The Taming of Free Speech: America’s Civil Liberties Compromise

foreign good afternoon my name is Tom nastick I'm a public program producer here at the national archives in Washington DC it's my pleasure to welcome you all here today to the William G McGowan theater and to also welcome those watching us on the National Archives YouTube channel today our series of new Time author lecture and book signings continues with The Taming of free speech America's civil liberties compromise with our guest Laura weinrib this program is presented in conjunction with the exhibit amending America now on display through September 4th 2017. two floors up in our Lawrence F O'Brien gallery only 27 times out of more than 11 000 proposals have Americans reach consensus to amend the Constitution amending America reveals the stories behind behind why some proposed amendments successfully became part of the Constitution While others failed to gain enough support before we get to today's program I'd like to tell you about two upcoming programs that will take place in this theater on Thursday September 29th at 7 P 7 30 P.M the National Archives joins with the Constitutional accountability Center and the National Park Service to prevent present a panel discussion the 14th Amendment the National Park Service and America's second founding to celebrate the 150th anniversary of the passage of the 14th Amendment we look at how the amendment defines U.S citizenship its connection to America's second founding the passage of the Reconstruction amendments and the interpretation of these topics at National Park Service sites and then on Thursday October 4th at 7 pm we will present a screening and discussion of a new documentary film equal means equal through real life stories and precedents setting legal cases the film looks at how women are treated in the United States today and presents a compelling and persuasive argument for the urgency of ratifying the Equal Rights Amendment following the film screening will be a discussion with Kamala Lopez director of equal means equal to find out more about these and other programs exhibits and events at the national archives please consult our monthly calendar of events there are copies outside the theater and it's also available online at our website www.archives.gov Laura weinrib is a 2003 graduate of Harvard Law School she completed a PhD in history at Princeton University in 2011 in 2000 she received an ABN literature and an am in comparative literature from Harvard University after law school she clerked for Judge Thomas L ambro of the United States court of appeals for the third circuit from 2009 to 2010 she was a Samuel I go Lieb fellow at legal history at the New York University School of Law her teaching and research interests include American legal history civil liberties constitutional law labor law and family law after her talk and Q a Dr weinrude will be signing copies of her book one level up outside the archives store please welcome Laura Weinberg to the National Archives thank you thanks very much I'm really delighted to be here today and I very much appreciate the opportunity to talk to you about my book it's especially a pleasure to talk about this in conjunction with the exhibit on amending America because uh I hope that what I talk about today will help us to rethink what it means to amend the Constitution and how and when that might occur I want to start us off today by reflecting on a claim that we've heard often in the last few years from both Scholars and politicians which typically takes something like the following form so as you can see it starts with citizens united which is being used as shorthand today for the idea that corporations have First Amendment rights and it's not just about campaign Finance regulation which is what the case actually involved rather citizens united has come to stand for the idea that the first amendment protects businesses in a wide variety of contexts so here's uh the second part of the claim uh namely the idea that that the first amendment protects businesses uh as much as it does you and me uh is a new one and what's more it's a perversion of our constitutional values uh whatever the first amendment was meant to do the argument goes uh it wasn't this that brings us to the last part the court used to be a champion of the little guy now it's gone off the rails and started protecting the rich and Powerful instead now needless to say this is not a marginal view um as you can see this version was articulated in a recent campaign speech by Hillary Clinton and Clinton is part of a much bigger chorus documents and uh Records I discovered in researching my book make it clear that claims of this nature have the history wrong uh but before I tell you why I want to say a word about where they come from uh and what they're meant to capture so these claims are rooted uh in what we might call the Golden Age of the First Amendment the years uh from the second world war until the rehnquist court when the Warren Court celebrated unfettered expression and steadily expanded the first amendment's reach and in an era when other state and federal actors regularly targeted agitators the Judiciary was comparatively friendly to the rights of dissenters the celebrated cases of this period gave us the iconic First Amendment protagonists of the 20th century uh socialist soapbox orators civil rights Marchers and anti-war protesters then sometime in the 1980s or 1990s those first amendment Pioneers began to fade from View and a new generation took their place so instead of uh say the NAACP uh the First Amendment claimant started to go by names like Central Hudson Gas and Electric Corporation or First National Bank of Boston and in the past few years researchers have documented and analyzed this transition and the empirical evidence suggests that half of First Amendment victories now go to business corporations and trade groups challenging regulatory interventions Scholars have dubbed this transformation the lochnerization of the First Amendment on the theory that businesses are using the First Amendment to do the work that Liberty of contract