UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

NORTHWEST AIRLINES, INC.,
Plaintiff,

v.

TEAMSTERS LOCAL 2000, et al.,
Defendants.

MEMORANDUM IN SUPPORT OF MOTION
TO DISSOLVE TEMPORARY RESTRAINING ORDER
AGAINST INDIVIDUAL DEFENDANTS
TED REEVE AND KEVIN GRIFFIN

Civil Action No. 00-08DWF/AJB

On January 5, 2000, the Court granted a temporary restraining order ("TRO"), accepting plaintiff's factual claim that Local 2000, and each and every one of the individual defendants, incited an illegal sickout. Most of the individual plaintiffs were not served until after the TRO hearing was over and the TRO issued, and thus they had no opportunity to call the Court's attention to the absence of evidence showing their involvement, not to speak of proving their non-involvement.

In this motion, Ted Reeve and Kevin Griffin, two individual members of the union who hold no union office, argue that there is no evidence of their involvement, and that misleading arguments were made to "show" their involvement. In fact, their only "offense" is that they exercised their First Amendment right to express dissatisfaction with company and union bargaining positions, and operated web sites to provide information about the situation and give other persons the opportunity to express their views. Accordingly, pursuant to (a) Rule 65(b), which sets stringent requirements for TRO's, (b) the Communications Decency Act, which gives internet providers immunity from liability for communications by others through their web sites, (c) the Norris-LaGuardia Act, which forbids any individual from being enjoined without clear proof of his personal involvement in unlawful activity, and (d) the First Amendment, which imposes stringent requirements on prior restraints against free speech, Reeve and Griffin ask the Court to dissolve the TRO against them.

STATEMENT

A. Facts.

The Court has ruled that Northwest is likely to succeed in proving that Local 2000 and its officers staged a sickout between December 21, 1999, and January 5, 2000. We do not quarrel with that finding for the purpose of this motion. The issue now before the court, however, is whether there is sufficient evidence that two individual defendants, who had no representation at the hearing that led to that decision, were party to that activity. As we now show, there is no such evidence.

Defendants Reeve and Griffin are high seniority flight attendants employed by plaintiff and rank-and-file members of Teamsters Local 2000. Neither holds any union position, either elected or appointed. (Griffin aff. ¶ 1; Reeve aff. ¶ 1.) Each independently responded to the unfolding drama of the contract negotiations by deciding to create web sites for the benefit of their fellow members. Griffin, as a project of his company, ClearDaze, created the Northwest Airlines Flight Attendant Contract Negotiations Forum shortly after the union announced that a tentative agreement ("TA") had been reached and would be submitted to the membership for ratification, but without disseminating the full text of the TA. Griffin aff. ¶ 6. Reeve created his web site, called The Independent Local 2000 News, in September, 1999, after the TA was rejected on August 26th, "to provide a reliable source of news and information to my fellow flight attendants" and "to combat the divisive effects of 'gossip and rumor.'" Reeve aff. ¶¶ 4, 5.

Each of the web sites presents to Local 2000 members an easily accessible source of information bearing on the ongoing contract negotiations. Reeve's site contains a history of Local 2000; its bylaws; a list of its officers and base representatives, with their e-mail addresses and telephone numbers; notices of membership meetings for the discussion of contract negotiations news and strategies; communications to all flight attendants by leading company officers regarding negotiations, and reports from a member of the union's Negotiations Committee; union "hotline" messages; an open letter to the company protesting its bargaining position, signed by hundreds of members; media reports on the contract negotiations; and a lengthy summary of the 1996 contract openers by both company and union. Reeve aff. ¶ 7. Griffin's web site presents comparative pay charts; the full text of the TA; contract "LowLights" ( referring to particularly unpopular provisions of the TA); a "TA Mark-up Forum" for comments by flight attendants on specific contract language in the TA; Local 2000's most recent LM-2 report; the Local 2000 bylaws; and the Alleghany-Mohawk Labor Protective Provisions ("LPPs"). Griffin aff. ¶ 7.

Unlike Reeve's site, Griffin's site hosts an open forum for Local 2000 members. Griffin aff. ¶ 7. Griffin opened the forum "to provide a place for Northwest flight attendants to communicate freely with each other about matters of concern to them as Local 2000 members and flight attendants employed by Northwest Airlines, "without the sort of political censorship that I and many other Local 2000 members felt we encountered in attempting to gain access to Local 2000's official web site." Griffin aff. ¶ 8. Presumably fearing retaliation, the overwhelming majority of users do not identify themselves by name. Griffin aff. ¶ 8. Like any other internet forum, all persons who know the site's URL may participate in the forum, under their own names, assumed names, no names, or other people's names. Imposters began to proliferate, including "Johnny and Jerry," who used the forum to exhort flight attendants to engage in a sickout and poked fun at and criticized management officials Richard Anderson and Hector Adler. Griffin aff. ¶ 11. Because "Johnny and Jerry" frequently alluded to "friends in high places," Griffin assumed that they were members of Northwest management who were participating in the forum to sabotage or undermine it. Griffin aff. ¶ 11.

