“People Crushed by Law Have No Hopes but from Power”: Free Speech and Protest in the 1940s

Abstract

In a trio of cases handed down on the same day in 1950, the Supreme Court denied constitutional free speech protection to civil rights picketing and labor picketing. The civil rights case, Hughes v. Superior Court, has often been portrayed as an early test case about affirmative action, but it originated in repression of an alliance of radical labor and civil rights activists exasperated by the legislature's repeated failure to enact fair employment law. Seeking a people's law like the labor general strikers and sit-downers of the 1930s and the civil rights sit-inners of the 1960s, they insisted that the true meaning of free speech was the right to speak truth to power. Courts and Congress forced the labor movement to abandon direct action even as it became the defining feature of the civil rights movement. The free speech rights consciousness they invoked challenged the prevailing conservative conception of rights and law. Direct action was a form of legal argument, a subaltern law of solidarity. It was not, as civil rights protest is often portrayed, a form of civil disobedience. What happened during and after the case reveals how the subaltern law and formal law labor and civil rights began to diverge, along with the legal histories of the movements.