- Interview by
- Chase Burghgrave
Freedom of speech has been a battleground between the Left and the Right for at least a century. Yet, in recent years, this conflict has taken a peculiar twist, with leftists frequently presented as opponents of civil liberties and conservatives as defenders of freedom of expression.
Whether or not this is accurate (hint: it’s not), the depiction is a reversal from previous decades, when the Right launched censorship campaigns to further conservative causes and leftists cast themselves as unapologetic partisans of free speech. It also gets the origins of the modern civil liberties movement backward.
As legal historian Laura Weinrib writes in The Taming of Free Speech: America’s Civil Liberties Compromise, it was labor organizers who formed the earliest pro–free speech groups in the United States. Weinrib focuses in particular on the rise of the American Civil Liberties Union (ACLU), whose radical founders viewed “the right of agitation” — the right to strike, to picket, and to boycott — as both constitutionally protected and essential to workers’ ability to resist the power of their employers.
Jacobin contributor Chase Burghgrave recently spoke with Weinrib about the radical roots of free speech rights, the ACLU’s gradual deradicalization (becoming an organization “neither anti-labor nor pro-labor”), the Right’s adoption of free speech language for anti-labor ends, and much more.
Your book shows that, prior to the ACLU’s founding, free speech activists were fighting businesses’ use of censorship to quash labor organizers. At the center of this was something you call “the right of agitation.” Can you explain what this was, and how it was connected with civil liberties activism in the early twentieth century?
We are accustomed to thinking of freedom of speech as protecting the exposition and advocacy of ideas. The heroes in most accounts of the modern First Amendment are the soapbox speakers who demanded the right to espouse their visions of a just society, however radical or revolutionary.
But the right of agitation articulated by the labor activists who spearheaded the civil liberties movement in the late 1910s and early 1920s aligns only partially with this understanding. Drawing on a then-familiar distinction between agitation and propaganda, these advocates envisioned agitation as an arousal to action, in contrast to the dissemination of ideas. And the breed of direct action they had in mind was labor action, designed to counter the consolidation of capital with the organized power of workers.
What early free-speech activists sought to protect above all were labor’s most powerful weapons: the rights to strike, picket, and boycott. These were tactics that judges had routinely construed as economic rather than expressive, and coercive rather than persuasive. To claim them as constitutional rights, as early labor activists did and the ACLU eventually did, too, was bold.
You open your book by recounting the formation of the Commission on Industrial Relations and its findings. What was this commission, and why was it so important in future civil liberties advocacy?
The Commission on Industrial Relations was created by Congress in 1912, in the wake of a high-profile dynamite attack on the Los Angeles Times building. The commission arose at the instigation of a group of prominent lawyers, scholars, social workers, and public figures. Many of them had helped draft legislation designed to alleviate poverty, and some had assisted labor unions in organizing efforts. All of them thought labor violence was a reaction to economic inequality, and, in particular, to the role of law in reinforcing economic inequality.
The commission is crucial to understanding the emergence of civil liberties for three reasons. First, it highlights the perceived importance to both workers and reformers during the early 1910s of free speech and other so-called personal rights, a category that contemporaries contrasted with property rights. The modern concern for civil liberties is typically traced to the prosecution of pacifists and conscientious objectors during World War I. But the commission’s testimony and reports leave no doubt that Americans were very troubled by the suppression of speech well before entry into the war.
Second, and relatedly, the history of the commission makes it clear that free speech was understood differently in the 1910s than it was in the late 1930s and 1940s, when it assumed its modern and familiar meaning. In this formative period, the commission’s witnesses were just as likely to blame employers for infringing on their free speech as they were the government. By the same token, the speech in question was often speech intended to recruit fellow workers into a union, to refrain from buying or handling unfair (i.e., nonunion) products, or to dissuade nonunion employers from crossing a picket line.
