Re-Assembling Labor

Organized labor’s judicial, political, and public image is often associated with violence and anarchy. This image has reinforced significant legal constraints on public protests, boycotts, and picketing orchestrated by labor organizations. Although violent uprisings that challenged the political and economic order were common in the early days of American labor unionism, the assumptions underlying past judicial rhetoric and labor law doctrine have largely outlived theiroriginal context. Historical antecedents applied to modern protests characterized by civil disobedience and nontraditional methods of group mobilization like Fast Food Forward, OUR Walmart, and the Occupy Movement yield troubling and inconsistent results. Although these tensions have not gone unnoticed, scholarlycommentary to date has overlooked the important connection between the collective, group-based nature of labor activism and the First Amendment’s right of assembly, and how the history of assembly can inform contemporary protections for labor unionism. We seek to draw the lessons of assembly squarely into contemporary labor law - to re-assemble labor law around the theory and doctrine of assembly that formed its early core. We begin in Parts II and III by situating the historical relationship between labor and assembly. Part IV develops three theoretical insights reinforced by the connections between assembly and labor, and obscured by the contemporary focus on the rights of speech and expressive association. First, collective activity represents more than simply an aggregation of individual voices. Second, groups are not one-dimensional but have many functions, purposes, and messages, which are developed and negotiated through collective expression and existence. Third, expression depends on the context in which it unfolds, and current doctrine too easily obscures that context, with significant ramifications for both public perception and group efficacy. Part V applies these theoretical insights, suggesting how the gains of assembly might facilitate a richer understanding of labor unionism, labor law, and their connections to the rest of First Amendment jurisprudence.

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