chilling case of Kate Bronfenbrenner, The

Academe, Jul/Aug 1998 by Schrecker, Ellen

KATE BRONFENBRENNER recalls that she had not made a particularly big deal out of her appearance before a "town hall" meeting in Pittsburgh organized by several members of Congress in conjunction with pending federal legislation to withdraw government contracts from firms that violate labor and safety laws. As one of the nation's leading authorities on union successes and failures in organizing and bargaining, Bronfenbrenner has been collecting information about specific companies and unions for more than ten years. Because of the comprehensiveness of her research and her position as the director of labor education research at Cornell University's School of Industrial and Labor Relations, Bronfenbrenner is often asked to give expert testimony, and so she treated the invitation to the May 17, 1997, meeting as a fairly routine matter.

At the meeting, some three hundred people, including four Democratic members of Congress and Republican senator Arlen Specter from Pennsylvania, heard Bronfenbrenner and thirteen other academics, labor leaders, workers, and attorneys speak about the inadequate sanctions for unfair labor practices under current law. In her written and oral testimony, Bronfenbrenner discussed the many ways in which determined antiunion employers try to prevent unionization. Much of the information she presented concerned Beverly Enterprises, Inc., which owns more than seven hundred nursing homes.

Nine months later, the company sued her for defamation in federal district court and asked for at least $150,000 in damages. Beverly Enterprises claimed that in her written and oral remarks Bronfenbrenner had libeled and slandered the company by describing it as "one of the nation's most notorious labor law violators," which uses "extreme" antiunion measures and repeatedly refuses to bargain. In conjunction with the pretrial discovery process, Beverly's lawyers requested that Bronfenbrenner turn over a wide variety of documents, including all of her research materials about campaigns to organize unions, her correspondence with the unions trying to organize at Beverly and with the members of Congress who had convened the meeting in Pittsburgh, and "any and all documents that reflect [her] application for and appointment to the faculty of Cornell University." Cornell is defending Bronfenbrenner.

Beverly has long been known for its antiunion activities. Since 1988, when Bronfenbrenner first became aware, in her words, of "the consistency and intensity of [the company's] union avoidance efforts," the National Labor Relations Board has found that the company committed numerous unfair labor practices. In fact, the board had so many cases pending against Beverly that it consolidated them into four separate complaints. The most recent one was upheld in November 1997 by an administrative law judge, who found Beverly's management so determined to fight unions that it was "more than willing to and frequently did resort to unlawful means." Similarly, in a 1995 report on federal contractors, the General Accounting Office listed Beverly as one of the top fifteen offenders.

In May, the federal district court considering Bronfenbrenner's case dismissed it on the grounds of absolute testimonial immunity. Under Pennsylvania law, that immunity protects comments made in the course of a legislative proceeding in the state. Fortunately, Pennsylvania's law is more protective of such testimony than is that of many other states. Even so, legislative privilege would not have protected Bronfenbrenner had she made her remarks in a classroom or at an academic conference, in a letter to a newspaper editor, or to a public commission studying law reform. Indeed, Beverly has filed an amended complaint with the court, arguing that remarks Bronfenbrenner made in a radio interview about Beverly's conduct were slanderous and not protected by testimonial immunity.

Beverly plans to appeal the court's decision. But even if the appellate court sustains the decision of the lower court, Bronfenbrenner still loses. Fighting a lawsuit, regardless of the outcome, invariably extracts considerable costs in terms of time, money, and emotional energy. Bronfenbrenner, who told the New York Times that she was "frightened and outraged," has suffered already. The case has diverted her from research and teaching and prompted a sense of insecurity about her position at Cornell. Such effects are often the reason that these cases are brought in the first place. Regardless of the merits of a defamation suit, it can silence individuals who are being sued and scare potential critics who fear that they, too, may face a suit even if they are telling the truth. The damage that such harassment by lawsuit does to free speech is obvious.

But as Bronfenbrenner's case reveals, a defamation lawsuit imposes a special penalty on academics, which goes to the heart of academic freedom. There is no question that the mere prospect of being sued, even when the charges are baseless, can inhibit one from writing or speaking about controversial issues. Chilling as such a possibility might be for most citizens, whose ideas and opinions rarely reach beyond their immediate circle of family, friends, and fellow workers, for professors, who are expected to communicate more broadly, the implications are devastating. Their very careers, after all, depend on teaching and publication.