Finally, even the staunchest opponents of censorship in the early- to mid-1910s rejected the idea that the judiciary was the institution best suited to ensure freedom of speech. They lambasted courts for invalidating important progressive legislation like minimum wage and workers’ compensation laws. They also resented courts’ frequent resort to labor injunctions to shut down union activity. They saw the judiciary as a threat to free speech, not its potential protector.
The forerunner to the ACLU, the National Civil Liberties Bureau (NCLB), was established in 1917 amid labor agitation and intense class struggle. How did this environment shape its early activity?
Historians and constitutional law scholars have long emphasized the wartime work of the NCLB in extending legal representation to draft resisters and critics of the war. But to understand the early ACLU properly, we need to shift our focus from world war to class war.
The NCLB was defending a particular subset of antiwar dissenters: socialists and other economic radicals who believed that American participation in the war was a concession to industrial interests and that the costs of war fell disproportionately on the working class. In fact, the defendants in almost all of the important wartime prosecutions were denouncing capitalism more than militarism.
The ordinary understanding of the NCLB’s wartime work is that the organization’s leaders were so principled in their commitment to free speech that they were willing to defend even criticism of the war, deeply unpopular though it was. In reality, the ordinary understanding has it exactly backward.
This was a period in which most progressives were deeply opposed to invoking judicial power to enforce constitutional rights, let alone to challenge the constitutionality of democratically enacted legislation. For that reason, many progressives opposed constitutional litigation to invalidate the Selective Service or Sedition acts, even if they also opposed conscription or censorship.
But the NCLB’s leaders were so concerned to preserve economic agitation that they were willing to use a tool that other progressives rejected as illegitimate and antidemocratic.
What was the early ACLU’s political coalition, and how did it shape its vision and strategy?
When the NCLB reorganized as the ACLU in 1920, its leaders described themselves as labor partisans, and they thought of their work as paving the way for peaceful revolution. At the same time, they thought that their new organization would be most successful if it could cultivate partnerships outside labor and radical circles. To that end, they actively sought support from progressives, who increasingly were calling themselves liberals, and even from conservatives.
The ACLU worked hard to keep this coalition together. Over time, it toned down its radical rhetoric. It litigated in areas that had broader buy-in, like sex education and artistic expression. It argued about the sufficiency of evidence and procedural irregularities instead of mounting sweeping challenges to criminal syndicalism laws.
In the process, its attitude toward constitutional litigation changed. Early on, the ACLU approached trials as opportunities to publicize employer abuses and to expose the courts as hypocritical — as more interested in protecting the property rights of employers than the speech rights of workers. Even the ACLU’s lawyers hoped that unsuccessful constitutional challenges would build momentum for measures to limit judicial review. Over the course of the decade, the ACLU attracted new members and donors who preferred incremental judicial victories to the old program of generating propaganda through defeats in court. Still, throughout the 1920s, the core leadership regarded the right of agitation as the organization’s overarching goal.
You mentioned that the ACLU did include some conservatives. How did conservatives come to advocate for civil liberties in this organization founded by radicals, and how did their defense of civil liberties differ from their liberal and left counterparts?
Conservative support for civil liberties before the New Deal was pretty tepid. Although conservatives did worry about government intrusion on individual rights, they were more concerned about preserving the rule of law. During the first Red Scare, they pushed through a wave of state sedition laws and called for vigorous prosecution of labor radicals and alleged subversives.
The prosperity and reduced labor activity of the 1920s created room for collaboration between the ACLU and conservatives, but the onset of the Great Depression rendered future cooperation precarious. The strike wave that swept the United States in 1934 might have driven conservatives out of the civil liberties coalition entirely. But it didn’t. In stark contrast to earlier periods of labor militancy, a critical mass of conservatives began to imagine a strong First Amendment as a solution to class unrest rather than an obstacle.
There are a few reasons for the change in direction. First, in fending off tighter regulation and intrusive investigations by the Roosevelt administration, respect for the Bill of Rights made an appealing rallying cry. Second, and more important, conservative lawyers and their corporate clients were consumed with anxiety about the survival of judicial review. In the past, conservatives had staved off efforts to curtail judicial review by raising the specter of socialism and by underscoring the importance of property rights to economic stability and the American way of life. The crushing poverty of the Great Depression made the old arguments a hard sell.
