- Interview by
- Daniel Denvir
When Americans think of the American Civil Liberties Union (ACLU), most imagine an organization committed to defending free speech regardless of its content. The ACLU will defend a leftist’s right to burn a flag, a Nazi’s right to march in the streets, and, astoundingly, even a corporation’s right to “speak” through campaign donations, as seen in its defense of the Supreme Court’s Citizens United decision.
The main impression Americans have of the ACLU is that the organization’s commitment to free speech trumps any particular political ideology. But that’s not how things started. The ACLU emerged during World War I as a crusader for the radical labor movement. Its original mission was to protect the First Amendment rights of groups like the International Workers of the World (IWW) as a means to revolutionary ends — a far cry from its current image as an objective supporter of civil liberties. Where it originally defended free speech as a labor movement tactic, it now defends free speech as a neutral principle in its own right, including the anti-union speech of bosses and the political speech of corporations.
How did we get here from there? In her book The Taming of Free Speech: America’s Civil Liberties Compromise, Laura Weinrib traces the evolution of the organization over its century-long existence, and the arc of modern constitutional liberalism more broadly. The Dig host Daniel Denvir sat down with Weinrib to talk about the development of the ACLU, the origin of the concept of civil liberties, and the broad left’s love-hate relationship with the courts.
What does civil liberties mean today and what is the American Civil Liberties Union?
Civil liberties today means a constellation of rights that are asserted against the state. They’re typically tied to autonomy. They are asserted against the state as opposed to private actors (this is a key part of the story I’ll be telling), and are enforced by the courts. So our modern understanding of civil liberties is this notion that people can have a lot of space to engage in personal activity, expression that may be unpopular, and that the state should, for the most part, stay out.
And in particular, I want to focus on our modern understanding of the First Amendment, which is this idea that the First Amendment protects the right of speakers to express ideas, however unpopular or subversive, and that if the government tries to silence or punish the speaker for their views, that speaker can turn to the courts, and the courts are going to rely on the First Amendment to overturn a conviction or to invalidate a suppressive law. So in other words, we have this idea that the First Amendment is perhaps the quintessential civil liberty. Civil liberties are these rights held by individuals against the state.
The ACLU as an organization is committed to advancing those civil liberties. There are a lot of aspects to the ACLU’s agenda today, but it’s this First Amendment project in particular that has been at the core of popular understanding of the organization really from its inception — or if not its inception at least from 1940, which is when I argue the modern concept of the First Amendment took shape.
By contrast, in the early twentieth century, it was labor radicals at the ACLU and its predecessor organizations who began to embrace and define civil liberties as fundamentally linked to what you call the right to agitation. What did agitation mean at that time, and how did it go beyond or differ from this now conventional distinction between, on the one hand, expression that’s protected by the First Amendment, and, on the other, actions that are not?
If you open up a contemporary labor law casebook, you’ll see that the rights that I’ve suggested were core to the right of agitation — the rights to engage in labor picketing, and the rights to engage in boycotts, including secondary boycotts — are heavily regulated and do not today receive First Amendment protection. They’re just outside the scope of what the First Amendment protects.
This is puzzling because actually picketing and boycotts in other contexts are considered absolutely core expressive material covered by the First Amendment. You have famous cases like NAACP v. Claiborne Hardware Co. involving boycotts. You have all the cases protecting civil rights picketing during the middle of the twentieth century that basically hold out this activity as core protected expression. But the kind of activity that’s not protected now — activity that is considered to be in the courts’ view conduct rather than speech or coercive rather than persuasive — is the very labor activity that the early ACLU and its allies within the labor movement were determined to protect.
Now, it might be worth saying at the outset that this was a really awkward fit for the First Amendment, and there had been efforts by Samuel Gompers of the American Federation of Labor (AFL) and others to try to get some of this activity protected. They were essentially laughed out of court. So this was always an audacious claim. When the ACLU started making it, it didn’t actually expect to win. And so one of the things we really need to talk about is why this became a First Amendment strategy at all. The ACLU’s initial commitment to the right of agitation, which was modeled on the commitments of the IWW and other radical labor organizations, was not at first a judicial vision at all.
Let’s get into the history. You write, “While the worst repression came in wartime, the regulation of expression was a routine affair in 19th century America.” To set some historical context, from the 1798 Alien and Sedition Acts to the eve of World War I, what was the status quo? What was normal when it came to government regulation of expression, and then the judiciary’s relationship to evaluating that regulation’s constitutionality?
It was routine in nineteenth-century life to limit in many ways the sorts of things people could say. Now, this isn’t to say that there was no commitment to free speech. On the contrary, throughout American history, pretty much everyone has declared themselves to be in favor of free speech. The question, as one early-twentieth-century reporter put it, was how “free” free speech should be. And that’s where regulation comes into play, and was routine. So anything that was perceived to cross the line in terms of public order, public safety, or morality was routinely suppressed both by neighbors, private actors (sometimes lynch mobs), and also by government actors.
And while there were occasional efforts, especially in state courts, to try to assert free speech defenses to prosecutions for engaging in what was considered to be dangerous speech, courts almost never even considered those arguments seriously. And there’s no case of the Supreme Court striking down a law for infringing on free speech prior to the interwar period.
One thing I should say in this context is that the First Amendment, in terms of its text, applies only to the federal government. It begins “Congress shall make no law.” And, until it was incorporated into the Fourteenth Amendment during the interwar period, it didn’t even bind the states or local actors.
Which is a pretty huge loophole.
It is a pretty huge loophole. In their own constitutions, and also in lots of non-constitutional law, states did protect speech in all kinds of ways. But when push came to shove, if speech was considered disorderly, threatening, or even uncivil, it was shut down and there were no meaningful constitutional protections in place.
