Title: How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech
Abstract: Standard accounts of constitutional development concerning the freedom of 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 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 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, 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.
Publication Year: 2006
Publication Date: 2006-06-15
Language: en
Type: article
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Cited By Count: 6
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