Exclusion is Forever: How Keeping Rights to Strike, Picket, and Other Labour Speech, Separate from Constitutional Rights, has Proven a Bad Deal for American Labour Unions and Constitutional Law
Canadian Labour and Employment Law Journal, Forthcoming
14 Pages Posted: 4 Dec 2009
Date Written: December 3, 2009
For everyone but labor unions, constitutional protection of symbolic speech, speech accompanied by mass physical action like picketing, boycotts, and even potentially threatening speech, has expanded significantly in recent decades. The First Amendment protects flag burning, cross burning, picket lines that block abortion clinics, St. Patrick’s Day parades, and nude dancing. The anomalous treatment of the identical conduct by labor unions (apart from the nude dancing) is increasingly difficult to explain. With hindsight, the American exclusion of labor speech and action from the basic constitutional framework, on the supposed grounds that it is and must be regulated through a comprehensive administrative scheme, has been bad for labor, bad for labor speech, and bad for the Constitution (for these unexplained disparate outcomes are used to delegitimize constitutional law).
Keywords: labor, labor law, consitution, constitutional law
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