The Board majority found the rule at issue here (in Guardsmark): “While on duty you must NOT … fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees” to be similar to a rule in Lafayette Park Hotel, 326 NLRB 824 (1998), enfd 203 F.3d 52 (D.C. Cir. 1999) which stated “Employees are not allowed to fraternize with hotel guests anywhere on hotel property.” A limited dissent felt that Lafayette Park Hotel‘s rule was too broad and so was this one. I see significant differences in the two cases.
Lafayette Park Hotel is about employee-guest relations, and might reasonably implicate questions of adequate responsiveness to guests; Guardsmark is about relations between Guardsmark employees and between Guardsmark Employees and Guardsmark client employees.
The Lafayette rule regulated only conduct at the workplace. The Guardsmark rule purports to regulate on- and off-duty conduct regardless of location.
Lafayette used the phrase “fraternize”, which when used by itself is usually taken to mean “hang out”. The Board felt that “in context, the rule here is reasonably understood as prohibiting personal entanglements, rather than activity protected by the [National Labor Relations] Act.” Actually, it is pretty clear that this rule is meant to sound much stronger than the rule in Lafayette was meant to sound. It is significantly broader in the ways already mentioned, and its significantly broader in its description of the prohibited conduct. The rule says fraternize, adds date, and then adds “become overly friendly”. That phrase in particular is, in First Amendment terms, both overbroad and vague. From reading it, one has no idea of what sort of conduct is prohibited, and one senses that almost anything could be prohibited.
The Board attempts to justify this because of “heightened security concerns”. Yes, I’m sure a security contractor company can increase security by prohibiting friendships. Spartans and every army ever notwithstanding, security forces are just much more secure when their employees barely know the people they work with.
In response to publisher anxieties & thinly-veiled threats of litigation, Google is implementing an opt-out provision in its scan-copyrighted-library-books program, and delaying scans of copyrighted books until November. [google blog] This has been widely reported as Google backing down. See, e.g., “Chilled by Publishers” (BoingBoing), “Google Sells Out Users” (Copyfight). I agree, sell-out, chill, yes, yes, but am taking a moment to appreciate the sweetness of the opt-out option as default.
Siva Vaidhyanathan had a different take, predicated largely (it seems to me) on the fact that Google is a for-profit corporation. For once, I disagree with Siva, and on two grounds: both with library exceptionalism in this instance and the take on American Geophysical Union.
Ed Felten on Freedom to Tinker [8/9] talked about the DRM in Microsoft’s Longhorn-cum-Vista. Copyfight (8/9) summed it up and added this pithy observation: “[T]his isn’t about stopping mass copyright infringement or pleasing Hollywood. It’s about keeping “consumers” locked in and people who develop potentially competing products locked out.” See also Derek Slater at EFF Deeplinks (8/9).
On Balkinization, Brian Tamanaha ponders intelligent design, reminding us that the whole kerfluffle is not about debates between religion and science, but about debates between a few modern religious leaders who are picking issues:
Darwin’s 1859 publication of The Origin of Species incited a wicked backlash from religious quarters in the United States, pitting science directly against religion. But within three decades an accommodation had been achieved, as Richard Hofstadter described in Social Darwinism in American Thought (1944):
… Science, [Le Conte] urged, should be looked upon not as the foe of religion, but rather as a complementary study of the ways in which the First Cause operated in the natural world. Whatever science might learn, the existence of God as First Cause could always be assumed.
This raises the question: why has a sensible way to reconcile faith and science that has worked for so long become unacceptable to many religious leaders in this country? This is not like the other ongoing battles over religion in the public sphere and the separation between state and church (school prayer, Decalogue displays, funding for parochial schools), all of which raise debatable issues of public and private values.
Putting it this way helps keep the focus on the small set of religious leaders who are sowing all this unnecessary discord.
I feel I must document the provenance of this observation: I’m quoting Brian Tamanaha who’s quoting Richard Hofstadter who’s citing Joseph Le Conte who “followed” Asa Gray. I’m just tickled by the lengthy chain, but the observation stands on its own regardless of sources.
Of course, two hours later, the spouse is still sleeping like a baby, and now “Adelaide’s Lament” is going through my head. It’s my own fault for putting iTunes on random shuffle through my entire 80+G music library last week, but still, I last heard that song over a week ago. Probably at some point this morning I had a low-level meditation on my own minor cold and it triggered a “Guys & Dolls” flashback. Unlike LSD, perhaps “Guys & Dolls” really does hang out in your fat cells waiting to be re-triggered.