When the ACLU was founded after World War I, you write, “It declared itself an adjunct of the radical labor movement.” But before we get to the ACLU and its predecessor organizations that were founded during World War I, let’s discuss the labor movement of that era. What did the labor movement in both its mainstream and radical currents look like in the 1910s? And more generally, what was the state of American industrial conflict?
One of the major arguments in the book is that the civil liberties movement, the modern civil liberties movement, was born not out of World War I, as the conventional story ordinarily casts it, but rather out of class war. And when I say class war, I mean it. So there were bombings, violent struggles on the streets and the factories, and mass protests that were perceived by everyone involved as extremely intense and, in some cases, quite threatening.
That said, the mainstream labor movement tended to be at some remove from the violence. So the AFL, by this point, after flirting with some more radical methods in the late nineteenth century, had settled into a focus on improving wages and working conditions, essentially working within capitalism. And it was focused on representing its members within established trade unions, in particular skilled workers. On the other hand, there were increasingly other parts of the labor movement that were committed to a broader vision of what economic change through labor organizing could look like.
The main organization I talk about in connection with the history of the civil liberties movement is the IWW. They had split off from the Socialist Party because of a disagreement about whether change should be accomplished through economic methods or political methods. They rejected the emphasis on politics. What they wanted was something they called “the revolutionary general strike,” which was this notion that the workers would simultaneously lay down their tools, so that the owners of capital would have no choice but to turn the means of production over to them, and that in this way peaceful, revolutionary change could occur.
The IWW is important to this story in large part because of one of its strategies during the first two decades of the century, which have gotten a fair amount of attention in the literature. That strategy was what were called the “free speech fights,” which were initially a means of actually trying to get protection for IWW recruitment through its hiring halls in order to bring workers into the movement. But those efforts to organize were routinely shut down. Now, this was nothing new. Socialists had also long been silenced for engaging in street speaking and pamphleteering, and they too had made claims about their free speech being violated. But when the socialists did it, they actually seemed to want to bring about meaningful constitutional change and expansion of political accommodation. Maybe not so much at the level of judicial interpretation, but at least in terms of political accommodation of unpopular speech.
The IWW, by contrast, because they did not trust state actors of any kind (whether the courts or administrators or even legislatures), preferred to get arrested for the purposes, as they put it, of showing up the hypocrisy of the courts. This was a way of basically shutting the judicial system down. So they would show up on street corners, start reading (maybe from a labor text, maybe the First Amendment or the Constitution), and get themselves arrested, flooding the jails with the goal of essentially forcing the officials to release them because they simply had no more capacity. The result was brutal arrests and also brutal mob violence directed toward IWW organizers.
Unsurprisingly, given everything we were just discussing, labor radicals of that era regarded the judiciary and the Constitution in many cases as reactionary obstacles rather than allies in their struggle. What did public policing of labor organizing look like at the time, and what role did the judiciary play in it?
Courts played a few roles in policing labor activity during this period. The most important, the one that was most abhorrent to the labor movement, were their roles in issuing what were known as labor injunctions. Labor injunctions were shutdowns of labor activity enjoined on a number of theories. Some of them had to do with common law, property rights. Some of them had to do increasingly with notions that strike activity interfered with the rights of employers or nonunion workers. Sometimes they were operating through antitrust law, which, despite carve-outs for labor, had been used to go after the concerted activity of workers.
But the key point is that when unions engaged in concerted activity, the courts routinely stood in the way and blocked their ability to do so. I’ve spoken a bit about the free speech fights, and the free speech fights captured one part of workers’ perception that their speech rights were being trampled. The laws at issue in those cases were typically bans on public speaking or leafleting. But the other part — and this was the part that was really crucial to labor — is less recognizable today but really mattered at the time. And that was the class of restrictions targeting strikes, pickets, and boycotts. Sometimes that took the form of anti-picketing laws. More often it took the form of labor injunctions issued by courts.
To understand what courts were doing here, we may need to just pause for some terminology. What did it mean to strike in this period? The strike was, at its basic level, a systematic temporary quitting for the purposes of inducing the employer to grant some demand of the striker, accompanied by an effort to prevent others from taking the place of the people who quit.
Strikes were sometimes spontaneous expressions of solidarity. But more often they were coordinated efforts to apply economic pressure, and that’s what made them effective. So an employer who failed to meet a union’s demand risked spoilage of goods, contractual damages due to missed deliveries, and reputational harms. That was especially true if the workers managed to discourage replacement workers from taking their jobs. By the late-nineteenth century, the right to engage in what was known as a simple strike was actually pretty well-established. Workers could quit their jobs collectively for the purposes of raising wages or for the purposes of improving working conditions at their own workplace. And maybe they could even post a couple of pickets who would peacefully inform customers that there was a labor dispute going on.
But workers wanted more than the right to engage in a simple strike, because the reality was that simple strikes rarely accomplished anything. Employers would respond to worker demands by hiring strikebreakers or by bringing in spies and private security guards to discourage union activity in the first place. I should say some employers also required workers to sign what were known as “yellow dog contracts,” which were agreements not to join a union. So union organizers who tried to recruit workers who had signed yellow dog contracts were liable for tortious interference for contractual damages.
What did unions do in response? They turned to more aggressive tactics. They stationed mass pickets to deter strikebreakers and sometimes to close off access to employer property. They tried to close the shop — in other words, they tried to secure agreements from employers that the employer would only hire union members. They also engaged in secondary strikes and secondary boycotts. Those labor actions put pressure on third parties to cease business relations with the primary target. So even a secondary employer that had a friendly relationship with the union would actually be subject to sanctions if it continued to do business with the primary.
