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by Meg Reuter
Lincoln Center For The Arts, Not For Free Speech
(July '01) The food service employee union, HERE (or more formally the Hotel Employees and Restaurant Employee union) has tried to organize the catering employees of Lincoln Center's concessionaire for quite some time, without luck. The struggle has been acrimonious and has enveloped not only the concessionaire, called Restaurant Associates, but also Lincoln Center and the Metropolitan Opera. There have been many trips to court. One was brought by the opera company trying to stop the union from bombarding its patrons and donors with accusations that the Met tolerated mistreatment of the food service workers. Another was brought by the union seeking to use the Plaza to stage a rally on behalf of the workers. That is the one I would like to describe to you.
In May 1999, the union asked the City Parks Department for a permit to hold a rally in the Lincoln Center Plaza to protest the concessionaire's treatment of the employees. The rally never happened--and a federal judge has just decided that the union has no cause to complain.
The City Department of Parks actually owns the land upon which Lincoln Center sits. The Center operates, maintains, and manages the property under an agreement with Parks, except for Damrosch Park. Based on this city ownership, HERE presumed that Parks would handle its permit request in the same manner that the agency would make permit decisions for any other city park. They were wrong. The management agreement allows Lincoln Center to control the use of the Plaza, and Lincoln Center refused the request, explaining that it had a policy against use of the Plaza for any political speech. Undaunted, the union sued in federal court claiming that its First Amendment free speech rights were violated because this was a public park and use of the park cannot be judged based on the content of its message, political or otherwise.
The union's first attempt was unsuccessful. US District Judge Lawrence McKenna found that Lincoln Center's policy was viewpoint neutral, meaning that they didn't base their decision on whether they liked or disliked the protesters' message. The court also pointed out that the prohibition against political speech was reasonable in light of the Center's artistic mission.
HERE disagreed and tried again. They searched and found seven news articles dating back to 1980 that reported all types of rallies, including non-arts events, that took place outside Lincoln Center. They brought these articles to the judge's attention, arguing that it proved that Lincoln Center authorized numerous non-arts events, and that its denial of HERE's rally was not viewpoint neutral at all, but rather showed Lincoln Center's active discrimination against the union and its message.
A new judge heard this phase of the case, US District Judge Kevin T. Duffy. Judge Duffy was unimpressed. He retorted that the newspaper reports merely described marches that were planned to stop at Lincoln Center, protests that occurred across from Lincoln Center, or rallies that had yet to take place at Lincoln Center. According to Judge Duffy, none of the articles indicated that Lincoln Center's prohibition against non-arts related events was inconsistently applied.
Judge Duffy also refused to view this case as one about the use of a public park, where first amendment privileges are the most vigorous. The court acknowledged that the Plaza is a city-owned park and is used as open space for the public to congregate, factors which would tend to indicate that public speakers should be accorded the broadest free speech privileges reserved under the constitution. Nonetheless Judge Duffy ruled that the Plaza was not so open, was designed to be a place apart, and dedicated to performing arts. Because of that, the city and Lincoln Center as its agent, could limit speech so long as the limits were reasonably related to the nature and use of the property. Here reserving the Plaza for arts-oriented events was reasonable.
Meg sounds off: Don't forget the little guys
It's worth reminding ourselves the debt we owe to unions. The union movement has been instrumental in creating a middle class. Just think, without unions no auto workers would be able to send their children off to college. Now just think of scores of restaurant workers, unskilled and low skilled workers serving wine and clearing away someone's dessert plate, in the same venerable hall that caters to famously capricious opera divas.
I do not profess to know the merits of HERE. I do know the merits of union representation. The concession contract between Restaurant Associates and Lincoln Center is up for renewal at the end of July. It behooves Lincoln Center and the Metropolitan Opera to encourage their vendor to meet with the union and find a non- adversarial way for the employees to indicate whether they want the HERE union to represent them and negotiate on their behalf. If ever there was a ripe time for encouragement, now is the time.
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