subscription prices, and wring as much cash as possible out of the enterprise until eventually enough readers cancel their subscriptions that the paper folds, or is reduced to a desiccated husk of its former self’.⁶⁰

Finally, news organizations have to decide how to deal with misinformation. This might seem straightforward: every credible news outlet strives to uncover the truth, and publicly getting it wrong – especially on a high-profile story – is the stuff of nightmares. But the topic quickly becomes knotty, especially when misinformation and accusations of newsroom bias intersect. For example, consider a journalist who reports the overwhelming scientific consensus that climate change is occurring, that it is caused by human activity, and that it will lead to devastating consequences.⁶¹ In response, powerful industry groups and aligned politicians vociferously accuse the reporter and the outlet for which they work of bias. When this scenario replays itself enough times, the effect can be to pressure editors and reporters to adopt ‘both sides’ or ‘false balance’ reporting. In this example, that might look like producing stories that wrongly imply the existence of meaningful scientific doubt about climate change.⁶² In other words, news outlets legitimately strive for (some version of) neutrality, but also of its appearance – and so when it comes to hotly contested policy and political issues, they may decide to repeat misinformation in order to appear ‘fair’.⁶³

As the climate change example illustrates, this dynamic long predates Donald Trump, but Trump’s candidacy and presidency presented an especially acute challenge. Trump coupled a disregard for the truth with near-constant accusations of media bias (‘fake news’), and he frequently characterized the mainstream media as the ‘Enemy of the People’, sometimes even celebrating violence against reporters.⁶⁴ This left reporters and news outlets with a dilemma – how to handle statements that are false, but also newsworthy because of their source? Early in Trump’s presidency, outlets seemed to struggle with this question. For example, many outlets were at least initially reluctant to use the word ‘lie’ to describe Trump’s statements.⁶⁵ Similarly, journalists and academics alike grappled with how to report on the propagation of disinformation without inadvertently serving the purposes of its creators.⁶⁶

Whether or not news organizations succumb to the bad incentives created by the confluence of these pressures has consequences for the organizations’ public legitimacy. In turn, public trust in media plays a role in determining a society’s susceptibility to misinformation. Unsurprisingly, researchers studying the European context found that journalism scandals decrease trust in mainstream media, as does public perception that media is pervasively biased, clickbait-y or of poor quality.⁶⁷ And, one might add, if this perception is accurate, this loss of legitimacy is deserved – media that suffers from these flaws is failing to convey useful and accurate information to the public.

Misinformation may fill the void left by an absence of trusted news organizations, though the picture is complex: Carlos Rodríguez-Pérez and María Canel also found that countries characterized by lower public trust in media tended to have greater resilience to misinformation. But the finding that healthy skepticism is better than blind trust is not a vindication of poor-quality journalism. Instead, the researchers recommend a two-pronged approach in which government warns the public of the risk of misinformation and develops media literacy through education, while media outlets foster their own legitimacy through transparency, accuracy and fact-checking, and stepped-up ‘watchdog’ journalism⁶⁸ – precisely the functions that are most at risk in today’s media environment. The challenges confronting news outlets and journalists today are shaping the news and reporting available to the public, and journalists’ working conditions. The next subsection discusses how journalists’ unions can respond.

15.3.2 Journalism Unions and Misinformation

The dynamics discussed in the previous section have propelled a recent wave of successful union drives at US news organizations. Beginning with the unionization of Gawker Media in 2015, union drives quickly sprang up at other web outlets, legacy newspapers, magazines and public radio stations.⁶⁹ Steven Greenhouse, a highly regarded journalist who spent three decades at the New York Times, including twenty years covering labor,⁷⁰ explained that ‘[t]wo major forces have propelled the unionization wave: the industry’s financial crisis and the wave of acquisitions, wiping out thousands of jobs and clamping down on salaries’.⁷¹ In addition, Greenhouse saw the COVID-19 pandemic as a factor, both because increased remote work led to a desire to build community, and because the pandemic prompted new questions about working conditions, such as COVID-related workplace safety protocols and work-from-home policies.⁷²

As Greenhouse explained, union drives are often precipitated by planned acquisitions, as journalists see an acute need for negotiated contractual protections against downgrading of their working conditions. For example, Los Angeles Times journalists decided to unionize after the paper was purchased by a news conglomerate, which then unilaterally changed working conditions for the worse and fired newsroom leadership.⁷³ It turns out this was a smart move: the union successfully negotiated a three-year contract guaranteeing raises each year, as well as instituting protections against arbitrary terminations and measures to increase newsroom diversity.⁷⁴