In December, 1999, Griffin learned that Northwest had filed a defamation suit in Hawaii state court against several "John and Jane Does," for the apparent purpose of finding and silencing "Johnny and Jerry." Griffin aff. ¶ 11. Although he had not been served with any papers in that suit, Griffin became fearful that the Company might seek to hold him liable for the actions of "Johnny and Jerry," and he inquired about them. Griffin was informed by other flight attendants that "Johnny and Jerry" participated in the forum under a variety of names, and from a variety of remote locations. Id. ¶ 11. Griffin announced on his web site that the site had become a "monster," with imposters causing problems that warranted "killing" the forum. He promised to reopen it at a different location, accessible by password only. Griffin aff. ¶ 12. He did close the forum and reopen it later at a different location, but technical problems prevented him from limiting access to those with passwords. Id. ¶ 12. On December 8, he posted a message that begged fellow forum participants to

"please refrain from calling for certain actions that may be illegal. I know we all want results and we all wanted them yesterday if not three plus years ago but there are certain guidelines we have to follow even if NWA does not always do so. We must continue to keep the pressure on the leadership of the Local and the Company too.

...

So stay determined and keep the focus on the contract and job issues....

Griffin aff. ¶ 12; exh. F.

Meanwhile, on December 7, the union and the company met with the mediator for the first time following rejection of the TA, and the union presented its bargaining demands that outraged the company and prompted the mediator to recess mediated bargaining indefinitely. On December 10, Richard Anderson sent an e-mail to all flight attendants, claiming that the NMB chair had recessed mediated talks until the union "got real," accusing the union of being unprepared, of "bad faith bargaining," and of presenting demands worth "$2.5 billion above current operating expenses" that "would put our Company out of business" and "make a mockery" of the NMB process. Anderson closed by refusing to return to negotiations until "Local 2000 has prepared new, reasonable proposals." Griffin aff. exh. C. Fearing that flight attendants might start losing the war in the forum of public opinion, Griffin sprang to the defense in a December 12 posting to the forum. Griffin aff. ¶ 9(b) and exh. B. In that posting, Griffin outlined three single-spaced pages of steps that flight attendants could and should take to improve their bargaining position -- "with or without the union leadership help." The centerpiece of his December 12 plan of action was an aggressive informational picketing campaign. At the same time, he posted a potpourri of informational picket sign messages on the web site, urging members to print them and take them to copy shops for reproduction on poster boards. Griffin aff. ¶ 9.

Postings under assumed names and anonymous postings that called for a sickout appeared on Griffin's web site during December 1999. There was no way for Griffin, as webmaster, to censor such postings beforehand. Nor, since he maintained the web site as a hobby, did his full-time flight attendant position allow him to review methodically all postings to the site for their propriety or lawfulness. To assume responsibility for the postings to his web site would compel him either to close the site or quit his job as a flight attendant. Nor is it technically feasible to remove offensive postings without destroying the posting sequence, which is necessary to retain to understand the subjects of the postings and the controversies being debated. Griffin aff. ¶ 8.

On December 23, 1999, Griffin posted another plea to fellow members to stay focused:

"This forum was not created to bash Northwest Airlines or fellow crew members. This forum was created by myself and Randy to discuss contract issues Please stick to the topic of contract issues...."

Griffin aff. ¶ 10, exh. E (emphasis added).

With the exception of a three-day trip which, due to a severe ear and sinus infection, Griffin was compelled to drop from December 16-18 (that is, three days before the sickout began), he flew his full month's schedule in December and January, to date. Griffin aff. ¶ 3 and exh. A. Reeve flew his entire schedule in December and January, without any sick leave, including trips on December 21-22 and 24-28. Reeve aff. ¶ 3. Indeed, Reeve has never used sick leave at any time in his 10-year career as a Northwest flight attendant. Reeve aff. ¶ 2. Both Griffin and Reeve had scheduled days off for the remainder of the holiday season. Id. Thus, it is not arguable that either of them participated in a holiday season sickout. Both aver that they never at any time knowingly or intentionally advocated or encouraged a sickout, strike, or work slowdown or stoppage, Griffin aff. ¶¶ 13, 14; Reeve aff. ¶ 10, and there is no evidence that they did.

B. Proceedings to Date

This action was commenced on January 4, 2000, with the filing of a complaint and motion for a TRO. Neither service, nor any kind of informal notice, was provided to either defendant Griffin or defendant Reeve before the Court held a hearing on the motion for a TRO early in the morning on January 5; nor did plaintiff file any written explanation for its decision not to notify them. As a result, only the IBT, Local 2000, and Local 2000's president were represented by counsel at the hearing. Later that day, the Court concluded that Northwest was likely to succeed in proving that each defendant (except the IBT) had violated the RLA by instigating a sickout by plaintiff's flight attendants, and accordingly it ordered all defendants except the IBT to stop the sickout, to refrain from "approving" or "encouraging" or otherwise furthering the sickout, to do their best to prevent further recurrences of the sickout, and to notify all Local 2000 members of the order and its meaning. Griffin and Reeve promptly posted notices on their web sites describing the TRO and committing themselves to honor it, even while trying to set it aside, and imploring their readers to refrain from unlawful work actions before release from mediation. Griffin aff. ¶ 17; Reeve aff. ¶ 9.

