Re-Assembling Labor

Organized labor’s judicial, political, and public image is often associated with violence and anarchy. These descriptions are not spun out of whole cloth: violent uprisings that challenged the political and economic order were common in the early days of American labor unionism. But the assumptions underlying past judicial rhetoric and labor law doctrine have outlived their original context. Historical antecedents applied to modern protests like Fast Food Forward, OUR Walmart and the Occupy Movement yield troubling and inconsistent results. Although these tensions have not gone unnoticed, scholarly commentary to date has overlooked the important connection between the collective, group-based nature of labor activism and the First Amendment’s right of assembly. 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 I and II by situating the historical relationship between labor and assembly. Part III 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 IV applies these theoretical insights, suggesting how the gains of assembly might facilitate a richer understanding of labor unionism and its connections to the rest of First Amendment jurisprudence