An Anti-Democratic Court

Make no mistake about it: the Supreme Court of Debs’s era was certainly a counter-democratic institution.

Over a decade before they condemned Debs to prison, the Supreme Court made one of its most infamous rulings in Lochner v. New York, striking down a law regulating the working conditions for bakers on the grounds that it violated the Due Process Clause’s guarantee of liberty of contract. Throughout this period — often called the Lochner era — the Supreme Court repeatedly struck down laws enacted to protect working people and limit corporate power.

Yet when civil liberties were at stake, the courts could seldom find anything in the Constitution to protect them. In the late nineteenth century, a business-friendly Supreme Court went so far as to overturn Reconstruction-era civil rights legislation and gut the Fourteenth Amendment.

Curbing the Supreme Court’s powers was a hallmark demand of progressives and radicals. During the speech that landed Debs in jail, he said, in a passage that’s worth quoting at length:

Who appoints our federal judges? The people? In all the history of the country, the working class have never named a federal judge. There are 121 of these judges and every solitary one holds his position, his tenure, through the influence and power of corporate capital. The corporations and trusts dictate their appointment. And when they go to the bench, they go, not to serve the people, but to serve the interests that place them and keep them where they are.

Why, the other day, by a vote of five to four — a kind of craps game — come seven, come ’leven — they declared the child labor law unconstitutional — a law secured after twenty years of education and agitation on the part of all kinds of people. And yet, by a majority of one, the Supreme Court a body of corporation lawyers, with just one exception, wiped that law from the statute books, and this in our so-called democracy, so that we may continue to grind the flesh and blood and bones of puny little children into profits for the Junkers of Wall Street. And this in a country that boasts of fighting to make the world safe for democracy! The history of this country is being written in the blood of the childhood the industrial lords have murdered.

It should surprise no one, then, that a bastion of class rule, which saw its raison d’être as shredding protections for workers while crafting new privileges for the wealthy, would prove hostile to a radical socialist labor agitator.

But Debs’s case was hardly a loss for free speech rights. In many ways, it helped usher in the modern era of free speech norms. Assailed by an unsympathetic judiciary, Debs’s defenders took to the streets, gathered petitions, and walked picket lines. As historian Ernest Freeberg has documented, a movement for “amnesty” for war resisters sprung up across the United States. This movement was “led by social activists, not lawyers and legal scholars, and their use of free speech arguments were more pragmatic than precise.” Nonetheless, these activists passionately debated the meaning of free speech. And ultimately, they helped redefine its meaning. For Freeberg, the amnesty movement helped birth civil liberties.

Freeberg is hardly the only historian to note the radical origins of civil liberties. The American Civil Liberties Union (ACLU), which introduced the term “civil liberties” into the American lexicon, began as the Civil Liberties Bureau within the American Union Against Militarism. Opponents of war and militarism recognized that with the state cracking down on them, their very survival required a vigorous defense of free speech. But as historian Laura Weinrib has argued, early civil libertarians were motivated by another concern as well: workers’ rights. Viewing themselves as partisans of the class war, they fought for free speech because they abhorred the suppression of organized labor.

And that included Debs. While Debs’s battle to fight against militarism is memorialized as a milestone for free speech, it was not Debs’s first legal battle. Before Debs was a socialist, he was president of the American Railway Union. In 1894, Debs’s union, the American Railway Union went on strike against the Pullman Company. While he had opposed the decision to strike, as president of the union Debs threw his full weight behind the strike. It was crushed by federal troops. The Pullman Company sought an injunction against the union decreeing their boycott of Pullman cars illegal. When Debs refused to comply with the order, he was held in contempt of court. The Supreme Court unanimously upheld Debs’s conviction and he went to jail.

The Pullman Strike is remembered as a pivotal moment in labor history, but unlike Debs’s prosecution under the Espionage Act, it is less frequently remembered within the history of free speech. But as Weinrib points out, the right to engage in forms of “agitation” such as strikes or boycotts were not only viewed as free speech concerns for early civil libertarians, they were often the motivating factor in taking up the cause of civil liberties in the first place.

A Radical Vision of Civil Liberties

In the intervening century, the popular image of the Supreme Court has shifted. It is often associated with landmark decisions to end segregation, affirm marriage equality, and protect unpopular speech, such as flag burning. That was always overly optimistic. But with a new conservative majority on the court, including two justices appointed by Trump, we are seeing a judiciary more clearly hostile to progressive goals.

Perversely, today’s judicial reactionaries have co-opted the First Amendment for a Lochner-like deregulatory agenda. Striking down everything from campaign finance laws to public sector bargaining fees, the First Amendment is quickly becoming a weapon for the Right. This isn’t an entirely new phenomenon. Weinrib has argued that while elites may have at first have been hostile to civil liberties, they came to accept them as they saw how civil liberties could be partially refashioned to serve their own ends.

Today’s merger of First Amendment jurisprudence with economic liberalism comes at a time when some on the Left have soured on stringent free speech protections, especially on issues like hate speech. But weakening free speech rights will come back to haunt the Left — providing our opponents tools to silence us. The Left needs free speech. And the juxtaposition between today’s First Amendment Lochnerism and the radical aims of early civil libertarians shows that free speech also needs the Left.

The labor agitators, anticapitalists, and antimilitarists who made up the ranks of the early civil liberties movement did so because their survival depended on it. They understood that the battles for free speech rights were connected to the wider movement struggling for a more just world. Today’s civil liberties advocates often seem divorced from this struggle for radical change, making free speech at times seem soulless.

The radical vision of civil liberties presents an antidote to the modern day Lochnerites’ co-option of free speech rhetoric. Early radicals viewed both employers’ and the state’s assaults on workers’ right to agitate for better conditions as civil liberties deprivations. While judicial reactionaries may cloak their actions in the language of the First Amendment, weakening public sector unions or allowing corporate money to overrun elections are defeats for free expression. And with so much of our modern-day public forum existing on private social media platforms, we need a free speech advocacy that recognizes the tyranny of the market as an equal threat to free expression as state repression.

Such a radical vision of free speech doesn’t have much grounding in case precedent. It certainly won’t find many friends on our business-friendly Supreme Court. But when early civil libertarians set out to redefine free speech, they faced the same obstacles. And as the fight to free Debs one hundred years ago shows, powerful social movements for a more democratic world can alter history.