Upon receiving requests from Griffin and Reeve for representation, undersigned counsel repeatedly asked plaintiff's counsel to supply them with any evidence that supports the claim that Griffin and Reeve had incited the sickout. Letters from Paul Alan Levy to Timothy Thornton and to John J. Gallagher, attached. This request led plaintiff's counsel to admit that the exhibit attached to the affidavit supporting the TRO, which allegedly showed Griffin's liability, was not in fact a document authored by Griffin. Letter from Neal Mollen to Paul Alan Levy, attached. Beyond that, plaintiff has supplied no evidence supporting its claims against defendants Griffin and Reeve.

Meanwhile, the represented parties stipulated, in a telephonic hearing before the Magistrate Judge, that the TRO would be continued until February 19, and that a hearing on the requested preliminary injunction would be held on February 15. Defendants Griffin and Reeve were not represented at this proceeding, and neither they nor their counsel had notice that it would be held. They were also not consulted on the question of whether any such stipulation should be entered. As they now show, not only is there no basis to extend the TRO against them, but it should never have been entered against them in the first place.

ARGUMENT

I. CONTINUATION OF THE TEMPORARY RESTRAINING ORDER AGAINST REEVE AND GRIFFIN WOULD VIOLATE RULE 65 AND THE DUE PROCESS CLAUSE.

The first reason why the TRO should be dissolved against defendants Griffin and Reeve is that it would violate their due process rights as well as Rule 65 of the Federal Rules of Civil Procedure to continue it against them.

This case was filed on an emergency basis, based on a factual scenario which, the Court was persuaded, warranted emergency relief. But even in emergency situations, the Federal Rules and the Due Process Clause give individual defendants protections which, we believe, were disregarded in this case, creating identifiable prejudice to defendants' rights.

Plaintiff filed its complaint and motion for a preliminary injunction on January 4, 2000. To the best of our knowledge, no effort was made to serve defendants Reeve and Griffin before the hearing was held, or even to notify them that a complaint had been filed against them and that a TRO hearing was going to be held. As their affidavits reflect, both defendants received the papers after the hearing and after the Court had issued the January 5 TRO. Griffin aff. ¶ 5; Reeve aff. ¶ 4.

Rule 65(b) specifically limits the power of courts to issue a TRO without prior notice to the opposing party. The rule has both a substantive and a procedural limitation. A TRO may be granted without notice only if it "clearly appears from specific facts shown by affidavit or by verified complaint that immediate and irreparable injury . . . will result . . . before the adverse party or that party's attorney can be heard in opposition." Rule 65(b)(1). It is important to note that irreparable injury is not alone enough ­ the requirement is for irreparable injury before the opposing party can be given a chance to defend himself. Heyman v. Kline, 456 F.2d 123, 127 (2d Cir. 1972). See also Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 180 (1968). Moreover, before the Court may issue a TRO in those circumstances, the rule requires a written justification for the non-service ­ "the applicant's attorney [must] certif[y] to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.." Rule 65(b)(2).

These requirements were added to Rule 65 in 1966 in response to the due process requirements of the Fifth Amendment, which forbid the taking of liberty or property without notice and an opportunity to be heard. 1966 Advisory Committee Notes to Rule 65(b); Wright, Miller & Kane, Federal Prac. & Proc.: Civil 2d § 2951, at 262-264 (1995). "The evidentiary quality of the affidavit must be sufficient to convince a court that there is immediate and great danger of irreparable injury that necessitates dispensing of some of the trappings of due process." Id. § 2952, at 276. The normal reason for allowing a TRO without any notice is where the defendant, once put on notice of the impending action, is likely to take an action, such as destroying crucial evidence, disposing of contested property by putting it beyond the reach of the courts, or giving out privileged information, that would make an injunction fruitless if the Court waited until the defendant had notice. E.g., First Technology Safety Sys. v. Depinet, 11 F.3d 641, 650-652 (6th Cir. 1993).

There is no reason why plaintiff could not have provided notice to the defendants of its pending action against them. Both defendants work for the plaintiff, and plaintiff has their home addresses and telephone numbers because, in the course of their employment, they receive various written and oral notices from the plaintiff. Plaintiffs also maintain records showing the work schedules of each of the defendants. Reeve reported to work for a trip on January 2, when he could have been served at the workplace, and reported back from that same trip on January 4, when he could have been served at the workplace again. Reeve aff. ¶ 3.