did in cases like lochner V New York the notorious 1905 decision invalidating a New York maximum hour law for Bakers during the early 20th century the United States Supreme Court and its state counterparts used the principle of Liberty of contract which purportedly was contained within the due process clause of the 14th Amendment to strike down a lot of progressive legislation including minimum wage laws maximum hours law workers compensation and the idea behind the law canarization of the first amendment is that the First Amendment today like Liberty of contract during the so-called lochner era is being used to dismantle burdensome regulatory regimes now many academics and cultural commentators have criticized the Court's use of the First Amendment to invalidate legislative and administrative efforts to temper what they see as corporate dominance others have celebrated the same Trend uh as a desirable corrective to the earlier decisions or at least a natural extension of their reasoning but virtually all of them agree that the Court's direction is new what I want to do today is to challenge that assumption and I'm going to do that by moving us back a bit further in time from the Warren Court from that golden age of the First Amendment to the early 20th century and I'm going to suggest that the lockerization of the First Amendment began a very long time ago in fact it began almost the instant that lochner itself was put to rest it was embedded in the First Amendment at the moment that the so-called new deal settlement was struck and that I think has some real implications as we debate the future of the First Amendment as well so my lecture today is going to proceed in three parts first I want to present you with a puzzle about the relationship between the courts and the First Amendment which has everything to do with the legacy of lochner V New York I'm going to give you the standard account of how the modern First Amendment emerged and explain why that standard account is inadequate then to better answer our puzzle I will argue in turn that the roots of the modern First Amendment are both more radical and more conservative than historians have previously understood so with that the standard account I should start by saying what I mean by the modern First Amendment namely the principle that the Constitution prohibits government officials from punishing individuals for the vast majority of their speech and that the Judiciary the courts are charged with enforcing that right and with ensuring that the political branches do not overstep their Authority so why the emphasis on Modern um the words on the screen obviously are hardly new by American Standards what we now call the first amendment was ratified 225 years ago in December 1791. but as many of you will know there was no real constitutional commitment to expressive Freedom uh before the first World War now as you can see the amendment begins with the words Congress shall make no law uh until the 1920s it was not considered binding on the states and even with respect to federal laws courts never really intervened with official suppression it's not the case though that everyone thought censorship and suppression was a terrific idea debates over free expression flared up periodically in the 19th and early 20th centuries albeit often in forms that are unfamiliar uh today I want to draw your attention to one such debate in the early 1910s at the height of what's typically called the Progressive Era the progressive era was a time of Rapid social and intellectual transformation and a lot of ideas that had seemed implausible or heretical at the end of the 19th century seemed mainstream by the beginning of the first world war progressives understood that social and scientific progress required open discussion of ideas and yet most of them did not think that constitutionalism was the way to achieve that openness instead they urged legislators and executive actors to refrain from criminalizing dissent uh or from prosecuting dissenters that is they trusted in a strong state and they sought Solutions in the political branches not in the courts in fact the Judiciary was the last institution they would have trusted to protect free speech most progressives shared a deep distrust of the federal Judiciary and a deep aversion to constitutional rights-based claims and the reason for that distrust is the lochner style reasoning I described earlier with its valorization of property rights and Liberty of contract the court exercised what we now refer to as judicial review what was then uh called the power to enforce constitutional limitations to strike down many of the most celebrated Progressive reform initiatives of the Progressive Era including minimum wage laws workplace safety laws and workers compensation and progressives saw all this as a big problem for social welfare uh they were so opposed to judicial review of legislation that in fact they tried to abolish it altogether during the 1910s progressives proposed and in some cases uh passed a wide range of measures limiting the power of the courts to strike down statutes and just to give you a sense of how mainstream this was even Teddy Roosevelt supported what he referred to as the recall of judicial decisions and he considered it and I'm quoting here absolutely necessary for the people themselves to take control of the interpretation of the Constitution all of this came to a head during World War One When government actors and Vigilantes worked together to enforce patriotism and Conformity and to quash dissent in what would become a foundational text for the modern First Amendment freedom of speech in Wartime a law professor named Zechariah chafee Jr described an quote an unprecedented extension of the business of War over the whole nation public officials and ordinary Americans denounced all criticism of the war as a threat to Public Safety and there were thousands of prosecutions which continued even after the war ended many public figures including the Socialist presidential candidate Eugene V Debs ended up in prison for opposing conscription or for opposing American intervention in the