I want to mention one more aspect of this, which is important to understand. I think other labor histories sometimes gloss over this point, but these tactics could be quite hard on their targets. Sometimes a small employer in a small town could not afford wages at union pay scale. And so maybe the only way to compete with large, unionized manufacturers was to sell their hats at lower prices, to draw on a famous case about this. So the workers at that shop might be perfectly willing to accept lower pay because the alternative was, say, to leave their hometown, or to not have employment at all.
But the union that represented the workers at the large factory knew that allowing the small shop to continue to operate, to continue to undersell them, would undermine their own long-term efforts to raise wages. They might picket retail stores that sold nonunion hats to pressure them with the goal of shutting that nonunion producer down. Or take for example a union member who failed to honor a boycott. That worker risked expulsion from the union, which in a well-organized trade might mean risking not just their current job but future employment. And sometimes this even carried over to family members of strikebreakers who were subject to union discipline.
I’m saying all this because I think it’s really important to understand what the consequences of this labor activity were. Often, we sort of present it as if unions were just sort of engaging in a celebration of solidarity, but actually they were exerting economic pressure. That was the point. That was why it worked. And when it worked, it was really powerful. But courts were not inclined to see this as speech, and not inclined to allow it to proceed at all.
So we have to keep in mind that these were the kinds of labor tactics that workers in the early twentieth century were using, that they were trying to get protected, and that courts were enjoining. In other words, courts were subjecting unions to orders saying, You can’t do this. And this is what the early ACLU tried to protect as First Amendment activity.
Given labor injunctions, the eagerness with which courts convicted strikers as well as organizers who were engaging in speaking and pamphleteering, and the fact that courts were using a particular style of reasoning (often called legal formalism or classical legal thought) to invalidate efforts to protect that activity — given all of this, there was the sense in the period that the courts were engaged in a big game of “Heads I win, tails, you lose.” There was the sense that basically any time you turn to the courts, it was going to side with employers.
There were differences of opinion about why that might be. Some people thought it was because of graft and bribery. Maybe the judges were in the pocket of the employers. Others had more sophisticated critiques of the way that legal reasoning was infused with concepts that were antagonistic to group rights and collective power. Some thought it was about the social circles judges ran in, or their law school education.
But for all those reasons, the response was that the entire constitutional system was stacked against workers. Courts had undercut labor’s most significant gains time and again. And the solution, labor activists thought, was to strip the authority of the courts, not to expand it.
It wasn’t just the labor movement that opposed judicial power and proposed curbing it. Many progressives advocated for the ability to popularly recall judicial decisions or to simply end judicial review.
Who were the progressives? What was the Progressive Era, and how did that all relate to the labor movement and labor radicals that we’ve been discussing?
Progressivism is a notoriously hard concept to define. It’s really hard to generalize about who the progressives were. There have been generations’ worth of articles arguing about this point. I’ll say they fought for everything from tenement housing laws to the income tax to municipal ownership of public utilities, but also things like prohibition and even eugenics. So needless to say, there was a lot of disagreement among progressives.
What united them, maybe most of all, was not a positive program but what they stood in opposition to. They shared an aversion to federal courts and to a style of legal reasoning that I’ve already alluded to, often described as legal formalism or classical legal thought. This was the idea that legal actors were autonomous and that the private sphere, including property rights and contractual relations, somehow existed apart from public power. Progressives shared an aversion to that concept, and tended to share a commitment to what they described as the public good, public welfare.
One other thing progressives disagreed about was unions. Most progressives supported government regulation of work hours and labor conditions. They saw that as serving the public good. They were staunch advocates of protective labor legislation. They got it passed, actually, often against union opposition. A lot of unions were worried that protective legislation of that kind would actually undermine union power, that it would make unions less important. AFL president Samuel Gompers said on multiple occasions that the workers he represented should extract concessions through their concerted activity, not through the generosity of the state. The IWW, by the way, also felt that very strongly — as I’ve already suggested, they rejected political reforms of this kind.
But in any case, progressives tended to come together behind this kind of legislation. On the other hand, some of them were not so keen about unionism as a solution. They recognized that workers were suffering, that there were truly abysmal conditions in many working places, that workers lacked meaningful protections, that their wages were not living wages. They recognized all those problems. But for them the reason these were problems was because they tended to create class conflict. And rather than seeing class struggle as positive or inevitable, many progressives saw it as a real issue. And some of them felt that unions were stoking division in a way that would undermine the public good.
On the other hand, some did not. There were some progressives who accepted unions as necessary. Whether or not they saw it as the first best solution, they basically said, Look, we need a counterweight to corporate power. And unions were the way of accomplishing that, of basically countering employers’ greater economic and political power. Some progressives were even more enthusiastic about unions and actually were quite involved in organizing various aspects of the labor movement.
The US entry into World War I really stopped these progressive-era efforts to protect labor rights amid this climate of overwhelming national emergency. In response, some of these progressive social workers involved in labor reform efforts were discussing founding an organization called the American Union Against Militarism, whose Bureau for Conscientious Objectors later became the National Civil Liberties Bureau (NCLB), and, ultimately, the ACLU.
What was the political climate like after the war broke out, and why did it lead to such draconian repression of the labor left? And then why, amid all that, did this more left-wing subset of progressive-era labor reformers found an organization to defend antiwar dissent and conscientious objection to serving in the war?
The degree of repression during World War I is quite staggering, and was actually quite a surprise to the people living through it. There had been initially an active group of people opposed to entry into the war. In fact, there was a lot of opposition to entry into World War I, and, in part because of that, there was a sense that a massive national propaganda campaign was necessary to persuade people that the war was a good idea. This is associated with the Creel Committee. There were people who went throughout the country giving pro-war speeches.
