![]() ![]() The First Amendment was once the banner under which labor and civil rights activists mobilized to create a more equitable political economy. The intellectual credibility of the First Amendment under any theory of free speech jurisprudence-whether in enabling democratic government, facilitating the discovery of truth, advancing autonomy, or promoting tolerance-depends on even-handed protection for peaceful expression in public forums on matters of public concern. Restoring the First Amendment protection that labor protest once enjoyed will not jeopardize antitrust or other regulation of expressive conduct in the workplace. Not only does labor protest today resemble the labor protest that the Court deemed protected free speech in the late 1930s, but the constitutional line between labor and civil rights protest that emerged between 19 has not survived the conditions that gave rise to it. The Roberts Court’s extension of heightened First Amendment scrutiny to regulation, like labor law, that was formerly deemed economic and subject to rational basis review provides an opportunity for progressive activists. Although the Supreme Court’s conservative First Amendment judicial activism has raised doubts about whether constitutional protection for free speech can serve progressive ends, this Essay identifies a silver lining to the deregulatory use of the First Amendment. Any progressive agenda for change will require robust exercise of speech and associational rights that law currently restricts for labor unions.
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