war and neither courts nor government officials stood in the way I've told you that until World War One the First Amendment as we know it that is as a judicially enforceable check on State uh suppression of speech simply did not exist during the war almost no one thought that the first amendment was an obstacle to the prosecution of anti-war dissenters in fact even the scholars and judges who were most anxious about the repression were really hesitant to solve the problem through judicial enforcement of the First Amendment because they were so deeply suspicious of judicial review and you may be familiar with the traditional story of how that changed which goes something like this the wartime repression was so bad that a few pioneering progressives Saw the Light so Zechariah chafee squared the First Amendment with the progressive aversion to individual rights by identifying what he called a social interest in the attainment of Truth uh that would guide public policy and two celebrated Supreme Court Justices uh justices uh author Wendell Holmes Jr and Justice Louis Brandeis began to write stirring descents in decisions upholding the convictions of anti-war speakers Justice Holmes emphasized the need for what he called a free trade in ideas that is a Marketplace of ideas in which the best ideas would inevitably Prevail and Justice Brandeis emphasized the Democratic value of free expression its connection to the deliberative process their reasoning uh this story goes was so persuasive so obviously right that they eventually persuaded their fellow justices but there are a couple of problems with this neat little story that historians and constitutional law Scholars have been unable to resolve so the first is about timing for more than a decade these Progressive theorists and academics were in a tiny minority if Holmes and Brandeis were so persuasive why did it take such a long time for the Supreme Court to start actually striking down laws as incursions on the First Amendment and why did the Wayward justices finally come on board second and relatedly how did the progressives come to trust in the courts as the appropriate institution to enforce free speech throughout the 1920s esteemed Progressive Outlets like the new Republic declared that the legislatures not the courts were properly tasked with policing the First Amendment and that civil liberties group should be seeking the repeal of unjust laws not their invalidation in the courts whether and how progressives eventually embrace the Warren Court version of the first amendment is the puzzle that I'm going to turn to now so we've arrived in part two the radical roots of the First Amendment and the protagonists of this act are not the progressive theorists and judges we ordinarily associate with the first amendment in the interwar period but rather a group of lawyers and activists in particular I'm going to be focusing on the early leadership of the American civil liberties Union it was the aclu's organizational precursor that unsuccessfully litigated many of the best known First Amendment cases of the first world war but what's most important about the aclus for ACLU for today's purposes is not its wartime activities on behalf of dissenters but rather its staunch commitment to a radical wing of the of the American labor movement and as the aclu's founding documents forthrightly explained the very purpose of the ACLU was to serve as what they called a Frank partisan of Labor now let me start by clarifying that organized labor disliked the courts just as much as progressives did uh during the late 19th and early 20th centuries the courts relied on the same principles at stake in lochner-style cases to issue injunctions against strike activity the so-called labor injunction uh these cases emphasize the property rights of employers as well as the individual autonomy of workers who did not want to be a part of unions courts routinely issued injunctions based on nothing more than a claim from an employer that a strike was interfering with its right to maintain production and that it would damage the employer's business without hearing testimony the court would enjoin any further picketing and anyone who disregarded the injunction faced huge fines as well as prison terms as you might imagine this had a profoundly detrimental effect on labor organizing so like their Progressive allies labor leaders hated the courts what differentiated the two camps was that many labor leaders hated the state too um police officers and state and National troops typically intervened on behalf of employers uh in labor disputes often arresting or even killing striking workers and for the most part organized labor regarded state and federal officials as tools of Industry okay so to oversimplify the defining feature of the ACLU is compared with Progressive Advocates of free speech like Zechariah chafee and justices Brandeis and Holmes is that the organization's early leaders disliked the state even more than they disliked the courts and they were willing to use the courts to check state power the the founders would have preferred to rely on Grassroots agitation and direct action but they eventually resign themselves and I'm quoting here to the fact that the middle class mind works legalistically and that whenever rights are violated the first thing they want to do is get a lawyer and go to court so if if restraining uh state power meant invoking judicial process the ACLU was willing to make that bargain now I should pause here to say that the aclu's distaste for the state does warrant uh some explaining oh well as well uh the American Union against militarism from which the ACLU splintered was founded by some of the best known progressive reformers people like Crystal Eastman Jane Adams Florence Kelly Paul Kellogg these are the people who drafted and helped to pass some of the classic Progressive reforms from workers compensation to minimum wage but by the time the ACLU was reorganized under its modern title in 1920 these progressives had either modified their confidence in the state or in many cases had parted ways with the organization I can't give you uh the