But this kind of propaganda campaign worked too well. Within a few months after US entry into the war you were seeing vigilante violence against opponents of the war, even where they made statements along the lines of religious duty, like Jesus was a pacifist and wouldn’t want war. Opponents would get violently beaten. I think one of the most telling examples was a filmmaker who was sentenced to twenty years in prison under the Espionage Act for producing a film about the Revolutionary War because it cast Britain, a war ally, in a poor light. So we’re talking about serious suppression of dissenting speech.
Now, what’s interesting about this is that there was a fair amount of progressive buy-in to the speech suppressive climate. This was a little bit of a turn for progressives because progressives had long valued free speech. They saw claims that were premised on individual rights as against the public interest as a bad idea, but at the same time they did think free speech was important. And that’s because free speech was how progressive ideas got themselves translated into law. Ideas that had been considered undesirable or taboo a few decades or years earlier made their way into legislation through free and open debate. So the progressives for the most part were — until World War I — quite encouraging of open debate.
This brings us to World War I, when all of a sudden you get this massive suppression. And how do the progressives respond? Most progressives, at least early on, responded by saying, sure, it was important to allow free speech up until the time that war was declared. It was really important to get open public debate as that crucial decision was made. But now the time for free speech has ceased there.
They are like democratic centralists.
Yeah. They make some really remarkable statements, basically saying the moment for open discussion has passed and all citizens need to defer to democratic processes, both in the interest of successfully advancing the war to end all wars — they thought this was a war to save democracy — but also in a show of proper deference to social welfare.
Since you asked about conscientious objectors, that was actually the sort of core constituency of the NCLB, the precursor to the ACLU. Most progressives said, Look, you can’t allow individual conscience to trump democratic will. But the NCLB took the position that many socialists and labor leftists did during this period, which was that World War I was a capitalist war. The American government was sending working people to the front lines in the service of industry and capital. Some on the Left also saw the war as a pretext for crushing the labor movement.
The NCLB wanted to protect people who shared this class view of military service, who said, I’d be willing to serve in a class war. It’s not that I object to the taking of life. It’s that I object to serving in this particular capitalist war.
And actually Congress made some accommodations for members of well-recognized religious sects like the Quakers, or for clergy members. There was even some accommodation for conscientious objectors who were simply morally opposed to war, and the provision for them of alternative service. For that reason the NCLB saw President Woodrow Wilson as one of their own, though that was overly optimistic.
As friendly as some of the NCLB correspondents within the administration were, they simply were not willing to go that far. They wrote the emerging NCLB leadership letters that basically said, What you’re asking for is for any individual to be able to trump political decisions and basically serve as their own check on state policy. And that’s not consistent with progressivism.
It’s the very sort of thing that progressives opposed about the judiciary stepping in and overturning or invalidating decisions made by the democratic state.
Yes, with one caveat, which is that at this point they weren’t asking for the judiciary to invalidate the Selective Service Act — though they did do so by the following fall. But initially progressives were trying to work within government channels, which was the tried and true progressive method for obtaining accommodations. It’s just that they were seeking accommodations for something that looked awfully tied to individual autonomy as opposed to the public welfare.
During this period a new defense of free speech was emerging. And this is where the conventional story of the first modern civil liberties movement typically begins. Increasingly, people like John Dewey and Zechariah Chafee were starting to get nervous about the degree of repression they were seeing, and basically said free speech can be defended as a constitutional right. They were ambivalent about whether this could be a judicially enforceable right, but certainly as a constitutional commitment — not because it’s a liberty of the kind that we associate with property rights, individual liberty, or an autonomy concept of speech, but rather because it serves the public good.
If we’re going to be asking people, they said, to defer to the outcomes of the democratic process, to defer to laws that democratic legislatures passed, to defer to the draft more than anything, then we should protect their right to protest those laws to ensure that they have legitimacy. This was a new progressive concept of free speech. It was not the concept of the small band of NCLB activists who would later go on to found the ACLU.
The NCLB got a ton of pushback on that work throughout the war, and especially when they turned to the courts. The NCLB by this point had broken off from the American Union Against Militarism. What was left was a core of people who were committed to labor rights, many of whom were affiliated with the Socialist Party. And they really felt that the speech prosecutions and the prosecution of conscientious objectors were efforts to shut down radical activity in the United States, and they were willing to use whatever method they thought might work to try to protect those actors and protesters. They weren’t successful in the courts, but they were willing to try.
We have this sense that what distinguished the ACLU from other organizations was that it adhered to principle. It always defended the views of people it didn’t like. It was committed to a sort of abstract ideal. In practice, it was exactly the opposite. It was the NCLB and later the ACLU that basically said, We’re going to throw a whole bunch of things out there and see what sticks. And even if our progressive allies might think turning to the courts is a horrible move, if that’s what works, we’ll do it.
If that’s what works, to secure worker rights, to pave the way to the general strike, to pave the way to revolution, we’re going to be tactically agile and flexible.
That’s exactly right.
The history you tell totally turns on its head our very conventional understanding of the ACLU’s neutral, principled commitment to free speech.
But perhaps the biggest wartime campaign undertaken by the NCLB was its defense of the IWW, which was targeted by massive federal raids in 1917, leading to the prosecution of more than one hundred defendants charged with conspiring to undermine the war effort. Why were the Wobblies targeted for such particularly severe repression? And then what made this trial such a key moment, as you argue, in the development of a modern civil liberties movement that would look to the courts to defend rights, particularly given how miserably the NCLB and the IWW failed in court at the time?
