Faculty Bibliography

In the early decades of the twentieth century, business leaders condemned civil liberties as masks for subversive activity, while labor sympathizers denounced the courts as shills for industrial interests. But by the Second World War, prominent figures in both camps celebrated the judiciary for protecting freedom of speech. In this strikingly original history, Laura Weinrib illustrates how a surprising coalition of lawyers and activists made judicial enforcement of the Bill of Rights a defining feature of American democracy. The Taming of Free Speech traces our understanding of civil liberties to conflict between 1910 and 1940 over workers’ right to strike. As self-proclaimed partisans in the class war, the founders of the American Civil Liberties Union promoted a bold vision of free speech that encompassed unrestricted picketing and boycotts. Over time, however, they subdued their rhetoric to attract adherents and prevail in court. At the height of the New Deal, many liberals opposed the ACLU’s litigation strategy, fearing it would legitimize a judiciary they deemed too friendly to corporations and too hostile to the administrative state. Conversely, conservatives eager to insulate industry from government regulation pivoted to embrace civil liberties, despite their radical roots. The resulting transformation in constitutional jurisprudence―often understood as a triumph for the Left―was in fact a calculated bargain. America’s civil liberties compromise saved the courts from New Deal attack and secured free speech for labor radicals and businesses alike. Ever since, competing groups have clashed in the arena of ideas, shielded by the First Amendment.

This article recovers the institutional alternatives to judicial enforcement of civil liberties during the New Deal. Based on archival research, it demonstrates that the court-based strategy was deeply contested and remained controversial well after the foundational First Amendment victories. Today, theories of civil liberties are premised on state neutrality in the domain of public debate; in the 1930s, the most prominent accounts demanded affirmative government intervention to correct distortions in the marketplace of ideas or to advance substantive rights. In examining these forgotten traditions, the article highlights the close and unexplored connection between civil liberties and organized labor during the New Deal. Surprisingly, early proponents of civil liberties understood the term to encompass, above all, the rights to organize, picket, and strike. Reconstructing the competing visions of civil liberties and their optimal enforcement before and after the “Constitutional Revolution” reveals the anticipated trade-offs of the judicial strategy, with important implications for theoretical accounts of constitutional change.

This article examines the interwar expansion of the ACLU agenda to incorporate nonpolitical speech. In the early 1920s, it was ACLU policy to contest an obscenity regulation only if its underlying motivation was the suppression of disfavored political or economic views. By 1931, however, the ACLU was an aggressive advocate of artistic freedom and birth control and the undisputed leader of the anti-censorship campaign. The catalyst for change was a postal censorship dispute involving a sex education pamphlet, The Sex Side of Life: An Explanation for Young People, written by the former suffragist and outspoken birth control activist Mary Ware Dennett. Postal authorities declared the pamphlet obscene despite its many endorsements from medical practitioners, religious groups, and government agencies. ACLU board members agreed to defend The Sex Side of Life because they believed that liberalizing access to scientific knowledge promoted the public interest in a familiar progressive fashion and would highlight the dangers of suppressing subversive ideas. Unexpectedly, however, the litigation precipitated a far more sweeping anti-censorship campaign. Dennett’s heavily publicized conviction, overturned by the Second Circuit on appeal, generated popular hostility toward obscenity laws and convinced ACLU attorneys that speech should be protected regardless of its social value. With that shift, the ACLU inched closer toward a new model of civil liberties premised on individual expressive freedom.