full account of the aclu's early Origins today but I will say that a key player in the organization's development was one of its co-founders a man named Roger Baldwin and like other social workers and reformers within the auam uh Baldwin began his career as a progressive reformer but by the end of world war one he was a member of a deeply anti-statist labor organization the industrial workers of the world and he had entangled his organization in defending the iww against prosecution he also took his commitment to uh opposition to the state very seriously across a wide variety of domains in fact he went to jail as a conscientious objector to the draft and when he came out he told reporters that he would never vote again or serve on a jury because the state inevitably served the interests of capital now as jarring as this sounds from today's perspective Baldwin was not alone there were a number of people within the early ACLU who more or less shared his views okay so how did the radical labor aspirations of uh the aclu's founders work their way into the organization's agenda this is where things get really interesting uh I want to emphasize that the vision of free speech espoused by the early ACLU is not the one that we hear about when we speak today about civil liberties in the inter-war period now to be sure the early ACLU invoked and even pioneered the now standard defenses of free speech that open debate advances Democratic legitimacy encourages political participation produces better policies and serves to channel dissent into peaceful rather than violent Outlets they said all of those things but what the ACLU was after was not primarily the model of uh free speech that's familiar today the freedom of leaf litters and soapbox speakers to propagate unpopular ideas the ACLU had in mind something much more dramatic which is now almost entirely outside the domain of the First Amendment what they wanted to protect was something they called the right of agitation a right to secure fundamental social and economic change through economic weapons without State interference and what they described as falling within this Rite of agitation was an absolute right to pick it boycott and strike now for those of you who are Rusty on your early labor movement tactics let me just give you a sense of what first amendment protection for this kind of activity would have meant let's say you have a small local manufacturer in Kentucky that's managing to undersell unionized competitors by paying less than union pay scale maybe the employees are satisfied with the situation because the local cost of living is low and everyone knows that lower wages are the only way the local business can stay afloat so the union approaches the employees it tries to organize them but they say no we're not interested today that's the end of the matter workplace democracy has come to mean that local employees get to decide but the tools of secondary activity which are unlawful now just as they were during this period would give the union another option if Union density is strong and there's coordination between unions in different areas and different Industries the union can go to that Kentucky manufacturer's suppliers and Distributors let's say they're unionized businesses in Michigan and call those businesses employees out on strike so that the suppliers and Distributors have no choice except to sever ties with the manufacturer that's the secondary strike okay it can also forbid union members from purchasing the products of any business that continues its relationship with the manufacturer that's the secondary boycott and the union can enforce those policies by threatening to expel from the union anyone who fails to comply anyone who buys the product or crosses a picket line now let's say that the Union at one of those suppliers has a closed shop agreement with the employer meaning that the supplier has agreed to employ only members of the Union in good standing now that's illegal today but it wasn't uncommon in the early uh 20th century so now you're in a situation where you've called a secondary strike in Michigan over a labor dispute with a non-union company in Kentucky and those Michigan workers whose employer has some sort of relationship with the Kentucky manufacturer has no choice except to go out on strike or risk losing their jobs now needless to say this was powerful stuff courts almost uniformly enjoined it they understood how powerful it was and we have to understand that this not socialist leaflets is what the ACLU wanted the First Amendment to protect this was about keeping police officers from breaking up picket lines and from arresting Union officials all right I can't really do justice today to the story of civil liberties during the 1920s but suffice it to say that the right of agitation was not the kind of program that was likely to get much buy-in from mainstream progressives let alone from conservatives so over time the ACLU Hit Upon some more subtle long-term strategies it expanded its operations into areas like academic freedom artistic expression sex education areas where it could get broad-based consensus and by challenging procedural irregularities and factual determinations rather than pushing aggressive First Amendment claims it began to achieve some small victories in the court all the while saying in its private correspondence and memoranda that what it was really after was this more radical stuff um I think this approach is best captured by a memorandum about the so-called Scopes Monkey Trial probably the aclu's best known case of the 1920 when the ACLU launched the case Roger Baldwin told the organization that it was a chance to get liberals and progressives involved in civil liberties without as he put it fearing contamination with the defense of Reds okay so we're going to fast forward now to the 1930s and the election of President Franklin D Roosevelt which presented a fundamental challenge for the aclu's vision of civil liberties New Deal efforts to regulate Labor Relations introduced a strong role for the state in brokering disputes between workers and their employers and this