Given strong support for court-curbing among even mainstream politicians, conservatives were casting about for a way to repackage judicial review as an institution that served ordinary Americans. They found it in the very civil liberties cases that the ACLU had litigated over the past two decades, usually with strong opposition from corporations and the organized bar. And so, when President Roosevelt announced the court-packing plan, the American Bar Association (ABA) launched a public relations campaign to highlight the Court’s commitment to the enforcement of “personal rights,” including the rights of unions to organize.
Of course, the court-packing plan eventually failed, in part because it became unnecessary. With its famous 1937 “switch in time,” the Supreme Court began to uphold New Deal legislation. Most contemporaries thought that the so-called constitutional revolution had ended matters — that the Supreme Court, going forward, would defer to democratic majorities and get out of the business of invalidating legislation on constitutional grounds.
How did liberals and radicals react to this shift?
This is where the story gets most interesting. Many New Deal enthusiasts were perfectly satisfied with the new state of affairs. For example, the National Lawyers Guild championed free speech and labor rights as policy goals rather than constitutional limitations; after considering its implications for civil liberties, the organization supported the court-packing plan and undertook a study of proposed amendments to limit judicial power. The International Juridical Association, an organization of left-wing labor lawyers, put out a pamphlet arguing that only elected representatives could be trusted to enforce the Bill of Rights “in the interests of persons instead of wealth.”
For these groups, the threat of reinvigorating property rights outweighed the potential gains of judicial enforcement of civil rights and civil liberties. But for the ACLU, the court’s new deference toward economic regulation made a judicial strategy for enforcing civil liberties even more alluring. Over the coming months, the organization doubled down on its litigation campaign. For assistance, it turned not only to sympathetic liberals, but also to the conservative bar.
Conservative lawyers eagerly took up the civil liberties baton, as did the corporate clients they represented. According to the ABA, the positive publicity that flowed from its efforts to publicize the Supreme Court’s civil liberties cases during the court-packing fight was unprecedented. Defending civil liberties promised to attract new members and improve lawyers’ negative reputation. To that end, the ABA created a Special Committee on the Bill of Rights, whose first action was to file an amicus brief on behalf of the ACLU’s efforts to extend constitutional protection to labor organizers in Jersey City.
Meanwhile, the US Chamber of Commerce and the National Association of Manufacturers mounted public relations campaigns to equate free enterprise with free speech, free press, and free religion, and to expand them all simultaneously. They immediately understood that the First Amendment could substitute for substantive due process in challenging government regulation.
By the end of the decade, the ACLU was siding with business groups in their litigation against the National Labor Relations Board (NLRB), which (after the infamous Battle of the Overpass) had prohibited the Ford Motor Company from issuing anti-union communications to its employees. Labor lawyers countered that employer anti-unionism, especially in the context of violent union-busting and other flagrant violations of the National Labor Relations Act (NLRA, or Wagner Act), was an exercise of economic coercion rather than expression, and thus outside the legitimate scope of the First Amendment. Many within the ACLU agreed, pointing to the patently hierarchal economic relationship between employers and employees that made meaningful discussion impossible.
For the ACLU’s core leadership, however, erecting a line between expression and economic coercion endangered the right of agitation — which, after all, was premised on eroding precisely that traditional distinction. They thought that the best way to protect the collective power of workers was to abstract free speech away from its material preconditions as well as its presumptive effects. And so, in a move that tore the organization in half, the ACLU joined business advocates, the mainstream press, and the ABA in arguing that the NLRB’s construction of the Wagner Act was an unconstitutional infringement on “employer free speech.” To constitutionalize the rights to picket and boycott, the ACLU expunged considerations of economic inequality from the definition of First Amendment expression.
What became of the “right to agitation” after the New Deal?
