Paycom employs legal strategy of 1950s segregationists

Law & Principles

Ray Carter | October 28, 2022

Paycom employs legal strategy of 1950s segregationists

Ray Carter

In a recent court filing, Paycom has asked an Oklahoma court to order the release of information that would directly and indirectly identify specific individuals who accessed free-market materials from the Oklahoma Council of Public Affairs (OCPA).

Paycom’s request is similar to legal tactics used against civil rights groups that worked to overturn segregation in the 1950s, as well as more recent efforts targeting supporters of conservative policy organizations.

In its response to Paycom’s demand, OCPA noted that Paycom’s request “not only exceeds what is allowed under Oklahoma’s Discovery Code, but also violates OCPA’s constitutional rights along with those of the individuals Paycom seeks to identify and hunt down,” and that that “decades of case law” deem Paycom’s demand “both improper and unconstitutional.”

Prior court cases have noted the practical result of identifying private citizens who support policy groups is infringement upon those citizens’ First Amendment free-speech rights that can subject them to retaliation, potentially including physical violence.

In a Sept. 2 motion, Paycom’s attorneys at McAfee & Taft asked a judge to order the Oklahoma Council of Public Affairs to identify “all email addresses” of individuals who sign up for OCPA’s newsletters who might have received a March 23, 2020, story that briefly mentioned the public political advocacy of Paycom’s CEO, who called for broader COVID shutdowns in Oklahoma.

The company also asked the court to order OCPA to identify the individual IP addresses that accessed the news story on OCPA’s website.

OCPA has objected to those requests, noting OCPA’s member list is protected by the First Amendment and the information is immaterial to Paycom’s lawsuit. Paycom claims it has lost business due to OCPA publicizing the public political stance of the company’s CEO. OCPA’s response noted that Paycom already has the ability to demonstrate if it lost business due to publicity regarding its CEO’s political activity.

“At the end of the day, if Paycom wants to explore why someone ceased doing business with them, they have the information related to such customers or former customers and can make their inquiries without causing expense to OCPA and violating their and other individual’s constitutional rights,” OCPA’s response noted.

OCPA noted that Paycom instead “seeks to identify, track down, and interrogate every known individual choosing to associate with OCPA, directly treading over the First Amendment protections of these individuals’ right to association and privacy.”

Paycom Effort Echoes Past Cases

Paycom’s request for identifying information echoes the tactics seen in other cases nationwide over many decades. One of the most prominent cases with parallels to Paycom’s efforts occurred in the 1950s when the state of Alabama sought to force the release of the identities of individual supporters of the National Association for the Advancement of Colored People (NAACP) at a time the NAACP was working to overturn segregation laws.

National Association for the Advancement of Colored People v. State of Alabama ultimately went before the U.S. Supreme Court.

During U.S. Supreme Court oral arguments on the case on Jan 15, 1958, Robert L. Carter, general counsel for the NAACP, told the court, “We contend that if we (would) have disclosed the list of our members, they would have been subjected to possible harm, threats, and fears.”

During oral arguments on Jan. 16, 1958, Edmon L. Rinehart, an attorney who represented the state of Alabama in the case, insisted the state of Alabama wasn’t “going to bring any pressure to bear on these individuals” if they were identified.

But U.S. Supreme Court Justice Felix Frankfurter scoffed at that claim, asking if it was “inconceivable” that “a disclosure that I’m a member of the NAACP” could cause an individual to “lose my business.”

Frankfurter said it didn’t matter that the state compelled disclosure and that the associated retaliation might come from those outside government.

“The government isn’t shutting down the business, but it is taking action which results in the shutting down,” Frankfurter said.

The U.S. Supreme Court sided with the NAACP and ruled, “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

The court rejected the state of Alabama’s argument that “whatever repressive effect compulsory disclosure of names of petitioner’s members may have upon participation by Alabama citizens in petitioner’s activities follows not from state action but from private community pressures.”

“The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold,” the court opinion stated.

The U.S. Supreme Court waded into similar issues more recently with its 2021 opinion in Americans for Prosperity Foundation v. Bonta. In that case, the state of California sought to force certain tax-exempt entities to reveal the identities of numerous financial supporters, claiming disclosure was necessary for fraud investigations.