was a substantial departure from Labor's long-standing skepticism towards State involvement which I've already explained and the core ACLU leadership didn't like it Roger Baldwin said over and over again that administrative intervention would undermine Labor's cause and he wrote to Senator Robert Wagner in opposition to the National Labor Relations actor or Wagner Act at the beginning of the decade the the ACLU had actually helped to draft and pass the Norris LaGuardia act that was a statute that prohibited federal courts from enjoining Strike activity and Baldwin was worried that government involvement that bringing a government agency in in the form of the Wagner Act would inevitably lead to backtracking from that position of keeping the state out of strikes and the debate within the ACLU over New Deal labor law is really fascinating because it reveals the extent to which the old commitment to the right of agitation to this revolutionary right to restructure the economy through Collective power was transforming many of the organization's new members and allies those people that the ACLU had brought in over the course of the 1920s defended the rights to Pickett and boycott only insofar as they communicated workers views like any other political activity and on this new understanding State intervention in economic and Labor Relations was fine as long as it didn't impede the expression of ideas but even more than this disagreement about state power what I want to do today is draw your attention to a related debate within the civil liberties movement about the role of the Courts because as it happened the New Deal presented an opportunity on that front as well during the early 1930s as Congress began to experiment with bold new projects to mitigate the effects of the Great Depression the Supreme Court continued its practice of striking down social and economic legislation in fact it struck down some of the new deals most important programs uh and by all accounts the Wagner Act uh was on The Chopping Block by early 1937 liberals were infuriated and as in the early 1910s there was substantial public will for court curbing legislation eliminating the power of judicial review would mean that Congress could pass say minimum wage legislation without worrying that the court would strike it down as unconstitutional but most contemporaries assumed it would mean something else too it would remove the court from the business of enforcing the First Amendment an issue that the ACLU had been pushing of course since the mid-1920s and by the same token preserving a role for the court in enforcing civil liberties would necessarily legitimate the Court's property rights decisions this sentiment was expressed in a pamphlet circulated by the fledgling National lawyers Guild I'm quoting here judicial protection for civil liberties by means of the power to invalidate laws cannot be separated from judicial protection for the selfish interests of large property Now by this time the ACLU had become an established and important liberal group and it could not avoid weighing in so it pulled a number of lawyers and public figures and issued a report on uh how far the court has been a defender of civil liberties and the report evaluated the Court's record in civil liberty cases civil liberties cases since the 19th century what it concluded was that the court had quote more often failed to protect the Bill of Rights than preserve it it concluded that the court was much more likely to uphold property rights than personal rights like civil liberties but at the same time the report acknowledged that the court was gradually expanding the scope of the First Amendment and it suggested that the power of judicial reviews might be used effectively to safeguard the rights of political and racial minorities now believe it or not this is about as enthusiastic as any liberal group got in the 1930s when it came to judicial review to judicial enforcement of the First Amendment for the most part the aclu's New Deal allies were happy to limit the power of the courts whatever that might have meant for judicial enforcement of the First Amendment the consensus among progressives was that rescuing the country from the poverty and inequality inflicted by the Great Depression had to come first and that preserving judicial review would stand in the way that's what Wisconsin Senator Robert LaFollette Jr had in mind when he argued quote that no kind of legal guarantee has ever been able to protect minorities from the hatreds and intolerances let loose when an economic system breaks down no doubt looking overseas In This Moment okay so why didn't Court curbing legislation pass public Figures were floating everything from jurisdiction stripping measures to Constitutional Amendments abolishing judicial review there was a lot of momentum for some of the more moderate proposals I want to suggest that the answer has a lot to do with the civil liberties movement but not in the way that one might expect which brings us to part three the conservative roots of the First Amendment until the mid-1930s conservatives had relatively little to say about the First Amendment Free Speech was often included in a sort of laundry list of Liberties that courts were meant to protect from popular majorities but Liberty of contract tended to get much higher billing and when it came to actual first amendment challenges by radical defendants in court conservative commentators almost always came out on the side of conviction of public order during the new deal however conservatives awoke to the appeal of a strong Bill of Rights and the story here is basically the flip side of what I've said about liberal ambivalence toward judicial enforcement of the First Amendment as liberals attacks on judicial review became stronger and more plausible conservatives were casting about for a cause that would rehabilitate the judicial reputation and they found it in civil liberties the real Turning Point came in the spring of 1937 when President Roosevelt announced his own solution to the problem of an unresponsive Court his so-called court-packing plan which would have enabled him