Moreover, although there are obvious difficulties in shipping documents to defendants in various parts of the country, the papers are too voluminous to have been prepared in just a few hours in time for filing on January 4. Plaintiff must have known earlier in January that it was going to seek emergency relief, and it could have notified defendants of its plans at that time. Indeed, it could have called the defendants after filing the complaint and motion papers and offered to send the papers electronically. Certainly, plaintiff knew the web site addresses of both defendants Griffin and Reeve, since the thrust of its complaint against these defendants involved the communications on their web sites, and defendants' e-mail addresses are revealed on their web sites. See http://www.cleardaze.com/ClearDaze2000/contact_us.htm; http://home.pacbell.net/treeve/. Instead, defendants learned of the lawsuit against them only from the press, and they did not get the papers in the suit against them until after the Court entered its order against them. In these circumstances, we must assume that the failure to contact the defendants directly in order to give them a chance to defend themselves was a deliberate litigation strategy to put them at a disadvantage.(1)

Moreover, defendants were prejudiced by the failure to give them the proper notice, because they were unable to show that the verified complaint and attached evidence were devoid of any evidence showing any likelihood of success on the claims against them. The complaint made broad allegations about what the "Defendants" did as a group, not specific to Griffin and Reeve. The attached affidavit of Steven Simmons made specific allegations about what several individual defendants allegedly did in furtherance of the sickout. With respect to defendant Griffin, the affidavit states that he maintains a web site that hosts a forum that is used by the leadership of Local 2000 to communicate with Local 2000 flight attendants about unlawful job actions, ¶ 7(c), and that Griffin himself posted a message that implicitly called for a sickout over the holiday period. ¶ 16. Paragraph 16 averred, erroneously, that the entire message was attached as Exhibit 30, and purported to provide a summary of the message. Had Griffin been individually represented at the TRO hearing, he could have pointed the Court to the immunity provision of the Communications Decency Act, 47 U.S.C. § 230, which forbids any information "content provider" on the Internet from being held liable based on content provided by some other person. See infra at pages 16 to 17. Moreover, he could have called the Court's attention to the fact that the document attached to the affidavit as Exhibit 30 was written by Gary Helton, not by himself. Plaintiffs' counsel have since acknowledged that they attached the wrong document to the affidavit as Exhibit 30. See attached letter from Neal Mollen, Esquire. The actual document, as discussed below at pages 18 to 20, has been quoted entirely out of context in the Simmons affidavit; in context, the message urges flight attendants to contact the media and engage in other lawful forms of advocacy. Griffin aff. exh. B.

The one party that was represented separately at the January 5 TRO hearing, the IBT, was able to persuade the Court that it was not involved in the unlawful sickout, and accordingly the Court did not include it in the TRO that it entered against the remaining defendants. We believe that, had Reeve and Griffin been able to be represented, they too could have persuaded the Court that there is no likelihood of success against them individually. As it was, the Court lumped these rank and file members in with the other individual defendants who were officers or agents of Local 2000 in finding a likelihood of success. Given plaintiff's deliberate disobedience of Rule 65(b)'s notice requirement, we hope and trust that the Court will give this question de novo consideration in response to the arguments made below, even if it does not lift the TRO solely based on these violations of Rule 65(b).

In addition to providing strict procedures before a TRO may be granted without notice, Rule 65(b) also allows a TRO to be effective for only ten days, and to be extended only once for another ten days. This additional due process protection is intended to impose severe limits on the restriction on individual liberty or deprivation of property that may be effected without the opportunity to be heard. Under Rule 6(a), weekends and holidays are not counted for periods of less than ten days, and so the TRO against defendants Reeve and Griffin is due to expire on January 20, 2000. We understand that the TRO has been extended by agreement between counsel for the plaintiff and certain of the defendants, but of course Reeve and Griffin were not represented in that hearing either.

Recognizing that the expiration of the ten-day period was approaching, undersigned counsel Mr. Levy wrote to plaintiff's counsel on January 9 (letter attached), expressing concern that defendants Reeve and Griffin had been sued based on their having internet sites and other protected free speech activity, noting that Exhibit 30 was not as represented in the Simmons affidavit, and asking for any specific evidence that these defendants had incited the sickout, indicating that, without such information, defendants would be compelled to ask the Court for relief from the TRO. On January 12, plaintiff's counsel John J. Gallagher, Esquire, and Neal Mollen, Esquire, contacted Mr. Levy by telephone and stated that they believed the plaintiff had such evidence. They also urged Mr. Levy to wait for the preliminary injunction hearing to make any arguments to the Court, because, they said, they expected to get more evidence about various individual defendants in discovery. During the conversation, Mr. Levy reiterated his request for any evidence on which the TRO or its continuance was based, and plaintiff's counsel said that they would provide it. Later that day, plaintiff's counsel faxed to Mr. Levy a document which, they said, should be have submitted to the Court as Exhibit 30. Letter attached.

However, no other evidence purportedly supporting the claim that Reeve and Griffin had advocated the sickout was supplied. Accordingly, on January 14, 2000, Mr. Levy again wrote to plaintiff's counsel, reminding them that they had yet to send him any specific evidence of the involvement of Griffin and Reeve, and asking for any documents filed with the Court in compliance with the notification requirements of Rule 65(b). In addition, he pointed out that neither defendant had called in sick during the period of the alleged sickout, and so the only basis for enjoining them would have to be the claim of illegal advocacy. Mr. Levy urged opposing counsel to supply such information immediately ­ if they had any ­ so that he could evaluate it before filing this motion with the Court. Letter attached. Unfortunately, plaintiff's counsel have not responded.

