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Lawlor v. Shannon

ELR Citation: 18 ELR 21496
Nos. No. 86-2516-Mc, (D. Mass., 08/29/1988)

The court holds that a provision in Massachusetts' right-to-know law making communication of information obtained about workplace chemical hazardous a criminal offense violates the First Amendment, and the unconstitutional provision is severable from the rest of the statute. The right-to-know law requires public and private employers who manufacture or use toxic or hazardous substances to inform employees and community residents of the nature and effect of those substances in the workplace or community. The law makes it a criminal offense to communicate information obtained under the statute to others, with penalties of up to $5,000 in fines and up to one year in jail. The court first holds that the Massachusetts law's restriction on communication is not analogous to protective orders under Federal Rule of Civil Procedure 26(c). The potential for abuse in civil discovery is significant, and discovery may implicate privacy interests of the parties, thus justifying protective orders limiting communication of information learned through discovery even where First Amendment rights are implicated. The nature of the information in the right-to-know law, however, is contained in the statute itself, and involves no substantial privacy interest of the employer. Moreover, Rule 26(c) protective orders are granted on a case-by-case, good-cause basis, whereas the right-to-know law contains a blanket prohibition. The court then holds that the disclosure provision is an unconstitutional abridgement of protected speech under the First Amendment. The restriction on dissemination of information regulates speech content, and thus must be scrutinized more carefully than mere time, place, or manner restrictions. Promulgation of the section is within the state's police power, but the section does not further an important or substantial governmental interest. There is no evidence that defendants' concerns about industrial sabotage are legitimate, and no other states with right-to-know laws have experienced such problems. There is also no evidence that more traditional enforcement strategies for ensuring compliance with the statute would not work. Finally, the court holds that the unlawful section is severable from the rest of the statute.

Counsel for Plaintiffs
Charles C. Caldart
Public Interest Litigation Project
29 Temple Pl., Boston MA 02111
(617) 292-4800

Counsel for Defendants
Suzanne E. Durrell, Ass't Attorney General
One Ashburton Pl., Rm. 2019, Boston MA 02108
(617) 727-2200

Counsel for Amici Curiae
Marcia Drake Seeler
New England Legal Foundation
55 Union St., Boston MA 02108
(617) 367-0174