This IWW trial is really fascinating. This is not a case that appears in ordinary histories of the First Amendment because it didn’t involve at least primarily speech claims, but it was absolutely core to the vision that the ACLU eventually adopted when it was founded in 1920, and core to the worldview of the ACLU leadership. So, as you said, over one hundred defendants, actually over 150 defendants, one of whom was “Big Bill” Haywood. This was an effort quite expressly to litigate the IWW out of existence.
Ostensibly what the government said was that the IWW was interfering with the war effort by counseling members not to serve in the military. But really what the government was worried about was that the IWW was organizing strikes in war industries, and this was a big deal. The AFL during this period basically agreed to cease disruptive labor activity in service of the war effort, and there was cooperation with the administration.
The IWW saw this as an opportunity to make gains in places where there had been horrific abuses. And for the first time, there’s a labor shortage. People are going overseas to fight. There’s a crucial need for lumber, for steel. And the IWW wanted to take advantage of that, to make some gains. Simply put, the government was not okay with that. So they prosecute basically the entire IWW leadership and eventually they get convictions.
The arguments that are made are not particularly formative for the future of constitutional law. By the time the Supreme Court looks at this, by the time the Court of Appeals looks at this, basically the arguments had all been hashed out in the more famous cases from this era that produced Supreme Court precedent. But the case is really important because it teaches the NCLB leadership, and particularly Roger Baldwin, the value of a trial for publicity purposes. What the NCLB does during this period is it drums up support for the IWW.
Yeah, they didn’t just defend the IWW in court. They produced and widely distributed a pro-IWW pamphlet — a substantive defense of a very radical, very controversial organization, not just its right to speak.
Absolutely. In fact, this pamphlet they produced, The Truth About the IWW, was expressly designed to document the campaign by war profiteers, they said, to use the war to crush the IWW. It was a straightforward indictment of industrial capitalism.
And what they were defending was the IWW’s right to engage in economic protest activities, not to speak abstractly about their program. This pamphlet barely mentioned free speech at all. In fact, when the NCLB issued it, the government almost immediately moved to suppress it. Postal officials declared it nonmailable. The Department of Justice even told companies not to deliver it. So this was perceived at the time as a quite subversive pamphlet.
Now, this was one aspect of the work that the NCLB was doing on behalf of the IWW, I should say, and this goes back to what we were talking about earlier in terms of the NCLB’s flexibility. It was also trying to do things like fundraise and speak to administrative officials about ending the prosecution. And to that end, it was trying to get respected leaders on board. This was a tactic that the ACLU would use to really good effect throughout the 1920s and 1930s.
The idea here is you get prominent citizens, prominent public leaders, to express concern about the trial. And in doing that, the NCLB started by being pretty antagonistic toward the government in, for example, an advertisement it placed in the New Republic. But the people they wanted to sign on wouldn’t sign on unless it was toned down. So that pamphlet they made about the right to a fair trial, and a lot of their public-facing materials, were talking about procedural fairness rather than their substantive agenda. But it was the substantive agenda that really mattered to them.
After the war came the Bolshevik Revolution, which prompted another wave of reaction in the first Red Scare and the Palmer Raids. The House of Representatives even refused to seat Wisconsin socialist Victor Berger.
At the same time, there was a major upsurge in labor activity, including the Seattle general strike of 1919. But all of that was met — even in the case of moderate AFL unions that had been close to Wilson during the war — with constant anti-labor judicial injunctions and repression. How did the political climate after the war shape the ACLU and the broader labor movement?
I want to emphasize that it was a really gradual shift. First of all, when the ACLU was founded in 1920, it declared itself to be, frankly, a partisan of labor. And it said, our place is in the fight. So what the ACLU was doing in the early period was going out, sending representatives alongside striking workers to picket and to try to get themselves arrested. And this was borrowing directly from the IWW. Roger Baldwin had, in fact, briefly joined the IWW. The founder of the ACLU traveled around the country doing some manual labor, basically to live his commitment to the IWW philosophy before coming back and saying, Oh, actually, maybe my efforts are better spent founding an organization to defend striking workers. But that’s what he does.
And so that’s what the ACLU was initially. It did go to court in that very early period, say 1922 to 1924, but it went to court for the express purpose of losing. And this is something we have to understand. And it’s one of the reasons that it’s easy to think of the ACLU as following a consistent line through this period, because, as it turns out, ACLU lawyers litigated a lot of the most important cases involving the Red Scare, involving convictions under various sedition laws of labor advocates and radicals during this period. But it did it because it thought that doing so would prove how hypocritical the courts were and that that would, in fact, drum up support for court-curbing legislation.
As late as 1924 (and, we’ll see, into the 1930s), the ACLU was calling for a statute eliminating judicial review. It’s hard to imagine this in retrospect, but they were going into court for the purpose of — just like the IWW — airing the grievances of their clients, basically trying to get them a forum for describing what was happening on the ground, but also to show people that the courts were not evenhanded in their application of constitutional rights.
That shifts. So why does it shift? In part because the great coal and steel strikes fail and labor is suppressed, due to some important injunctions issued. When the ACLU reports on civil liberties cases in its annual reports for those first five or six years, virtually every case is a labor case, not a First Amendment case. That’s what they saw as the abuses of civil liberties, because they still understood civil liberties as fundamentally this right of agitation, these labor rights.
Eventually, the leadership comes to the conclusion that imminent change is not happening. The goal of the right of agitation in that initial program was to bring about peaceful economic transformation, but that wasn’t on the immediate horizon. And so they turn to a long-term strategy, basically. They turn from an emphasis on drumming up enough support among workers for immediate mass actions to a long-term campaign of what they call propaganda — of essentially education through various institutions to promote their cause. And that, too, requires protection because that, too, is getting shut down in the courts.
