Portside

Unionization drives at Amazon warehouses and Starbucks locations have attracted months of national media attention. During 2021 workers and union organizers at the Bessemer, Ala. Amazon warehouse and at several Starbucks stores in Buffalo, N.Y. described—and decried—management’s suppression of pro-union speech through intensified surveillance of workers and threats of retaliation. Starbucks workers were suddenly accompanied on their shifts by managers chatting them up about the risks of unionization while they cleaned the espresso machines and bagged up the trash. A mailbox installed outside the Amazon warehouse was sheltered by an Amazon tent and within view of Amazon security cameras, causing workers to doubt whether their mail-in ballots were really secret. (The U.S. Postal Service said only USPS mail carriers had access to the mail; some workers said they saw Amazon security officers opening the box. The National Labor Relations Board had explicitly told Amazon not to request a new mailbox in that location.) Both Amazon and Starbucks workers were told that if they unionized their worksite, the location would close, and their jobs would disappear. Despite the threats, many workers persevered. In winter and spring of 2022, workers at several Starbucks locations unionized and workers at dozens more filed petitions to hold union elections. The newly organized Amazon Labor Union won an election to represent workers at a warehouse in Staten Island, N.Y. Regardless of the specific outcome of each unionization drive, these, and many other similar stories, raise the question of whether workers have real free speech rights and what it would take to strengthen workers’ speech rights.

Free labor, Karl Marx noted, is free in two ways. Unlike slaves or serfs, wage workers are free to sell their labor time to any employer willing to hire them or withhold their labor from any employer they do not wish to serve. But also, workers are free to starve since they are “free” from ownership of the means of production. The rhetoric of personal liberty was prominent in the revolutions that fought to harness the state to the legitimation, promotion, and enforcement of the capital-wage labor relation. (“Certain inalienable rights,” as Thomas Jefferson phrased it in England’s soon-to-be-lost North American colonies. “Les droits de l’homme,” as the French revolutionary Declaration of the Rights of Man put it.) The language of individual liberty obscured then—and continues to obscure now—the language of class. Looking through the lens of class reveals that, in lived practice, seemingly neutral liberties mean something very different for those on opposite sides of the capitalist class relation.

Theories of Free Speech, Capitalist vs. Democratic

Jack Balkin, in his 2004 article, “Digital Speech and Democratic Culture,” argued that capital’s preferred interpretation of the First Amendment gained extra traction in the U.S. courts in the 1990s and early 2000s. Lawyers working for capital developed a capitalist theory of free speech. This interpretation of free speech accepts a capitalist organization of economic affairs as given. No surprise there. But democracies often respond to social movements by softening inequalities to make capitalism more palatable. Instead, the capitalist theory of free speech exaggerates class inequalities; it sees free speech as a tool to promote profitability for companies that control communications networks (e.g., internet providers) or content (e.g., movie studios). Under this theory, Balkin wrote, the ruling interpretation of the First Amendment “ties the right to speak ever more closely to ownership of capital.” In this view, what matters is that Disney and Comcast can make a profit, not that you can tell your own stories.

Balkin emphasizes the different degrees of freedom for, on one side, the copyright owners and owners of the fiber optic cables and, on the other side, the rest of us. The current free speech regime also affords very different speech rights to those who sell their labor power than it does to those who purchase labor power. Employers have extraordinarily expansive speech rights. Employees have excruciatingly constrained speech rights. The wage-labor system feeds into a system of unequal speech rights and, reciprocally, the system of unequal speech rights feeds into the maintenance of the wage-labor system.