But the court majority concluded California’s regulation “lacks any tailoring to the State’s investigative goals” and as a result “every demand that might deter association ‘creates an unnecessary risk of chilling’ in violation of the First Amendment.”

The opinion also noted Americans for Prosperity “introduced evidence that they and their supporters have been subjected to bomb threats, protests, stalking, and physical violence. … Such risks are heightened in the 21st century and seem to grow with each passing year, as ‘anyone with access to a computer [can] compile a wealth of information about’ anyone else, including such sensitive details as a person’s home address or the school attended by his children.”

Those issues remain relevant today.

OCPA’s response noted that Paycom “appears to be engaging in a speculative fishing expedition” in order to “harass both OCPA and those individuals who choose to associate with OCPA” and in the process subvert “clear precedent protecting against this very circumstance.”

“Without limitation to the free reign which Paycom requests with the identity of OCPA’s supporters, the inevitable effect of producing such to an adverse party—particularly one specializing in individual’s personal data management—is a chilling effect of the desire to associate and deems privacy no longer essential or worthy of protection.”

Paycom Leadership Involved in Wide Range of Political Issues, Often at Odds with Conservatives

Paycom and its CEO, Chad Richison, have been active in Oklahoma state politics in recent years.

In a public letter released in March 2020, Richison called for temporary closure of a range of businesses, “which includes, but is not limited to, hair salons, nail salons, spas and massage parlors,” as part of the state’s COVID response. He also endorsed requiring grocery stores to provide “drive-thru pick up or delivery for all customers,” and mandating that undefined “critical” businesses be required to coordinate “with state government.” Richison also called on state government to mandate how “food preparation and other critical portions of the supply chain” are handled under undefined “newly established uniform standards to prevent transmission of the virus.” Richison also called for postponement of so-called “elective surgeries” and endorsed having the government collect “all essential medical supplies” normally used for those surgeries or by “med spas and other medical organizations.” And Richison called for a ban on “all non-essential” travel from Oklahoma airports.

Paycom sued the Oklahoma Council of Public Affairs after OCPA published a news story that briefly referenced Richison’s demands and linked to his public letter.

In December 2020, a judge dismissed Paycom’s lawsuit with prejudice, ruling that Paycom’s “claims against OCPA relate to or are in response to the OCPA’s exercise of the right to free speech,” and ruling that there was an “absence of any evidence of actual malice by OCPA.” However, that ruling was later set aside because Paycom successfully argued the judge should have ruled against Paycom sooner due to a deadline in state statutes. Despite the earlier ruling, Paycom has decided to continue with its lawsuit. Paycom’s demands for the emails and IP addresses of OCPA readers is the latest move in that lawsuit.

Paycom has been involved in other issues as well.

In March 2022, Paycom provided $50,000 to fund a lawsuit that seeks to force Oklahoma government to issue birth certificates listing genders other than “male” or “female,” and provided another $50,000 to an organization that opposes an Oklahoma law restricting women’s athletic events to biological females.

In a March 3, 2020 letter to the University of Oklahoma’s board of regents, Richison complained that the university's “previous diversity training efforts failed because they assured free speech protection.”

In a Nov. 27, 2017 letter, Richison declared former U.S. Sen. Tom Coburn and former Gov. Frank Keating were working “against our future with constant negative rhetoric and no workable solutions” because they opposed tax increases at a time Oklahoma’s working families had already experienced a massive loss of income and jobs.

Oklahoma Ethics Commission records show Richison has donated thousands of dollars to state political candidates and related entities, such as a $20,000 donation made to the Joy Hofmeister Defense Fund in 2019.

In 2021, Paycom announced it was the lead sponsor for “Advancing Oklahoma,” a program described as “a lengthy conversation about race and race relations in Oklahoma” that ultimately featured speakers who declared there is “a very high correlation between the most racist attitudes in America and white evangelical Christianity,” endorsed “defund the police” efforts, and declared football games at the University of Oklahoma involve repeated “celebration of white supremacy.”

Ray Carter Director, Center for Independent Journalism

Ray Carter

Director, Center for Independent Journalism

Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.

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