In sum, a grave injustice has been done to these two individuals. They have been found likely violators of the Railway Labor Act, and subjected to a serious prior restraint that not only forbids them from participating in any sickout, but controls what they may say about the sickout, through a proceeding that was held in violation of their constitutional due process rights, not to speak of in blatant violation of Rule 65(b). Plaintiff has refused repeated requests for any evidence it may have of their personal involvement in the illegal sickout, and has supplied only a single document, the Exhibit 30 that was mistakenly not attached to the papers originally served with the TRO motion, and which, upon examination, was completely misrepresented by the Simmons affidavit which served as the sole basis for the TRO against these defendants. Adding insult to injury, no injunction bond was posted, in violation of the virtually mandatory character of the bond requirement of the Norris-LaGuardia Act and Rule 65(c).

II. CONTINUATION OF THE TRO AGAINST DEFENDANTS REEVE AND GRIFFIN IS NOT JUSTIFIED BY THE RAILWAY LABOR ACT, AND WOULD VIOLATE THEIR RIGHTS UNDER THE FIRST AMENDMENT, THE NORRIS-LaGUARDIA ACT, AND THE COMMUNICATIONS DECENCY ACT.

A. No Evidence Supports the Conclusion That Plaintiff Has Any Likelihood of Success in Establishing Defendants' Personal Participation in the Sickout or in Inciting the Sickout.

Regardless of whether the Court agrees that plaintiff's procedural failures are alone a sufficient reason to dissolve the TRO as to defendants Griffin and Reeve, the TRO should be rescinded because it violates their rights under federal labor law, federal internet law, and the First Amendment. We take as a given that a sickout before release from mediation is an illegal form of economic action that may be enjoined under the Railway Labor Act. We need not address, for present purposes, the findings in the TRO that Northwest Airlines is likely to succeed in showing that there was a sickout in which some persons participated, and that the union participated in calling it. Those factual questions will be open for re-examination at the preliminary injunction hearing, at which point the question for the Court will be whether each of the defendants was engaged in "mere advocacy [or] advocacy 'directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action." Healy v. James, 408 U.S. 169, 188 (1972), quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) and citing several other cases.

Our points of departure from the Court's reason for enjoining these two defendants are that:

(1) the injunction is based solely on advocacy of illegal action;

(2) the TRO is not justified because there is no evidence that these defendants personally engaged in illegal advocacy; and

(3) because the TRO is a prior restraint of their speech, the balancing of the equities strongly favors these defendants.

We take these three points in turn. First, the moving papers allege, and the Court found, that a large number of employees engaged in an organized campaign of false sick calls in order to reduce the number of workers available for duty, and hence to put bargaining pressure on the plaintiff, and that the union bore responsibility for this campaign. The cases cited by plaintiff make clear that injunctions can be issued against individual members who have been found to have engaged in illegal sickout or other concerted activity, National Airlines v. Machinists, 416 F.2d 998 (5th Cir. 1969); Louisville & Nashville RR Co. v. Bass, 78 LRRM 2393 (W.D. Ky. 1971), but the more common approach is to enjoin only the union that is encouraging the illegal strike, and to enjoin the union's officers and representatives as a way of forcing the union to obey the injunction. E.g., Railways Clerks Lodge 2029 v. Railway Express Agency, 391 F.2d 657 (8th Cir. 1968); American Airlines v. Allied Pilots Ass'n, 53 F. Supp.2d 909 (N.D. Tex. 1999). The complaint, however, does not specifically allege that either Reeve or Griffin were personally engaged in the conduct of calling in sick when they were not sick ­ that is, personal participation in the sickout ­ and in any event the attached affidavits of Reeve and Griffin make clear that they worked all of their scheduled days during the sickout. Indeed, defendant Reeve has not called in sick even once over the course of his ten-year employment by Northwest Airlines. Hence, there can be no question of these defendants being participants in the sickout. Nor, for that matter, does either Reeve or Griffin hold union office; thus they cannot be enjoined as a means of reaching the union through its officers and employees. Accordingly, the only basis for enjoining them is the proposition that they personally induced others to engage in the unlawful sickout activity.

Moreover, the law is crystal clear that individual members may not be held liable for the acts or advocacy of others; it must be proved that each member sought to be held liable personally engaged in the unlawful advocacy. Three different sources of law entitle defendants to demand such specific proof. First, section 6 of the Norris-LaGuardia Act, 29 U.S.C. § 106, provides,

No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.

The courts have routinely held that, just as an association or union cannot be held liable for the acts of individuals without clear proof of authorization, so "[i]ndividuals . . . will not be guilty merely because they are members of officers of a guilty association. Nor are individuals guilty because of the acts of other individuals in which they did not participate, or which they did not authorize or ratify." Carpenters v. United States, 330 U.S. 395, 410-411 (1957).