The capitalist theory of free speech didn’t always dominate. For much of the 20th century, the dominant theory of free speech was that the purpose of free speech is to foster full debate and lead to successful participatory, democratic governance. Variations of this view were articulated by scholars and jurists like Oliver Wendell Holmes, Jr., Louis Brandeis, Zechariah Chafee, John Dewey, and Alexander Meiklejohn. Despite some differences, the variants of this theory of free speech all accept the premise that the legitimacy of the government depends on the openness of political debate. Repression of dissent, in this view, delegitimizes the policies chosen and the political system as a whole. Along with the enabler-of-democracy theory of free speech, 20th-century First Amendment interpretation established a hierarchy of speech categories, some of which merit greater protection from restraint than others. Speech that bears on political issues—that is, speech that contributes to the project of democratic self-government—traditionally is held in highest regard by the courts. In some contexts, the hierarchy of speech categories still shows up in legal reasoning.

In the 21st-century United States, the “speech” that is granted Constitutional protection from constraint is frequently identified by the state as an activity of capital, enacted through market transactions. In market transactions, sellers relinquish ownership rights over what is sold; buyers gain them. There is an extensive market for the buying and selling of speech and access to audiences—the public relations and advertising industries, for example. One consequence of having a large speech-for-hire market is that capital commands an outsize share of voice. Even if you didn’t work at the Bessemer Amazon warehouse, you probably saw the anti-union messaging in the lead-up to the (failed but later ruled invalid) union election in spring of 2021. Conversely, under a “free” labor regime, workers sell themselves piecemeal, by the hour, by the day. A life cannot be segmented into component parts so neatly. We find that when labor power is sold, free speech rights enter into the package—labor cedes them, and capital gains them.

Authoritarian Governments at Work

Philosopher Elizabeth Anderson calls workplaces sites of “private government.” It is not just the state that governs. Any time decisions are made that subjects must follow, we have government. By this definition, workplaces are most definitely governed: Bosses make decisions that workers must follow. The reason she calls this form of government “private” is that the people who must follow the rules (workers) have no say in setting the rules. Whether the governing authority is a state or non-state actor is a different question. By Anderson’s definition, despotic rule at any site, whether state or non-state, is private government. Nationwide struggles for political democracy are an effort to make the government a public thing, elected by and accountable to the citizens. A standard-issue capitalist workplace is a site of private government not because the governing authority isn’t the state, but because the governance is despotic.

Some people try to deny that employers really have substantive authority over workers by pointing to the core freedom that “free” labor does have—the right to quit. Anderson finds the denial absurd—“This is like saying that Mussolini was not a dictator, because Italians could emigrate”—but the denial does work as a diversionary tactic. Many people who are skeptical of state power or resistant to state power nevertheless accept employers’ power. But we shouldn’t trust any employer’s power, even if they are not obviously abusing it right now. Even benevolent dictators are still dictators. If a “nice” employer is so inclined, they may offer a generous pay and benefits package and a pleasant work environment; they may even invite employee input into decisions and forbear to penalize employees who dissent. But that forbearance is at the employer’s discretion. The employer may just as readily rescind employment perks, refuse employee input, and suppress dissent.

U.S. law only protects speech from constraints on freedom when it is the state that imposes the constraint. This is known as the “state action doctrine.” The wording of the First Amendment does not say that all people may speak freely in all circumstances; it says that Congress may not pass laws restricting speech, press, assembly, or exercise of religion. Current legal thinking applies the same First Amendment constraints to state governments as to the federal government. However, the First Amendment places no limits on what private citizens might do to restrain others’ speech. Employers regularly restrain workers’ speech and this is generally considered legal.

Speaking About Unions

Outside the workplace, speech about (municipal, state, or federal) government generally carries the highest level of First Amendment protection. Within the workplace, speech about (private) government is probably the most vulnerable. Worker speech advocating for greater worker voice in governance—i.e., union organizing in not-yet-organized workplaces—is especially aggressively suppressed, despite provisions of the National Labor Relations Act (NLRA) that are meant to protect talk of unionization. Employers use their property rights to amplify their own speech and suppress opposing speech. They can do so by purchasing copious amounts of anti-union speech and purchasing access to communications networks (or deploying internal communications networks they already own) to ensure that employees, government representatives, and the general public see and hear their message. The U.S. speech-for-hire industry features an extensive sector devoted to anti-union speech. Union-avoidance specialists work to suppress union organizing and to prevent state intervention that might facilitate union organizing. Sociologist Ruth Milkman writes, “[T]he rules defining labor relations under the [National Labor Relations Act]... have been captured by the union-avoidance industry and by the employers who rely on it.” Already in the mid-1950s, employer-affiliated industrial relations expert and self-described “union buster” Albert Beeson was named to the National Labor Relations Board (NLRB). In the hearing leading to his confirmation, he boasted of having weaponized the First Amendment against labor; he said that he had “free speeched” employees into voting against unionization.