The right of agitation reached its zenith in 1940, when the Supreme Court declared in Thornhill v. Alabama that labor picketing was protected First Amendment expression. For a brief moment, it seemed that the ACLU’s litigation strategy had worked: according to Justice Frank Murphy, “free discussion concerning the conditions in industry and the causes of labor disputes” was core First Amendment expression.
But the Court quickly backed away from its sweeping rhetoric in Thornhill. It was one thing, said scholars and judges, to leave labor’s tactics to the democratic process rather than enjoining them for infringing upon the constitutional rights of employers and anti-union employees. It was another thing entirely to shield labor’s tactics from government oversight by treating them as constitutionally protected speech.
After a strike wave again roiled the nation in the wake of World War II, the notion that mass picketing and secondary boycotts might enjoy constitutional protection became especially unpalatable. The 1947 Taft-Hartley Act sharply curtailed unions’ rights to engage in concerted activity. And the Supreme Court, even as it extended ever greater protection to picketing and boycotts in other domains, routinely upheld restrictions on organized labor.
Today, federal labor law prohibits private-sector workers from engaging in secondary boycotts and imposes all kinds of limitations on labor picketing. Most states flatly forbid public-sector workers from going on strike. The Supreme Court has rejected First Amendment challenges to these restrictions. But it has dramatically expanded the First Amendment rights of corporations and anti-union litigants, most notably in Janus v. AFSCME last year.
Given this complex historical relationship between civil liberties and the Left, how should we think about free speech?
If one shares the ACLU’s founding commitments to social and economic justice, I think there are at least three possible directions the history of civil liberties might lead.
First, it could be that the failure of the ACLU’s early vision was historically contingent. In other words, we could emphasize that the ACLU’s strategy was briefly successful. The First Amendment protected the tools of activists not only in the labor context, but also in the vitally important work of dismantling Jim Crow. We could revisit the split decisions that led us down our current path and reflect on how easily the Court might have reached different conclusions on the First Amendment status of recognitional picketing and secondary boycotts, not to mention campaign finance regulation or commercial speech.
On this account, the 1930s ACLU was right about free speech, it was right about the Constitution, and it was right about the courts. The solution, then, would be to recover a First Amendment vision that takes seriously workers’ rights — and rights to undertake meaningful structural social and economic change — and to persuade the Supreme Court that that alternative, lost vision is preferable. Needless to say, that makes judicial appointments really important.
The second possibility is that the ACLU’s expansive vision of expressive freedom was compelling, but that the organization was foolish to invest in a counter-majoritarian judiciary as an agent of change. That was the view of many of its contemporaries, who insisted that the best way to defend free speech was through democratically elected representatives — assuming a fully inclusive electorate and a truly representative government — or through administrators and expert bureaucrats. The problem, in this view, is fundamentally an institutional one, and the solution is to temper judicial power.
A third possibility is that the ACLU made a more fundamental mistake, insofar as it unequivocally elevated free speech above all other values. In practice, of course, the Supreme Court trades free speech off against other considerations all the time: laws prohibiting threats, extortion, and criminal incitement (not to mention securities regulation, copyright restrictions, and medical disclosure laws) all regulate speech.
The wrong turn, from this perspective, is that early civil libertarians were so committed to a sweeping First Amendment that would encompass labor activity that they made it seem illiberal to question the primacy of free speech over other values — not just public safety and national security, but also equality. This view, like the others, considers free speech to be extremely important, but it stresses that rights routinely come into conflict, and it demands a searching inquiry into which rights take precedence when they do.
I’m sure there are other possible conclusions one could draw from the history, and understanding the origins of the modern First Amendment won’t tell us which of these readings, if any of them, is the best. What I do think the history can tell us is that we’ve been too credulous in accepting the traditional narrative about the trajectory of the First Amendment. Free speech in America has not progressed inevitably toward ever-expanding protection of the causes and tactics that the Left holds dear. A fuller account reveals that activists fought hard to write their agenda into constitutional law, and that their victory was partial at best.