Second, insofar as the liability of defendants Reeve and Griffin is predicated on their web sites, the Communications Decency Act ("CDA"), 47 U.S.C. § 230(c)(1), provides that "[n]o provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider." Every court to consider this issue has ruled that the CDA creates a federal immunity against liability under any law, federal or state, that might impose liability on an internet content provider for content supplied to a website or e-mail by a different person. Zeran v. America Online, 129 F.3d 327, 330-331 (4th Cir. 1997); Lockeed Martin Corp. v. NSI, 985 F. Supp. 949, 962 n.7 (C.D. Cal. 1997), aff'd, 194 F.3d 980 (9th cir. 1999); Blumenthal v. Drudge, 982 F. Supp. 44, 49-53 (D.D.C. 1998). Thus, the allegation in the Simmons affidavit, ¶ 7(c), that Local 2000 leaders "use" Griffin's web site to communicate with members about unlawful actions is insufficient as a matter of law to support relief against Griffin. Similarly, the general allegations in the complaint, ¶¶ 25, 26, and affidavit, ¶¶ 7(c), 7(d), that Reeve and Griffin maintain web sites cannot, without specific proof that either individual has placed unlawful messages on those web sites, provide any basis for finding likelihood of success against them on the merits of the claimed incitement of the sickout, again, as a matter of law.

Last, but certainly not least, the First Amendment protects defendants against any finding of liability based on the conduct of others. This fundamental principle was explained in detail in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982). A key issue in that case was whether Charles Evers could be held personally responsible for violent conduct that had accompanied a boycott that he had advocated; the Supreme Court held that, for such legal responsibility to be imposed, it must be shown that Evers himself had authorized, directed or ratified the unlawful aspects of the activity. Otherwise, First Amendment principles would be violated because he would be guilty only by association. "Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims." 458 U.S. at 920. Evers' mere attendance at meetings of the group, id. 924-925, mere participation in activities associated with the group that were legal in themselves, id. at 925-926, and, specifically relevant to this case, emotionally charged rhetoric that called for unity, id. 928, do not make the speaker liable for unlawful conduct by his hearers:

An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the profound national commitment that debate on public issues should be uninhibited, robust and wide-open.

Id. (quotation marks and citation omitted).

Neither of the defendants involved in this motion were personally involved in appeals for the lawless action that the Court has found occurred ­ the holiday sickout. Plaintiff has made no specific allegations about Reeve's advocacy ­ it simply alleges that he has a web site and lumps him in with the other defendants in charging him with encouraging the sick out. Reeve's own affidavit specifically states that he made no appeal for or support of the idea of a sickout. Without any evidence directed to Reeve individually, the injunction against him obviously cannot stand.

Plaintiff did purport to introduce evidence specifically related to Griffin, but its evidence was distorted. In the affidavit of Steve Simmons, ¶ 16, a reference at the end of an internet posting that called on flight attendants to "use the holidays like we planned" was made to appear to be a call for unlawful action. In order to effect the deception, plaintiff attached as Exhibit 30 a completely different document, sent by a different individual.

According to Simmons, Griffin

posted a message urging flight attendants to "take some action." Exhibit 30. Mr. Griffin urged flight attendants to work to rule, to decline to fly high time when asked by Northwest schedulers, to pressure Northwest flight attendants who were on special assignment (especially those who train other flight attendants) to stop their special assignments, and to "use the Holiday season like we planned."

(emphasis added in original affidavit; not in original document).

Just before entering the case, undersigned counsel pointed out to plaintiff's counsel that the Exhibit 30 attached to Simmons' affidavit not did not contain any such language and, in fact, was not written by Griffin. Plaintiff then supplied defendants' counsel with a different document which, they said, had mistakenly been replaced by the document that was filed. We invite the Court to compare Simmons' sworn account of Griffin's posting with the actual document, which is attached to Griffin's affidavit as Exhibit B and has an entirely different tone, even though each of the words quoted by Simmons does appear there.

The message is captioned "It is Time for actual involvement. We need to get some action going." It begins with a long paragraph lamenting that the union seemed unprepared for real bargaining, such as by failing to prepare any specific counter-proposals to management's position, and urging members to "get the word out" to management, the union, and the public, just as Northwest had been saturating the public with its position in the negotiations. Griffin followed this with twelve numbered paragraphs specifying what union members should consider doing. First, he urged members to help force Northwest to bargain by taking various actions and reaching out to the media. Second, he urged members to undertake informational picketing. Paragraph 3 dealt with "Work to Rule statements," saying that Ashley McNeely had printed a "Holiday trouble-shooting guide," that should be generally disseminated. This was a reference to a booklet that the Union has routinely distributed to its members every holiday season since at least 1992, whether or not there were ongoing contract negotiations, as an aid to members attempting to cope with company orders to waive contractual flying time rights during peak holiday traffic times. See McNeely aff. Fourth, he urged members to stop doing "high time . . . favors to the company."