to appoint up to six additional justices to the United States Supreme Court conservative groups ranging from the U.S Chamber of Commerce and the National Association of Manufacturers to the American Liberty League quickly denounced the plan and one of the most vocal critics was the American Bar Association which was uh quite conservative at the time and in fact the ABA mobilized a massive publicity campaign against the bill and so a committee gathered to brainstorm potential lines of attack and and uh it's quote best idea was to develop a series of radio broadcasts featuring quote famous cases in which personal rights have been upheld by the Supreme Court I should say there weren't very many of them at the time and the ACLU had brought almost all of them against conservative opposition but now we get this promoting of these same few Decisions by the ABA now as events unfolded Court curbing legislation never ended up going through perhaps the aba's appeal to civil liberties is part of the reason of course the more significant reason was that it lost its urgency in the spring of 1937 the Supreme Court began to uphold New Deal legislation beginning with the state minimum wage law and quickly proceeding to the Wagner Act you may have heard this referred to as the switch in time that saved nine but the defeat of the Court packing plan didn't spell the end of conservative support for civil liberties lawyers were worried that one anti-newdeal decision one backtracking from that switch in time could revive the assault on the court the ABA soon launched a public relations program to improve the image of lawyers and judges and its solution was to create a committee on the Bill of Rights that would reclaim civil liberties as a conservative issue in fact the committee's first chair a prominent Wall Street attorney named Grenville Clark gave a speech entitled conservatism and civil liberty in June 1938. in which he complained quote that the active defense of civil liberty has been allowed to drift very largely into the hands of elements of the left and he emphasized that the ACLU notwithstanding the admittedly radical views of much of its leadership deserved credit for defending unpopular causes but what he said was that by cornering the field of civil liberties so completely the organization had created quote the public impression that the active defense of civil liberties is not a matter of primary concern of those of more moderate views what he was suggesting was that civil liberties might have been defended more vigorously by conservatives if the ACLU had not so strongly tainted the cause with the stamp of radicalism okay as I've mentioned uh when conservatives first took up the civil liberties costs cause uh they anticipated that the Court's protection of free speech would accompany and legitimate its property rights cases not replace them so I should say something here about the so-called constitutional Revolution apologies for all the text uh up here but the New Deal transformation and constitutional law is often captured with the shorthand Caroline products footnote for and in that famous footnote which you uh see here the court made clear that it would defer to Congress on economic regulation but signaled that it would be more rigorous in its review of cases involving Free Speech or racial minorities so the Constitutional Revolution which has also been dubbed the new deal settlement or the bifurcated review process is conventionally understood to contain two distinct but interconnected Parts first a relaxation of structural constraints on congress's control over the economy and second an invigoration of constitutional protections for racial and ethnic minorities along with free speech and the latter part is said to ensure the Democratic legitimacy of the former the idea is that judicial deference to the outcomes of majoritarian uh Democratic processes requires robust debate with ample protection for minority interests as state policy is formulated and enacted now however sensible that sounds few contemporaries understood judicial review as susceptible to decoupling in this way on the contrary most new dealers assumed that judicial review came as a package and that in the absence of Constitutional Amendment expansion of the first and 14th Amendment to protect personal rights would have the inevitable effect of buttressing the Court's economic due process cases as well the Court's spring 1937 decisions changed all that and in the new legal landscape the conservative strategy quickly morphed most conservatives cast the Court's decision upholding New Deal legislation against constitutional challenges as basically a betrayal of their deepest conviction they were intensely critical of those cases there was no question that they would have revived lochner style substantive due process Liberty of contract property rights uh if uh they could have but as it became increasingly apparent that doing so was not in the cards they quickly discovered the power of the First Amendment not just as a legitimating uh factor for the Judiciary but as an independent check on government Authority as the aba's president explained in announcing that new committee on the Bill of Rights a strong First Amendment might prevent the trampling of quote well-worn shoes but it would also come into play quote when the crushed toes were encased in patent leather Footwear of the wealthy or the rights denied or the Privacy invaded were those of the business Corporation okay with an endorsement like that business groups came on board too like the bar American industry was facing a formidable public relations problem and as the New Deal Drew to a close the National Association of Manufacturers launched its own uh PR program to quote link Free Enterprise in the public Consciousness with free speech Free Press and free religion warning that if any one of those components were weakened quote the whole structure of our freedom will collapse meanwhile the U.S Chamber of Commerce highlighted the potential benefits of constitutional protection for commercial speech and in June 1941 the keynote speaker admonished the chambers