A Progressive Labor Vision of the First Amendment: Past as Prologue
31 Pages Posted: 19 Mar 2018
Date Written: March 14, 2018
This essay proposes a way to expand First Amendment protection for labor protest, and to invalidate restrictions on secondary boycotts and picketing seeking to organize a union, without further jeopardizing the shaky detente in free speech battles between those who believe in heightened scrutiny only of laws restricting political speech and those who advocate heightened scrutiny of all laws, including economic regulations, that restrict speech. A principled line, supported by venerable precedent, exists between laws restricting picketing and speech on matters of public concern in traditional public forums and laws regulating coercive, harassing, or threatening speech inside the workplace. The contours of such a First Amendment theory can be found in the past. When the Court abandoned its deferential reasonableness rule that allowed government to prohibit speech that had a tendency to produce bad consequences in favor of the Brandenburg rule requiring government to make a powerful showing that controversial speech is almost certainly going to incite “imminent lawless action,” it undermined the basis for its labor protest cases of the 1940s and 1950s. In its cases in the early 1980s rejecting First Amendment challenges to labor boycotts, it elided the significance of the shift in First Amendment jurisprudence by saying that labor protest was coercive, unlike the anti-war or civil rights advocacy it held constitutionally protected in the 1960s, 1970s, and 1980s or the anti-abortion and homophobic picketing it has held constitutionally protected in the 2010s. But it is no longer plausible to say that labor picketing or calls for secondary boycotts are coercive. To restore intellectual credibility to free speech law, the Court should return to the First Amendment of labor protest of the early 1940s before it began to find labor speech to be coercion. Restoring the term “coercion” in section 8(b)(4) (which prohibits secondary boycotts) to its plain meaning has the great benefit of being the meaning that Congress intended. In short, the Court should expand to all workers the robust First Amendment protection for picketing and boycotts that it pivoted toward in 1963, when it abandoned its earlier view that laws or judicial decrees banning civil rights activism were permissible.
Keywords: labor, free speech
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