Fifth, he urged flight attendants to stop volunteering for retraining instruction, letting Northwest hire people specially for that, as required by a Local 2000 bylaws amendment proposed in January 1999 and adopted by the membership in June, 1999, long before the membership rejected the TA. See http://www.local2000.org/ldocs/vote.html. Because Griffin knew that no training was scheduled before January, this suggestion could not possibly have disrupted holiday traffic, and Griffin clearly was not intending this suggestion to do so. Griffin aff. ¶ 9(e). Sixth, he again urged a campaign of informational picketing at all airports, which he emphasized "is legal and lets people vent." Seventh, he urged members to work to focus public attention on several specific figures, including politicians and the President of the IBT, Jimmy Hoffa. Eighth, he listed some issues that ought to be included on informational picket signs. Ninth, he urged members to activate phone trees so all members would know about these legal activities. Tenth, he urged members to work together to devise good contract language to propose, because he felt the union was not doing this. Eleventh, he urged efforts to get better TV and press coverage, plus billboards and web sites and T-shirts and other ways of communicating the message. Twelfth, he urged members to raise money to carry on this publicity campaign.

Paragraph 13 is the one whose language is quoted and emphasized in the Simmons affidavit: "We need to do all this soon. Let us use the Holiday season like we planned." Plaintiff wants the Court to infer that this was a covert call for a sickout; but, in context, it is quite apparent that it is a call for members to initiate the legal communications efforts discussed throughout the memorandum. Indeed, later in the paragraph he suggests that he wants to "throw the union off guard and let them know 'we', the membership have taken union matters into our own hands like we did on 26th of August" ­ an obvious reference to the entirely protected activity of voting "no" on the proposed collective bargaining agreement. See Griffin Aff. ¶ 9(d). Moreover, he goes on to another paragraph in which he urges members to "call today and volunteer," to work hard to hammer out language so that there would be a basis to ask the National Mediation Board to release the union for strike action, and generally to bombard the union-side negotiators to work harder. Finally, he concluded with a plea to union members to download proposed signs for demonstrations and rallies from his web site, that he had designed and uploaded to the site contemporaneously with his December 12 message, and to discuss the situation through chat rooms.

It is quite apparent that this is not a message calling covertly for anything, but rather a message that overtly urges members to use their right of free speech under the First Amendment and under section 101(a)(2) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411(a)(2), to express their views within the union and to management and the public, through overt and not covert action. Although we can appreciate how the Court could have concluded otherwise in light of the misleading summary in Simmons' affidavit, the hypothesis that Griffin would have undertaken this lengthy list of overt legal actions in order to create the opportunity for a covert call for a sickout is simply too absurd to be credited. And because plaintiff's counsel have not responded to repeated requests that they provide any other evidence they have of Griffin's alleged complicity in the sickout, it must be assumed that they filed this lawsuit against Reeve and Griffin without any other evidence against them, hoping to find evidence through discovery.

The insufficiency of this evidence to support the claim that Griffin personally incited the sickout is particularly apparent in light of the Norris-LaGuardia Act's express requirement of "clear proof" of direct participation or authorization before an individual may be held responsible or liable for illegal activity in a labor dispute. 29 U.S.C. § 106. The Supreme Court has held that this statutory language requires courts to apply the evidentiary standard of "clear, unequivocal and convincing proof." UMW v. Gibbs, 383 U.S. 715, 737 (1968). At best, under the company's construction, Griffin's December 12 posting is an ambiguous document, but ambiguous evidence must be treated as favoring the defendant in determining whether there is clear and convincing evidence. United States v. Montague, 40 F.3d 1251, 1254-1255 (D.C. Cir. 1994). Thus, there is no evidence supporting the conclusion that plaintiff has any likelihood of success in proving that either Reeve or Griffin incited members to participate in the sickout.

B. Because the TRO Is a Prior Restraint, the Equities Tip Sharply in Favor of Defendants Reeve and Griffin.

The TRO also cannot be extended because, absent a final determination that Griffin and Reeve did, in fact, violate the RLA through their statements, the TRO is a classic prior restraint that is forbidden in all but the most extreme circumstances by the First Amendment.

The Supreme Court has repeatedly held that an injunction which bars defendants from speaking, printing, or broadcasting statements about topics of public concern are prior restraints that require the most extraordinary justifications before they may be approved. New York Times v. United States, 403 U.S. 713(1971); Near v. Minnesota, 283 U.S. 697 (1931). When an injunction is entered based on a mere finding of likelihood of success in establishing illegal conduct, instead of a final adjudication, it is a prior restraint subject to strict First Amendment scrutiny. Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993); Dataphase Systems v. CL Systems, 1980 U.S. App. LEXIS 14978, 6 Media L. Rep. 2163 (8th Cir. 1980). See also Carroll v. Commissioners of Princess Anne, 393 U.S. 175 (1968). The standard is particularly stringent when the injunction is a TRO entered without notice and any opportunity to be heard. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226-227 (6th Cir. 1996).

