LW

This is where the story gets most interesting. Many New Deal enthusiasts were perfectly satisfied with the new state of affairs. For example, the National Lawyers Guild championed free speech and labor rights as policy goals rather than constitutional limitations; after considering its implications for civil liberties, the organization supported the court-packing plan and undertook a study of proposed amendments to limit judicial power. The International Juridical Association, an organization of left-wing labor lawyers, put out a pamphlet arguing that only elected representatives could be trusted to enforce the Bill of Rights “in the interests of persons instead of wealth.”

For these groups, the threat of reinvigorating property rights outweighed the potential gains of judicial enforcement of civil rights and civil liberties. But for the ACLU, the court’s new deference toward economic regulation made a judicial strategy for enforcing civil liberties even more alluring. Over the coming months, the organization doubled down on its litigation campaign. For assistance, it turned not only to sympathetic liberals, but also to the conservative bar.

Conservative lawyers eagerly took up the civil liberties baton, as did the corporate clients they represented. According to the ABA, the positive publicity that flowed from its efforts to publicize the Supreme Court’s civil liberties cases during the court-packing fight was unprecedented. Defending civil liberties promised to attract new members and improve lawyers’ negative reputation. To that end, the ABA created a Special Committee on the Bill of Rights, whose first action was to file an amicus brief on behalf of the ACLU’s efforts to extend constitutional protection to labor organizers in Jersey City.

Meanwhile, the US Chamber of Commerce and the National Association of Manufacturers mounted public relations campaigns to equate free enterprise with free speech, free press, and free religion, and to expand them all simultaneously. They immediately understood that the First Amendment could substitute for substantive due process in challenging government regulation.

By the end of the decade, the ACLU was siding with business groups in their litigation against the National Labor Relations Board (NLRB), which (after the infamous Battle of the Overpass) had prohibited the Ford Motor Company from issuing anti-union communications to its employees. Labor lawyers countered that employer anti-unionism, especially in the context of violent union-busting and other flagrant violations of the National Labor Relations Act (NLRA, or Wagner Act), was an exercise of economic coercion rather than expression, and thus outside the legitimate scope of the First Amendment. Many within the ACLU agreed, pointing to the patently hierarchal economic relationship between employers and employees that made meaningful discussion impossible.

For the ACLU’s core leadership, however, erecting a line between expression and economic coercion endangered the right of agitation — which, after all, was premised on eroding precisely that traditional distinction. They thought that the best way to protect the collective power of workers was to abstract free speech away from its material preconditions as well as its presumptive effects. And so, in a move that tore the organization in half, the ACLU joined business advocates, the mainstream press, and the ABA in arguing that the NLRB’s construction of the Wagner Act was an unconstitutional infringement on “employer free speech.” To constitutionalize the rights to picket and boycott, the ACLU expunged considerations of economic inequality from the definition of First Amendment expression.