annual meeting to uphold quote the rights of the individual and of the minority with the hope that doing so will pave the way to the right to work which he considered quote the first right of all so I'm short on time so I have to leave a fuller account of how this transformation played out to the book but I'll just preview a couple of highlights so first in controversies over the First Amendment uh over the the rights of businesses and corporations under the First Amendment the ACLU sided with business groups and parted ways from the labor movement and from New Deal administrators and second the decision to do so nearly toward the ACLU apart it was a profound crisis for the ACLU still I want to emphasize that this was not simply a matter of the ACLU abandoning its original goals rather the ACLU felt that protecting business speech even when it seemed more economic than expressive was the only way to ensure that picketing and boycotts would be protected too so for a brief time it seemed that that Gambit might work the first Supreme Court case to explicitly invoke the reasoning of footnote 4 of Caroline products was a 1940 case called Thornhill via Alabama and in it the court announced a First Amendment right to pick it on the theory that picketing communicated political and economic ideas this was a bold move right for the court and its significance was not lost on contemporaries in 1940 a labor scholar named Charles Greg Gregory published an article in the ABA Journal fretting that to fit what he called economic compulsion within the Ambit of the first amendment was a perversion of an American ideal and sounding here strangely like contemporary critics of citizens united uh Gregory reflected and I'm going to read a long quote here for years the old Court was Under Fire because its doctrine of substantive due process developed to make possible the invalidation of local legislative experiments it now seems from the picketing cases of last spring that the new court is perpetuating this error by using the 14th Amendment to establish its conception of the guarantees of Liberty set forth in the First Amendment Gregory in other words was lamenting the lochnerization of the First Amendment what he saw as the Distortion of a constitutional ideal in the service of unsettling government efforts to regulate Labor Relations and in the face of criticism like Gregory's the Supreme Court quickly whittled away at constitutional protection protection for picketing within a decade virtually everything the interwar ACLU had accomplished to afford protection to labor speech was undone as the dissenting justices observed in a 1957 case upholding an anti-picketoning injunction the court had declared as they put it a formal surrender from its first amendment protection of Labor speech but by then of course the first amendment served other ends even from the perspective of the ACLU a 1941 annual report announced that the aclu's Battleground was chiefly in the courts its volunteer attorneys had carried scores of civil liberties issues to the United States Supreme Court where decisions in case after case had firmly established the interpretations of the Bill of Rights which the union supported and the ACLU never again retreated from its support for judicial enforcement of the First Amendment okay so where does all this history leave us so for many years Scholars and pundits took it on faith that the ACLU got it right that a strong First Amendment would preserve a platform for transformative political ideas the dominant understanding of the First Amendment during this period was infused with an aspirational commitment to participatory democracy minority rights and peaceful social change for a generation who came of age with McCarthyism and the Civil Rights Movement the first amendment was what protected peaceful Democratic protest from a potentially repressive state in the hands of the Warren Court civil liberties protected soapbox orders civil rights Marchers and anti-war protesters America's commitment to free speech began became one of the nation's most cherished values and one that was exported with pride to aspiring constitutional democracies throughout the world but as I suggested in the introduction that Rosie assessment has recently changed for the first time in decades there's a real debate today not only about the limits of the First Amendment but over the extent to which the Judiciary should be calling the shots now I'm not going to pretend here that history can tell us how to proceed but whatever one's views I do think it's crucial to understand that the modern first amendment was uh it was sorry what the modern first amendment was intended to achieve and what it accomplished in fact it's worth observing here that there has been very little progress in extending first amendment protection to the early aclu's guiding ambition the right to strike but last spring the refusal of public sector employees to contribute to Union expenses very nearly became a First Amendment freedom citizens united is just one of many First Amendment victories for corporations at a time when according to to Hillary Clinton the Supreme Court is specially especially inclined to hear a case if the U.S Chamber of Commerce is the petitioners citing a study there and Clinton may consider that Trend to be a departure from the Court's historic commitment to what she called in our opening quote to the little guy but that's a hard interpretation to square with history certainly the Court's current direction would not have surprised the chambers 1937 membership which was advised at uh its 1937 annual meeting to guard against the destruction of civil liberties I'm quoting here because freedom of Enterprise and personal freedom are but expressions of one and the same thing Hillary Clinton has pledged that if she's elected she will introduce a constitutional amendment to overturn Citizens United and the ACLU has declared its firm opposition to any proposed amendment that will limit the speech Clause of this first amendment and for the past few months the editorial Pages have been packed with cautionary pieces warning about the dire