Fisk on “People Crushed by Law Have No Hopes But From Power”: Free Speech and Protest in the 1940s @BerkeleyLaw
Catherine Fisk, University of California, Berkeley, School of Law, has published ‘People Crushed by Law Have No Hopes But from Power’: Free Speech and Protest in the 1940s at 39 Law & History Review 173 (2021). Here is the abstract.
This history of Hughes v. Superior Court, 339 U.S. 460 (1950), excavates the role that law played in restraining activism by radical civil rights and labor activists and their lawyers. The case has uniformly been understood as a test case of affirmative action and as part of a string of cases in which the Supreme Court restricted First Amendment protection for labor protest. These interpretations are not wrong, but they do not tell the whole story. The case arose in efforts to build progressive, racially-inclusive unions throughout the west, in agriculture and food processing, and in warehouse and port work. The activists whose arrest for protest ultimately reached the Supreme Court sought to create a people’s law and, like the general strikers and sit-downers of the 1930s and the sit-inners of the 1960s, insisted that the true meaning of free speech was the right to speak truth to power. They invoked a tradition of activism that labor was gradually being forced to abandon even as it was about to become the defining feature of the civil rights movement. The free speech rights consciousness they invoked challenged the conservative conception of rights and law that had come to prevail in the NLRB, Congress, and most courts.
For these activists, direct action was a form legal argument, an expression of solidarity that was lawful in itself. It was not, as civil rights protest is often portrayed, a form of civil disobedience to law. At a pivotal moment in the history of the two major social movements of the era, labor protest and civil rights protest were two faces of same thing rather than a tactic that two separate movements both used. What is sometimes narrowly called rights consciousness was, as Richardson and Hughes used it, a subaltern law. What happened during and after Hughes reveals how this subaltern law and formal law began to diverge as the legal histories of these two transformative social movements began to diverge.
Download the article from SSRN at the link.