Of course, unions do not always win improvements, and they cannot usually forestall closures of news outlets. The NLRA does not require employers to negotiate with unionized employees over decisions to shut down an entire enterprise – but it does require bargaining with unionized employees over the effects of decisions to shut down, including on topics such as severance payments and the timing of layoffs.⁷⁵ This means that even in a worst-case scenario, unionizing gives journalists a better shot at a good outcome, or at least at the best outcome available under the circumstances. For example, after writers working at The Appeal, a web-based outlet devoted to covering the criminal justice system, announced they were unionizing, the site’s owner announced a decision to shut the site down altogether.⁷⁶ But the union was first able to negotiate severance packages – and better yet, the unionized employees then announced their intention to relaunch The Appeal as a worker cooperative. Today, the outlet still exists as a ‘worker-led nonprofit newsroom’.⁷⁷

Unions such as the NewsGuild advocate against harmful acquisitions in other ways as well. For example, the NewsGuild launched a project called ‘SaveLocalNews’ as a hub for reporting on hedge fund acquisitions of newsrooms,⁷⁸ as well as a place to coordinate political, shareholder- and public-facing advocacy when a new acquisition is in the works.⁷⁹ Journalists’ unions also advocate for regulatory bodies to halt acquisitions of news outlets,⁸⁰ and for legislatures to pass laws aimed at preserving local news.⁸¹ One important function of this advocacy is to point out where the interests of news organizations’ owners diverge from those of journalists. For example, the NewsGuild has warned that iterations of the Journalism Competition and Preservation Act, a bill that would allow news companies to bargain collectively with platforms like Google and Facebook, will be counterproductive if it is not packaged with measures designed to channel increased revenues towards employing more journalists.⁸²

Other US newsrooms have unionized precisely because they see a negotiated CBA as a way to protect the integrity of their work. For example, when ProPublica journalists unionized in 2023, they signed a mission statement focused primarily on journalistic standards and workplace equity: ‘We want to maintain the organization’s focus on ambitious, impact-focused journalism. We want to strengthen existing internal efforts, like those of the diversity committee, that address inequities within our own staff and across our industry.’⁸³ (As of when this chapter went to print, ProPublica and its journalists had not yet negotiated a CBA, although ProPublica agreed to voluntarily recognize the union as the collective bargaining representative of its employees.⁸⁴)

Collective bargaining agreements covering journalists at other outlets reflect a range of terms that help protect journalists’ professional integrity. Some of these are terms that are common to collective bargaining agreements across industries. For example, CBAs that cover journalists usually contain protections against termination or other discipline without ‘just cause’⁸⁵ – an important backstop for journalists who, for example, report on or otherwise criticize their own employers, or who become targets of coordinated, bad-faith attacks.⁸⁶ Importantly, just-cause protections typically put the burden on the employer to prove it had a sufficient reason to impose discipline or termination; moreover, the union litigates the grievance on behalf of the employee, meaning that the employee need not pay a lawyer themselves. Thus, unionized journalists typically have workplace protections that are much closer to academic tenure than to the presumption of at-will employment that otherwise applies to most private sector workers in the USA.

Additionally, journalists’ unions often negotiate contract terms that are either aimed at increasing the diversity of their newsrooms, or that can have that effect; this can increase public trust in reporting by those outlets, especially among marginalized communities.⁸⁷ For example, some contracts require news outlets to interview at least one or two members of underrepresented groups for each open position.⁸⁸ And CBAs that reflect new pay floors, coupled with predictable raises for more senior journalists, can make careers in reporting more feasible for members of marginalized communities. Finally, journalists’ unions have pressured a list of high-profile outlets to respond to racial disparities in hiring, pay or performance evaluations by conducting and releasing surveys of newsroom staff.⁸⁹

Next, many news outlet CBAs contain provisions that are specifically aimed at protecting and operationalizing journalistic standards. For example, the contract that covers US journalists working at The Guardian provides for employee representation on ‘any editorial boards or internal news committee teams by a Guild-appointed employee’, and also states that employees cannot be required to undertake ‘any practice which in the employee’s judgment compromises the employee’s integrity’, including by writing in a way that distorts facts or creates wrong impressions⁹⁰ – a provision that a journalist could rely on if pressured to imply the existence of a scientific debate over a matter that was actually settled.⁹¹ This CBA also specifically protects covered employees against discipline based on ‘the communications of another person on social media’ – which means that journalists cannot be suspended or terminated simply because they become a target of online criticism.⁹² CBAs are not always this protective or detailed – but they often contain some degree of shared labor–management recognition of and protection for journalistic independence. Thus, some CBAs specify that journalists can withhold their bylines from stories to which they have editorial objections, and some create joint labor–management committees to deal with conflicts of interest of breaches of ethical standards.⁹³

In the near future, journalists’ unions might negotiate over the deployment of artificial intelligence (AI) in their newsrooms.⁹⁴ (The deployment of new workplace technology is typically a mandatory subject of bargaining.) This is an example of a larger issue over which unions negotiate frequently: how labor-saving technology will be used, and how the resulting cost savings will be distributed. Those questions can be existentially important for workers in any context – but this context will have consequences for the broader public as well. A best-case scenario might involve cautious deployment of AI for specific routine tasks, subject to careful checking by humans, in ways that free up journalists to concentrate on investigative reporting. But the worst-case scenario would involve increasing reliance on AI for substance, perhaps triggering a vicious cycle of poor-quality output and fall-offs in subscribers and advertisers.