At the same time that employers can purchase the services of union busters, employers also own the time of their employees. (If a worker uses paid work time to do something other than their assigned work duties, it is called “theft of time.”) Paying a wage gives employers the authority to say how workers will use their days. Putting these two purchases together, employers faced with the possibility of unionization often hold captive-audience meetings—meetings that workers are required to attend during their work hours. Employers and their hired consultants fully air their arguments against the union. Employees can be penalized for skipping, leaving early, speaking, or asking “disruptive” questions. The mildest whiff of dissent counts as “disruption” from a worker, but employers’ statements have to be staggeringly extreme before the NLRB will judge their speech to be inappropriately coercive, rather than acceptably persuasive. For example, a statement such as, “If you workers vote to unionize, I will be so angry I will fire you all,” is an illegal coercive threat, but statements like, “If you workers vote to unionize, I predict that I will have to cut jobs,” often pass muster with the NLRB. The persuasion- versus-coercion distinction is absurd when the “persuader” signs the paycheck. Compare industries covered by the NLRA to those covered by the Railway Labor Act (RLA): The National Mediation Board, which has jurisdiction over transportation industries covered by the RLA (which also includes airlines), considers captive-audience meetings to be inherently coercive and disallows them. Union density is roughly 10 times higher in the railroad and airline industries than in other industries. Coincidence? It seems unlikely.

Unfree Worker Speech Beyond the Workplace

If we accept that the workplace is an anomalous democracy-free zone, then maybe free speech at work doesn’t matter. Workers weren’t going to participate in making business decisions anyway, so it hardly matters what they would say. A zone of voicelessness within the workplace, however, is hard to contain. Lack of voice in the frankly undemocratic workplace radiates outward to erode voice in the purportedly democratic political realm. In his recent book Politics at Work, Alexander Hertel-Fernandez shows that in the past decade, an increasing share of U.S. employers are making increasing demands on employees to engage in political behavior beyond the firm. Having purchased their labor power, many employers—particularly those in heavily regulated industries—see their employees’ time as a resource to be deployed for political ends, in pursuit of electoral and policy outcomes that they believe will favor their business interests. Examples include pressuring their employees to attend rallies, donate to, or volunteer for the employers’ favored candidates, or to contact their representatives to urge policy actions that would benefit their employer.

Employers are politically empowered when unemployment is high. This happens in two ways: 1) The workers who most fear job loss are also most likely to accede to employers’ political pressures, even though they are no more likely to have started out in agreement with their employer’s political positions than are workers with better employment prospects. 2) Members of Congress and their staffers are more responsive to employer-mobilized workers when the unemployment rate in their district is higher.

Perversely, a popular argument made by those in favor of employers’ unlimited access to workers as audiences for their anti-union speech says that workers need access to all relevant viewpoints and information before they settle on their choice of political action. It would be a disservice to workers who will be voting in a representation election, this argument goes, to enforce employer silence and thus keep the employees ignorant of their employer’s perspective. This right to be informed of the employer’s viewpoint is so powerful that it cannot be waived; workers are not deemed able to determine for themselves when they have heard enough to know as much as they need to know. If an informed electorate is desirable, surely information as relevant as the employer’s full financial statement should also be available to workers, yet the people making the informed electorate argument as a justification for captive-audience meetings don’t insist on open books. Nor has the informed electorate argument been extended to require that workers be exposed to pro-union perspectives.