But it also turns out that some of what they’re doing in this period is less threatening, less certain to lead to conviction than some of the earlier cases they were bringing. There’s a total debate within the organization in this period over what it is that the ACLU should be doing. The 1920s was a period of soul searching. When the ACLU was founded, there were only three lawyers on the board. By the end of the decade, there were a ton of lawyers. And the lawyers were saying, increasingly, Look, we bring these cases. It turns out our clients don’t want to go to jail.
For propaganda purposes.
Exactly. Increasingly, they’re saying, What our clients want is to be able to go back home and continue to engage in this work. They do not want to just be the face of a judicial hypocrisy propaganda movement. ACLU leaders get this feedback from people they’re representing. They get it from lawyers they’re working with, some of them quite established, respectable mainstream lawyers like Felix Frankfurter, who say, You’ve got to stop this idea of generating propaganda through defeats in court. It doesn’t get you anywhere.
Even the ACLU lawyers who were initially bringing these cases start to think, This isn’t how we’re going to succeed in the long-term. And so what they do is they tone down their claims.
This huge shift that’s underway for the ACLU is really evident in the famous 1925 Scopes trial, the so-called Scopes Monkey trial, over the constitutionality of a Tennessee law that barred the teaching of evolution in public schools. On one side were the ACLU and radical lawyer Clarence Darrow, who were challenging the law. The latter believed that people were fundamentalists, essentially, because it was “cheaper to pay working men in religious dope.” Defending the law, on the other side, was the legendary populist William Jennings Bryan, whose 1896 Democratic presidential campaign Darrow had enthusiastically supported.
So we see a lot of eminent contradictions coming to the fore in American history. Bryan defended the law on the democratic grounds that it had been duly passed by the legislature, and that elites, through the courts, had no business to strike it down — the sort of position that from a labor angle, the ACLU founders would have not that long before been rather sympathetic to. How did the ACLU find its way into this case, and what did it reveal about their changing approach to free speech and civil liberties?
Yeah, that’s right. This is really a fascinating and eye opening case in a lot of ways, because if there’s any case that is associated with the interwar ACLU, it’s Scopes. But we really have not understood the work that Scopes was doing for the ACLU. It was doing a few things.
First of all, I’ve talked about how the ACLU felt its long-term program at this point had to turn to education. The Rand School of Social Science in New York, which was a socialist school for workers, was closely connected to many within the ACLU. Many of the ACLU board members and leadership taught there. They really wanted to protect it. And New York was trying to shut it down. So there was this real worry that education was a target, not unlike today.
There was a concern that if conservatives saw social change brewing, the way they would go after it was to affect education, to shut down efforts to promote disruptive views in the schools. So that was one thing that was motivating the ACLU to move into this academic freedom work, which is what it saw Scopes as. Secondly, Scopes was a coalition-building exercise. Baldwin actually writes during this period, Oh, this is great. We can do fundraising. People will give to this campaign without worrying about contamination with the defensive reds.
This all seems to point to this constant conundrum for the ACLU: while the Left needs this majoritarian state to protect worker power and build socialism, in actually existing American reality, the Left is often in the minority and persecuted.
It’s not simply a story about the ACLU selling out. I think there was plenty of selling out for sure. But also these very real dilemmas, problems whose solutions required trade-offs that were really hard for them to square.
That’s right. This is an extremely complicated story for everyone involved. And I want to emphasize that the ACLU leadership itself was engaged in constant soul-searching to try to figure out how to reconcile these contradictions that you’re pointing to. Every single one of these episodes caused contentious internal debates and often prompted resignations. These were not decisions that were easy for anyone involved.
Franklin D. Roosevelt’s 1932 election and the beginning of the New Deal marked a major turning point for the ACLU, particularly with regard to state intervention that for the first time aimed to protect rather than repress organized labor. Why, as you argue, did state action to protect labor force to the surface all of these latent contradictions within the ACLU’s civil liberties coalition?
The New Deal poses a fundamental challenge for the ACLU’s traditional understanding. Part of this is the fact that when the members of the civil liberties coalition had no access to the levers of power, there were certain disagreements they could just set aside because the issues were unlikely in some sense to ever present themselves. But part of this is also about the fact that the ACLU had changed through this 1920s process of coalition building that I talked about.
The ACLU had turned to the courts. It had hired more lawyers. It had brought in more donors from a broader range of perspectives and political views. And in the process, it had itself transformed into an organization that was devoted to the defense of free speech, full stop, not to the underlying goals of the labor movement.
There’s a couple other aspects that I should mention. One is that an early entry in New Deal labor legislation had changed the ACLU’s calculus with respect to the courts. I won’t say much about it, but I will just note that the 1932 Norris-LaGuardia Act, which the ACLU had helped to pass and had advocated for very forcefully, had basically taken the federal courts out of the business of issuing labor injunctions. This threat that had always been on the horizon for the ACLU, the threat of the courts intervening in labor disputes to shut them down by issuing labor injunctions, was finally more or less off the table. The Norris-LaGuardia Act changes the landscape on the ground. It stripped jurisdiction in the context for courts to enjoin most labor disputes. It also made yellow dog contracts unenforceable.
The ACLU at this point feels like courts are a friendlier forum now for making some of their claims, for trying to get picketing and boycotts along with all these other individual rights protected. They’re still pretty wary about allowing the state to come into the sphere of labor relations. And that’s because Baldwin believes that the state will always inevitably serve the interests of capital, and that if you let the state in — even if there are guarantees now for the right to strike, for the right of agitation through the process of bureaucratic accretion — eventually those rights will be curtailed.
