Paycom loses in attempt to chill free-association rights

Law & Principles

Ray Carter | November 17, 2022

Paycom loses in attempt to chill free-association rights

Ray Carter

Paycom has lost its most recent assault on the First Amendment in its ongoing dispute with the Oklahoma Council of Public Affairs (OCPA).

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

The company’s request echoed the legal strategies used by segregationists targeting the National Association for the Advancement of Colored People (NAACP) in 1950s Alabama.

However, an Oklahoma County district judge denied Paycom’s request to compel OCPA to reveal the potentially personally identifying information of its supporters or those who follow OCPA’s work, finding it was not relevant.

In a Sept. 2 motion, Paycom’s attorneys at McAfee & Taft asked a judge to order OCPA 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 how many individual IP addresses accessed the news story on OCPA’s website.

OCPA 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 can already determine if it lost business because of its CEO’s political activity by simply contacting its former clients.

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 rein 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,” OCPA’s response stated.

Paycom’s request had parallels to a 1950s case in which the state of Alabama sought to force the release of the identities of individual donors to 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, which sided with the NAACP and ruled that “privacy in group association may in many circumstances be indispensable to preservation of freedom of association.”

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, unspecified “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.

In a 2021 earnings call, Richison indicated the COVID-19 pandemic financially benefited his company by prompting more businesses to use providers like Paycom.

Paycom sued the Oklahoma Council of Public Affairs after OCPA published a news story that briefly referenced Richison’s March 2020 demands and linked to his public letter.

Paycom officials were also active in this year’s gubernatorial race, providing financial support to Democratic gubernatorial nominee Joy Hofmeister. Public records show several individuals working for Paycom or sharing an address with a Paycom employee—including Paycom CEO Chad Richison and Charis Richison—were financial backers of Hofmeister’s campaign.

During the campaign, tens of millions of dollars were spent by nebulous special-interest organizations on ads attacking incumbent Gov. Kevin Stitt. Many of those groups are not required to disclose their donors, and it is not known if or to what degree Paycom officials helped fund the attack ads.

Former U.S. Rep. J.C. Watts, who now sits on Paycom’s board of directors, did an ad for one of the outside groups in which he endorsed Hofmeister. A recent U.S. Securities and Exchange Commission filing shows that Paycom has provided Watts $311,720 in total annual compensation as a board member, including $86,750 paid in cash and $224,970 in stock awards.

In an election-night tweet, A.J. Griffin, director of government and community affairs for Paycom, suggested voters living outside Oklahoma City and Tulsa are retrograde thinkers holding the state back.

Stitt carried 74 of Oklahoma’s 77 counties, while Hofmeister prevailed only in Oklahoma, Cleveland, and Tulsa counties. Griffin responded by tweeting a meme of one individual (labeled “voters in OKC and Tulsa”) physically dragging another individual (labeled the “rest of Oklahoma”) into a car that was labeled the “21st Century.”

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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