US news outlets seem to be at an inflection point, and the danger is that publishers will continue to respond by prioritizing short-term fixes at the long-term cost of both public trust and public access to reliable news sources. Journalists may not be able to prevent this outcome – but their odds are better if they act collectively. But how does US labor law shape the leverage that journalists bring to bear on news outlets? The next section turns to that question.

15.3.3 Labor Law, the First Amendment and Journalists’ Unions

The previous section made the case that journalists’ unions can help resist misinformation, including because they provide a way for journalists to pressure news outlets to adopt and maintain strong journalistic standards, and to enforce those standards in individual situations. But one barrier to unions’ effectiveness is the weakness of US labor law.⁹⁵ First, as I have described elsewhere, labor law preserves a very broad scope for employers to fight organizing drives,⁹⁶ including by making serious ‘misrepresentations’ about the likely effects of unionization.⁹⁷ As a result, it can be very difficult for workers to unionize in the first place, making the recent string of successful union drives among journalists all the more remarkable. In addition, US labor law does very little to compel employers to agree a contract. The NLRA requires employers (and unions) to bargain in ‘good faith’, but provides no governmental mechanism to resolve bargaining impasses;⁹⁸ instead, it assumes that parties will use their ‘economic weapons’, such as strikes or lockouts, to pressure the other side to reach a deal. And although the NLRA confers legal protection on most strikes⁹⁹ – meaning that employers cannot retaliate against strikers by firing them – workers striking over economic issues can be ‘permanently replaced’.¹⁰⁰ Moreover, labor law generally requires employers to hold working conditions constant while bargaining, but then allows them to make certain unilateral changes to working conditions upon reaching impasse.¹⁰¹ This set of principles tends to give employers the upper hand during bargaining, no matter their industry. But at least two US Courts of Appeals, including the US Court of Appeals for the District of Columbia Circuit, have held that the rules should be even more employer-friendly when unions seek to bargain over issues of editorial policy.¹⁰² This is because they see a bargaining requirement – even under these employer-friendly set of rules related to impasse and unilateral changes – as raising First Amendment concerns.

News outlets have been raising First Amendment objections to labor law since the NLRA was enacted in 1935, and the Supreme Court considered this argument in the 1937 case Associated Press v. NLRB.¹⁰³ This decision was issued as part of a trio of cases in which the Court upheld the NLRA as a valid exercise of Congress’s Commerce Clause authority.¹⁰⁴ The case began when the Associated Press (AP) fired one of its reporters who was active with the American Newspaper Guild. Arguing that it could not be compelled to reinstate the reporter, the AP argued before the Supreme Court that ‘[t]o name the men who shall choose and write the news for publication is no different either in principle or in result from naming what shall be written or published. Here the author and the product are one and inseparable. If one is to be free, so must the other’.¹⁰⁵ In other words, because the AP had a First Amendment right to choose what to publish, it also had an absolute right to decide whom to (or not to) employ.¹⁰⁶ The Court rejected this argument, correctly observing that the NLRA ‘does not compel the petitioner to employ any one; it does not require that the petitioner retain in its employ an incompetent editor or one who fails faithfully to edit the news to reflect the facts without bias or prejudice’.¹⁰⁷ However, the Court did not preclude the possibility of future First Amendment challenges to specific aspects of labor law.¹⁰⁸

Subsequently, news outlets have had some success in arguing that certain applications of labor law infringe their First Amendment rights. For example, consider Passaic Daily News v. NLRB, in which the employer-newspaper cancelled a bureau chief’s regular column in retaliation for his support for a unionization effort.¹⁰⁹ Normally, the remedy for this sort of anti-union retaliation would be an order for the employer to restore the status quo ante by reinstating the union supporter’s duties – but in this case, the Court held that it would be inconsistent with the First Amendment to order the employer to publish the bureau chief’s column.¹¹⁰ Unfortunately, the discussion of the First Amendment issue was quite limited – rather than considering the government interests at stake and possible alternative ways to achieve them, the Court seemed to assume that because the order to reinstate the column implicated the First Amendment, it also violated the First Amendment.¹¹¹