Even as the ACLU in so many ways laid the groundwork for this huge advance in labor rights, you write, it also “ironically helped preserve liberal legalism at the very time it proved most vulnerable.”
What was this crisis that erupted in 1936 and 1937 between FDR and the Supreme Court? How did FDR’s enemies on the business and legal right appropriate the ACLU track record? And why did the ACLU end up not taking any position at all, for an organization that in its early years was extraordinarily hostile to judicial power?
The ACLU was increasingly investing in constitutional litigation during this period, and it had begun to eke out some incremental victories with respect to the First Amendment and to some extent on issues of criminal procedure.
On the whole, however, the Supreme Court continued to stand in the way of progressive legislation. This was nowhere more evident than in its decisions, one after the other, striking down signature New Deal legislation. By the mid-1930s, at least by 1936, the ACLU feels like the National Labor Relations Act (or NLRA, guaranteeing private-sector employees the right to organize unions, among other things) is a really big deal and it has to be saved. On the other hand, it’s starting to see some limited victories on First Amendment issues, but nothing monumental on that front.
So when Roosevelt introduces the court packing plan, there’s a lot of hand-wringing. The court packing plan wasn’t particularly popular, in part because it was perceived as disingenuous. It got people a little nervous. Even some within the ACLU were worried that it smacked of sort of fascist tendencies, that it was going to give too much power to Roosevelt. And they really wanted what they saw as more democratically rooted solutions instead. There were still a bunch of staunch New Dealers within the ACLU who were enthusiastic boosters of the court packing plan, but others who were more reluctant.
Court packing was about personnel change, a court expansion, not about eliminating judicial review. On that, too, there was real ambivalence from the ACLU. So the ACLU polled all of its members and a lot of its prominent lawyers about what they thought about court-curbing legislation. It commissioned a study of whether the Supreme Court had been a defender of civil liberties sufficiently enough to justify maintaining judicial review. And the answer was basically no, the Supreme Court had done more harm than good.
And so the ACLU decided to stay out of this issue. This is the most important moment with respect to judicial review in history until maybe today, and the ACLU took no position because it couldn’t decide whether it was worth giving up aggressive enforcement of the First Amendment.
The apotheosis of the ACLU’s transformation from this radical labor organization to a liberal one really comes when they make the decision to actually back business anti-union speech against the United Auto Workers (UAW) and the National Labor Relations Board. The case revolved around one of the most famous events in US labor history, the 1937 Battle of the Overpass, when Walter Reuther and other UAW leaders were beaten by Ford Motor Company goons while attempting to hand out leaflets.
How was it that the ACLU, an organization founded to support worker revolution, ended up siding with the boss? What made the ACLU adopt this sort of liberal-pluralist perspective that labor was yet another major force in society whose power had to be checked and balanced just like any other, a force just as capable of unlawful coercion as a corporation? Labor radicals would have argued that that speech was necessarily embedded within power dynamics, and so that a statement from a boss to a worker like the statements that Ford was making to Ford workers were inherently coercive.
So I need to say one thing, too, to explain how the ACLU got there: I’ve just said the ACLU was ambivalent about court curbing, but other groups were not ambivalent. And those groups included the American Bar Association (ABA), which at that time was quite conservative and increasingly for employers and corporate lobbyists.
So there’s this fascinating moment where the ABA opposes the court packing plan and court-curbing legislation. It’s trying to figure out how it’s going to do it. And it does it by putting out pamphlets, celebrating the very civil liberties cases that they had opposed when litigated by the ACLU as crucial evidence that judicial review was necessary. They hope in so doing to preserve judicial review.
In the spring of 1937, conservatives see that the court is no longer going to be their defender on the basis of property rights or the commerce clause, which were the traditional constitutional provisions they relied on. But by this point, they had actually sort of invested in this narrative about free speech being good for business, free speech being good for conservatives. And in part, that’s because the New Deal administration was starting to target conservatives in a way. That’s why an ABA Civil Liberties Committee was necessary, a committee on the Bill of Rights. Needless to say, that generated a bit of skepticism about whether business groups said the ABA was in this for principle or to save their skins.
This is the flip side of the story of the ACLU internalizing its commitment to free speech to some extent. Business groups did that, too. And that’s especially after the spring of 1937, because they couldn’t rely on property rights anymore to get laws targeting them struck down. So what do they do? They turn to the First Amendment. They realized almost immediately after the spring of 1937 that the First Amendment can do a lot of the work that previously had been done by substantive due process, by property rights, by liberty of contract. And this took a lot of forms. It was about commercial advertising. It was about protecting lobbying. It was about opposing media consolidation.
And, it was about anti-union advocacy. So what conservative groups saw clearly pretty early on was that the First Amendment could be used as a basis for invalidating or at least constraining the provisions of the NLRA that prevented employers from engaging in anti-union propaganda. That’s the turn of events that tees up the Ford Motor Co. v. NLRB case. That case was about whether this new claim on the part of employers to be defending the First Amendment should be recognized.
Many within the leadership of the ACLU were still, above all, committed to an idea of civil liberties as labor power, as the right to organize, picket, and strike. And that was a right that the court had actually briefly recognized. For the labor leftists within the ACLU, the idea that you would now undermine that right to organize by relying on the First Amendment right of employers to issue anti-union pamphlets was a total betrayal of their goals. This is really complicated, though. It’s not just a matter, as you said earlier, of selling out. Because for some within the ACLU, there was a real concern that siding with the NLRB on this would come back to bite labor.
There’s another segment of the ACLU that simply had, by this point, forgotten or erased the earlier history, where the right of agitation was the core commitment. This group had come on board because of cases like Scopes instead, and for them this was all a distraction from the true issue at stake, which was the unfettered right to express ideas. That’s what free speech was — just this sort of right for everybody to say what they want, untethered from labor.