implications of retreating from the most speech protective version of the First Amendment and there are of course strong arguments of on both sides of this debate as there were in the 1930s but I think there's one thing that we should all agree on namely that there is nothing new about Clinton's accusation that the Roberts Court is as she put it stacking the deck in favor of the already wealthy after all it was almost 80 years ago that a group of disillusioned lawyers broke ranks with the civil liberties movement and sought a constitutional amendment to to limit judicial review what they said was this there can be no true enforcement of the Bill of Rights in the interests of persons instead of wealth except by the elected representatives of the people and with that I'd be very happy to take questions [Applause] if I could invite anyone who'd like it ask to ask a question to please come to the microphones on the side yes hi um very good presentation thank you a question about the ACLU because they play a major role in all of this how are they funded and do they enjoy tax-free status are you speaking about during this historical period or today well in general the historical period end today um funded primarily um actually uh in 1929 changed its status to a corporation so that it could receive bequests but it was it was uh uh funded uh well I should say uh at first it was funded by uh largely um uh uh some some uh it had one very wealthy board member who funded a lot of its activities uh and increasingly it began to rely on smaller contributions um obviously that they took a big hit uh with the um Great Depression and to some extent it may be that their need to bring in a broader range of uh contributions uh influenced its agenda it tried to make itself uh uh sort of more more appealing to a broader audience during that during that period um I uh I I don't want to speak to those to its status today because I don't get them uh well as does anyone know that I'm I don't know um they're not text deductible okay they all do it they all have they all set up foundations foundations that meet the 501c3 criteria but we call the ACLU lobbies that's that's different that's uh ordinarily legal defense organization so you know for example with the NAACP the NAACP legal defense fund uh is separate and is tax exempt whereas the lobbying organization is not I don't know how the ACLU manages that uh yeah yes could I ask you to if someone calls up the ACLU and or uh the NAACP and says I'm in jail for or I've been arrested on on a free speech issue and the lawyer is sent to assist that person that the expense of that Enterprise is covered by the organization and then contributions to cover that expense our tax exempt is that correct it seems reasonable to me I I'm just going to have to apologize and say I am by no means an expert on the aclu's tax status I'm sorry okay thank you thanks hi thanks very much for your presentation the uh the last statement you made that you really can't depend on the court it's always going to be in the hands of the wealthy is the Warren Court an exception to that is that the I mean it might maybe the real question is uh it'll be a ballot box but it'll be The Ballot Box that determines the composition of the court that uh determines that which makes uh which makes to the the current election pretty important okay so great a couple of things to say about that first I want to clarify that that was uh that I was not articulating my view there I I was drawing attention to the fact that this debate that we're having now about amending the Constitution in the context of citizens united is one uh that resembles very closely uh uh a debate over uh amending the Constitution in the 1930s and that many of the same objections were raised as to the question of whether the Warren Court was an exception um to some extent they were um as you may know the the Warren Court resisted uh what a lot of uh poverty lawyers were trying to do at the time which was to make wealth itself a suspect classification um under the the uh you know the Constitutional um uh framework that I've explained with respect to to caroling products which would have allowed them to take on a sort of more interventionist redistributive approach um but you're right to say that the Warren Court was certainly attentive to the ways in which money influenced politics and was also more willing to check the rights of for example commercial speech there was a sort of break from the end of the period I discussed until the 70s or 80s you know it's interesting that you raised the question of judicial appointments because of course that too and it's not something I could talk about today but that too was a very Salient issue during the 1930s that's of course what fueled the court packing plan was this idea that you had to think about who it was that was going to be on the court that there were various ways to influence what the court did one of them was to change the Court's mandate either uh through the Constitution or legislatively but another one was through the appointment process and in fact one of President Roosevelt's close advisors who also happened to be general counsel for the ACLU said just that basically we have to get over this idea that there's a good judge or there's a bad judge there is only what he called a Judge of our economic views or of someone else's um and uh last thing I'll say about that is that uh that was also the impulse behind the judicial recall so I I mentioned Teddy Roosevelt and the recall of judicial uh opinions during the Progressive Era the biggest solution that was offered to try to solve this problem of Judges being as they saw it beholden to corporate interests was to make the judges themselves democratically accountable and in particular to make them susceptible to recall in the event uh by by popular majorities in the event that their decisions undermined the public uh the public welfare or or public opinion thank you [Applause]

Channel: US National Archives

Views: 1,937

Keywords: US National Archives, NARA

Id: RZCqNqIyT4g

Length: 65min 42sec (3942 seconds)

Published: Wed Sep 21 2016