The Court appears to have decided that a lesser standard could be applied in this case because the TRO supposedly does no more than forbid the defendants from engaging in an unlawful strike. Unfortunately, the injunction is much broader than that. In addition to prohibiting each person enjoined from "calling," "participating in," or "continuing" the sickout, the TRO extends to purely speech-related activities such as "approving of" or "encouraging" a sickout. It is understandable that a union entity that has called an unlawful strike could be subjected to an order requiring it to counteract the effects of its illegal activity, but not that individuals who were in no way responsible for the sickout should be forbidden to express any opinion about the sickout if that opinion is other than a negative one. After all, it is an elementary First Amendment principle that citizens are entitled to express their sympathy for illegal activities, so long as they are not guilty of inciting them. Bond v. Floyd, 385 U.S. 116, 132-134 (1966).

Yet so long as the TRO is effective, defendants Reeve and Griffin must take the risk that anything they say on the subject of the sickout could put them in jail or subject them to prohibitive fines, if the Court later decides that the opinions they expressed amounted to "approval" or encouragement of the sickout activity, or indeed of any other activity later determined by the Court to be a "concerted refusal to work." Given the fact that neither defendant ever placed any messages on his web site encouraging a sickout, but simply urged members to engage in various lawful forms of protest, and have been found guilty of inciting the sickout because of that protected speech, it is entirely reasonable for them to conclude that further protected speech might also be held to be continuation of their unlawful conduct and thus a basis for holding them in contempt.

Even worse, persons subjected to the TRO are compelled affirmatively to engage in speech. The TRO directs them to "take all reasonable steps within their power to prevent the aforesaid actions," and to notify all Local 2000 members "of the content and meaning of this TRO." It could be argued that this language applies only to the union and its officers, inasmuch as Reeve and Griffin have no "power" over other members and no mailing list for all members of the union. However, we have asked plaintiff's counsel whether they believe that this paragraph applies to persons such as Griffin and Reeve who hold no union office and they have stated that, in their opinion, it does. Thus, the two defendants must risk the possibility that anything they say or do, or fail to say or do, might deprive them of their liberty if the Court later decides that they did not say or do enough, or did or said too much. Therefore, in an excess of caution, both Griffin and Reeve have posted notice of the TRO on their web sites. But the continued application of the TRO to them has a severe chilling effect on their exercise of their free speech rights.

Even more troubling is plaintiff's claim that, merely because other persons have placed communications supporting the sickout on the open forum that Griffin maintains on his web site, Griffin himself may be held liable. Therefore, Griffin must worry about whether he must engage in censorship of postings on his web site in order to protect himself from contempt liability. The large number of postings to date make this a virtually impossible task; Griffin would have to quit his job and become a full-time censor of his web site if the injunction were construed to require this. This is precisely the quandary that Congress wanted to avoid creating for internet hosts, and why it enacted 47 U.S.C. § 230. And yet the wording of the "prevent" language of paragraph 3 of the TRO is certainly susceptible to the construction that Griffin must actively monitor posts to his forum and erase any expression of sympathy for the sickout. This is an especially compelling reason to act immediately to relieve Griffin of his duty to obey the TRO.

In contrast to the severe and irreparable injury that this prior restraint will continue to have on Reeve and Griffin, lifting the TRO as to these two defendants will have virtually no impact on plaintiff at all. The company will continue to enjoy the benefits of the application of the TRO to the local union and all of its officers, employees, and other representatives, who do have power over the membership of the union, not to speak of full control of the channels of communication within the union. We understand that the company has been giving credit to the TRO for ending the sickout, and there is no reason to believe that releasing two individuals whose personal responsibility for the sickout has not been proved will have any effect on Northwest's continued ability to serve the flying public. Thus, not only does the TRO cause severe irreparable injury to Griffin and Reeve, but its continuation as to them is not necessary to avoid irreparable injury to the plaintiff. Accordingly, the Court should dissolve the TRO as to Griffin and Reeve.

CONCLUSION

The TRO entered against Griffin and Reeve is both procedurally and substantively improper. Lifting the TRO would not deprive plaintiff of the ability to pursue this action against them. If plaintiff has sufficient evidentiary basis, consistent with Rule 11, to continue to litigate against these two defendants, the order we ask the Court to enter will not prevent that. It will simply relieve the defendants of an unlawful prior restraint, and give them the opportunity to defend themselves before the Court decides whether they should be enjoined along with the union and the other defendants.

Respectfully submitted,


Paul Alan Levy

Public Citizen Litigation Group

1600 - 20th Street, N.W.

Washington, D.C. 20009

Barbara Harvey

LAPP, LAURIE, LIBRA, THOMSON,

& STOEBNER

By:

Gerald T. Laurie

Andrew Tanick

Attorneys for Griffin and Reeve

Dated: January 19, 2000

1. 1 Defendant Reeve did not receive any pleadings in the lawsuit until January 7. Reeve aff. ¶ 4. Defendant Griffin was in Hawaii, where he lives, when he heard about the suit late on January 4; he did not learn of the Wednesday morning hearing until it was too late either to communicate with the Court to express his desire to come to the hearing, or to catch a plane back to the mainland that could get him to the courthouse in St. Paul in time for the hearing at 8 AM on January 5. Griffin aff. ¶ 5.


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