In 1940 the ACLU expels its only openly communist board member, Elizabeth Gurley Flynn, who was a founding member of the organization. The episode is really the coda to this move we were just discussing, this move from the labor left to liberalism — even though it’s often presented in this more decontextualized form as a moment where the ACLU lacked principle, a moment of cowardice in the face of anti-communist hysteria.
That’s right. So this moment, as you just said, is conventionally understood as a moment when the ACLU capitulated to anti-communism and basically no longer was committed to the defense of speech for all. And the irony is that that’s actually, in some sense, exactly backwards. The ACLU had passed the resolution excluding communist members, and Harry Ward, longtime chair of the organization, resigned. A lot of the fellow travelers within the organization, both at the national level and among the affiliates, resigned.
Those who were left, the idea goes, were persecuting people for their political views. In fact, they were the ones who were adopting this modern notion of what it means to be neutral. They were the ones who were saying everybody should be able to say what they want to. As you know, there are some within the organization who are increasingly saying, Look, if we’re against coercion, that means you can’t enforce union discipline. Here what they were really saying was that communist members of the organization are not committed to the defense of all speech. What’s left of the board is saying, If we want to be committed to unfettered freedom for all, for the freedom to say whatever one wants, we have to exclude the communists. And that’s what leads to the expulsion of Flynn.
Flynn had been a founder of the ACLU. You know, she had been in the free speech fights with the IWW decades earlier; she had been with the organization all along. Everyone within the organization kept emphasizing that this wasn’t personal, but it really was at a fundamental level. As Flynn put it, the ACLU at this point had completely given up on its roots and no longer was acknowledging that its commitment was to labor’s right to organize.
It’s hard to say exactly what the core leadership’s commitment was at this point. Roger Baldwin writes in a letter in this period, “We have no -ism to defend.” This is now an organization committed purely to the preservation of the Bill of Rights. In 1925 Baldwin says political liberalism is dead; the only struggle that matters is the class struggle. Thirty years later, he’s saying political liberalism is stronger than ever and he’s celebrating that. It was an incredible about-face. But they continued in this period to say that nothing had changed.
The new civil liberties consensus won by the ACLU really often held the line during World War II, at least compared to World War I. Obviously, the Supreme Court’s upholding of Japanese internment was a glaring exception among many. But during the Warren Court era that followed, that consensus helped advance the civil rights movement, and protected the antiwar movement, the counterculture, and also the rights of criminal defendants.
And ultimately, the Supreme Court upheld rights to contraception, abortion, and more recently, gay marriage. Today, before reading your book, I often thought of this liberal sanctification of the Supreme Court and judiciary that really was exemplified by the veneration of Ruth Bader Ginsburg a few years ago. I always thought of that as being the product of the Warren Court era. How do you relate the history you tell to that period that followed a couple of decades later in terms of fostering this (until recently) really sacrosanct regard for the court?
In a way, this boils down to: Did these interwar civil liberties advocates really produce modern constitutional liberalism? I think the answer to a large extent is yes. I think it’s really important to say so.
You know, I’ve described the emergence of the modern understanding of the First Amendment and the Bill of Rights more broadly as this coalition between, on the one hand, these state-skeptical labor radicals within the ACLU and, on the other, these conservative lawyers and business lobbyists who increasingly came in. Who was left out? The New Dealers, who were worried that judicial enforcement of individual rights would inevitably be used to undermine worker power and who wanted to get rid of judicial review for that reason, or at least who wanted to moderate it in some way.
At some level, it’s about modern liberalism itself. During this period the ACLU worked hard to take these tactics that were rooted in economic pressure and recast them in terms that were acceptable to liberalism — as expressions of ideas, as persuasion, as associational freedoms. And at the same time, the state comes in in the form of the NLRA. And so with the state in the background, it became virtually impossible that the court was going to continue to protect those forms of economic activity. We have today strong protections for lots of other forms of speech, but not for the very tactics the ACLU was trying to protect.
I really want to emphasize that it’s not just the courts. It’s also Congress. Congress passed the Taft-Hartley Act in 1947, stripping labor of its most powerful weapon. It abolished the closed shop, prohibited secondary boycotts, and authorized state right to work laws. Courts eventually upheld all of those limitations. It’s also the administrative state, the NLRB itself. Very quickly, FDR appointed more conservative members to the board. They started constraining labor rights. That led some radical labor theorists in the middle of the twentieth century to say that the ACLU had been right about the inevitable effects of inviting state power in this domain.
But the crucial point is that the ACLU tried to make all of these rights into expressive or associational rights, when at bottom they were more than that. When push comes to shove, the labor movement today is in exactly the same position that the ACLU was in in the 1920s and 1930s, in that it’s got this set of precedents that has been used to undermine its power, and it’s at a crossroads. It can take those cases and try to flip them on their head and use them to sort of eke out what’s left of labor rights. Or it can jettison them altogether and basically push for whether it’s curtailing judicial review or some sort of constitutional amendment or some other mechanism outside.
I think that the worries about legitimation matter. The experience of unions that are exposed to huge liability for engaging in secondary strikes also matter. So this isn’t at some level an easy decision to make to forego a set of constitutional arguments that’s available on the basis of principle. But the point I want to make is a deeper one, which is that to the extent those arguments are available at all, it’s only because unions have lost their power to coerce already. Even if secondary strikes are permitted, unions are no longer in a position to produce the kinds of extremely disruptive and effective strikes that we associate with the period immediately after World War II and that prompted the Taft-Hartley Act. And that’s because of this systematic effort across all institutions of government to empty unions of the power that made that kind of activity effective in the first place.