Is it Time for a New Free Speech Fight? Thoughts on Whether the First Amendment is a Friend or Foe of Labor

21 Pages Posted: 1 Jun 2017  

Catherine Fisk

University of California, Berkeley - School of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: May 30, 2017

Abstract

The First Amendment, at least in the Supreme Court, hasn’t been much of a friend to labor unions. Among the few First Amendment rights that the Supreme Court has expanded in the labor union context recently is the right of union represented employee to refuse to pay fees to the union that represents them. Notwithstanding reasons to believe the contemporary First Amendment is more likely to be foe than friend of labor, history suggests the contrary. This essay explains why, making three arguments. First, social movements exist only where and when there is a robust commitment to free speech, and workers have real power only when labor has the capacity to be a social movement. Second, labor gained power as a social movement by engaging in protest and it started down the path to losing power when, in a series of cases decided between 1941 and 1960, the Supreme Court largely eliminated constitutional rights to picket and boycott. In the early 1960s, just when the Court finished creating the labor protest exception to the free speech clause, it extended First Amendment protection to civil rights and antiwar protest. Just as civil rights protesters drew on the sit down strike pioneered by labor in the 1930s, the Supreme Court found a First Amendment right to engage in civil rights protest by drawing on the cases that labor unions had won in 1939 and 1940. Third, the literature on the role of lawyers for social movements between the 1930s and now suggests the importance of law to how lawyers advise their clients. The only hope for the future of the labor movement is in cultivating a spirit of protest. Without the right to engage in robust protest, labor lawyers are in a difficult place when they advise their clients, and can do little to create the legal space to enable workers and social justice activists to launch a new round of free speech fights of the sort that brought the labor movement into power in the 1930s.

Suggested Citation

Fisk, Catherine, Is it Time for a New Free Speech Fight? Thoughts on Whether the First Amendment is a Friend or Foe of Labor (May 30, 2017). Berkeley Journal of Employment and Labor Law, 2018, Forthcoming; UC Irvine School of Law Research Paper No. 2017-27. Available at SSRN: https://ssrn.com/abstract=2977470

Catherine L. Fisk (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
(510) 642-2098 (Phone)

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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