How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech

40 Pages Posted: 15 Jun 2006

Abstract

Standard accounts of constitutional development concerning the freedom of speech are constructed around two dynamics. The first involves cycles of expansions and contraction, tied to fears that are typically constructed as excessive (such as the dangers of enemies in wartime, or of political instability by domestic political opponents). The second involves a trajectory, despite periodic setbacks, of secular linear expansion (such as over the course of the twentieth century). This article argues that habitual recourse to these two dynamics, and to the understanding of rights as "trumps," has obscured key features of (liberal) twentieth century constitutional development concerning the freedom of speech. Chief among these is the way in which speech rights have been simultaneously expanded and contracted - creating what I call "rights configurations" - in ways that serve not to limit state, but to enforce its substantive managerial and regulatory vision. In so doing, I argue, rights declarations work to consolidate and enforce the prevailing political regime. I demonstrate this process at work by a close study key aspects of labor law, in particular the way in which courts, in dialogue with popular discourse, social movement actors, Congress, and the National Labor Relations Board, negotiated the re-categorization of labor pickets, formerly forbidden as coercive conduct, as constitutionally protected speech, and, simultaneously, the way in which courts negotiated the re-categorization of ostensibly "pure speech" by employers concerning labor unions, in certain contexts, as a form of unprotected conduct. In engaging in this process of simultaneous expansion and contraction through re-categorization, courts, in conjunction with other regime actors, worked to consolidate and legitimate the regime. In so doing, and not incidentally, they provided alternative conceptual models concerning the freedom of speech. The influence of these models, I contend, was felt beyond its initial context, and helped to inform thinking concerning the constitutionality of racial and sexual harassment statues, campaign finance regulation, and broader liberal theories concerning the nature of political deliberation and its relationship to constitutionally protected speech.

Keywords: Constitutional Law, Freedom of Speech, Labor Law, American Political Development

Suggested Citation

Kersch, Kenneth Ira, How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech. University of Pennsylvania Journal of Constitutional Law, Vol. 8, p. 255, Spring 2006, Princeton Law and Public Affairs Working Paper No. 06-003, Available at SSRN: https://ssrn.com/abstract=908322

Kenneth Ira Kersch (Contact Author)

Boston College ( email )

McGuinn Hall
Chestnut Hill, MA 02467
United States

HOME PAGE: http://www.bc.edu/centers/cloughcenter

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