The District of Columbia Circuit reached a similar conclusion in Ampersand Publishing v. NLRB, a case that arose after the owner and publisher of the Santa Barbara News-Press fired or otherwise disciplined several union supporters. Here, the core of the dispute centered on journalistic ethics: reporters and editors employed on the paper’s news-gathering side became concerned about how the paper’s owner, along with an editorial writer who was promoted to publisher, exercised influence over news-gathering and reporting. The reporters unionized, and sought to bargain over these issues as well as bread-and-butter topics.¹¹² When the paper’s leadership resisted, the journalists held a rally calling for readers to cancel their subscriptions, and the paper responded by firing a group of journalists who supported the union.¹¹³ The NLRB ordered the paper to reinstate the fired reporters, but the DC Circuit reversed on First Amendment grounds, writing that ‘[g]iven the publisher’s First Amendment rights, issues of what is published and not published are not generally a “legitimate employee concern”’, because ‘The First Amendment affords a publisher – not a reporter – absolute authority to shape a newspaper’s content’.¹¹⁴

Two important legal implications flow from this approach. The first is that editorial policies would be at most a ‘permissive’ subject of bargaining, meaning that employers would remain free to change those policies throughout the bargaining process, and they would not bear on whether impasse was reached. The second, more consequential, implication is that an employer could fire or otherwise discipline employees who struck over either a news outlet’s refusal to bargain over editorial policies, or the substance of those policies. In other words, journalists could not rely on the NLRA’s bargaining requirement or its anti-retaliation provision with respect to editorial policies. My view is that this approach is seriously flawed because it conflates labor law – a mechanism to provide limited protections for employees to exercise voice vis-á-vis their employers – with direct government control of the press. Unfortunately, the current Supreme Court’s highly formalistic approach to First Amendment cases means that it would likely uphold the DC Circuit’s approach, were it to decide a similar case.¹¹⁵

But even assuming that these courts’ understanding of the First Amendment’s interplay with labor law is doctrinally correct, journalists’ unions will still likely succeed in influencing mainstream outlets’ editorial policies. Unions that lack legal rights can still appeal to the public, and editorial integrity is an appealing message. Moreover, many individual journalists have substantial presences on social media platforms, making it relatively easy to reach both the public and other journalists, and news outlets within the same media market report on each other, as illustrated by coverage in the Los Angeles Times of labor conflicts at the Santa Barbara News-Press.¹¹⁶ Finally, once an outlet commits to be bound by a CBA provision related to editorial integrity, that provision is likely to be enforceable through the usual channels without raising a First Amendment problem.¹¹⁷

As a result, journalists’ unions will have greater prospects for success when they organize and seek to bargain over editorial integrity before there is an integrity problem at their outlet. Once the train has left the station – as was seemingly the case at the Santa Barbara News-Press – the outlet may simply double down and fire complaining journalists.¹¹⁸ But in the absence of a current conflict, outlets should be willing to agree to general integrity commitments along with specific mechanisms to make them real, particularly because these provisions do not generally come with attached price-tags. Thus, although labor law’s weakness is a drawback – and an especially significant one in this context – organizing and collective bargaining still have promise as mechanisms to protect journalistic integrity.

15.4 Conclusion

This chapter has argued that labor unions are important to the fight against misinformation, both in the near term and on a longer time horizon. Already, unions can inoculate their members against misinformation through member-to-member education, and counter-narratives advanced in the media. In the longer run, higher levels of unionization could decrease the social inequality and resentment that make a society more vulnerable to misinformation.

Further, unions of information workers can play an important role in maintaining the integrity of their own workplaces. (This chapter has focused on journalists, though similar arguments could be made about other groups, including teachers and librarians.) First, collective bargaining between journalists’ unions and news outlets can improve bread-and-butter labor standards so that journalism will remain a realistic and attractive career option for people from a diverse range of backgrounds – an important predicate for public trust. Second, collective bargaining is an opportunity to establish meaningful protections for ethical journalistic practices, which unions can then monitor and enforce through grievance procedures. These labor standards and protections are likely to be especially important as news outlets continue to grapple with the serious challenges posed by technology, changing business models and financialization, and threats posed by authoritarian politics.

Unfortunately, union density in the USA has been declining since the mid-1950s.¹¹⁹ Today, private sector union density hovers at around 6 percent; public sector union density is much higher, but it also varies tremendously among different regions of the country. Moreover, although labor unions enjoy widespread and relatively bipartisan public support,¹²⁰ the Republican Party is mostly hostile to organized labor, making pro-union labor law reform very unlikely, especially at the federal level. This means a resurgence in union strength will have to come despite labor law, not because of it. There is a ray of hope, however: young workers have a remarkably favorable view of unions and unionizing, and are driving a new wave of organizing, especially among service workers.¹²¹ Whether young workers will be able to unionize in sufficient numbers to move the needle is unclear – but there is more reason for optimism on this topic today than at any point in the last three decades.