When workers do overcome the barriers to their speech and criticize the governance of their workplace, whether specifically on the topic of unionization or any other area of management activity, they are vulnerable to retaliation. Accounts of such retaliation are legion. Bias is baked into employers’ meting out of consequences. There is a racialized skew in what kinds of behaviors are viewed as “disruptive” in a captive audience member. Any worker could be penalized or fired for speaking up, but workers of color are at even higher risk than white workers. (In the precedent-setting 1968 case Litton Systems, Inc., a Black employee’s dismissal as a result of a question asked in a captive-audience meeting was upheld by the NLRB—he had asked if he could return to his assigned work duties since he had already heard the presentation at an earlier meeting and his attendance left his post unstaffed.) John-Paul Ferguson, a scholar of organizational behavior, finds evidence that employers facing interracial union organizing efforts become especially aggressive, even lawless, in their attempts to prevent union formation. The number of unfair labor practices complaints registered with the NLRB arising from employer suppression of interracial organizing campaigns is greater (in proportion to the number of such campaigns) than the number of complaints arising in less diverse workplaces. Diverse workplaces are slightly more likely to vote for a union if they get to hold an election, but employers’ aggression in diverse workplaces often causes the unionization effort to stall before the election ever happens. Knowing the severity of the potential consequences for speaking, workers often, sensibly, restrain themselves. Capital, of course, is freer.

Loosening Labor’s Tongue

One person’s exercise of free speech often interferes with another’s. Attention is limited; one speaker can simply drown out another by consuming attention. Also, a speaker’s reception is shaped by the context of past communications; if denigrating speech gets aired first, the target of the insults will have a harder time communicating effectively. As in so many other cases, we cannot all enjoy complete liberty at once; some individuals and groups can only gain freedom of speech when others are restrained. We face social choices about who may be restrained, to what extent, by what mechanism, and on what grounds. If we don’t act collectively to coordinate constraints, the most powerful people are free to suppress the speech of the least powerful. The state action doctrine makes a distinction between actions the government takes to restrict speech (which may violate the First Amendment) and actions that private actors take to restrict speech (which do not violate the First Amendment). But the distinction dissolves into illogic when we think about everything the state does to give employers governing authority in their workplaces.

The Shifting Meanings of Free Speech

Late 19th-century “Gilded Age” through the 1920s: Advocates for political action to reduce inequality ran into a judiciary that sided with capital by upholding legislated restrictions on strikes, pickets, and boycotts, or imposing restrictions through court-issued injunctions. Labor partisans promoted an interpretation of free speech that would protect strikes, pickets, and boycotts, but state and federal legislatures and courts did not take up this view.

1930s: Franklin D. Roosevelt was elected as president in 1932 and many “New Deal” legislators were elected to Congress. Initially, the courts threw up roadblocks to implementation of New Deal legislation, but decisions issued in the 1930s began to distinguish property rights from personal rights. In a sudden reversal, judges started ruling that New Deal legislation was constitutional even when imposing contract constraints that would have been disallowed under earlier standards. At the same time, personal liberties that had less to do with property and contracts got greater constitutional protection than before.

1935: The National Labor Relations Act (NLRA) passed. The law protected unionization efforts in the covered industries by, among other provisions, requiring employer neutrality during unionization drives. The law improved conditions for a large share of white workers while reinforcing racial division among workers. Industries in which Black workers were a significant segment of the workforce were excluded from coverage.

1935 to 1947: Workers in the broad swath of industries prioritized in the New Deal, which were generally those with workforces that were primarily male and at least at the periphery of the umbrella of whiteness, had new protections for their speech. Private-sector unionization surged by a factor of more than four, from 3.8 million unionized workers to 14.6 million, reaching 31.8% of the non-farm labor force. Alarmed, employers complained that enforced neutrality during unionization drives violated their First Amendment free speech rights.

1947: The Taft-Hartley amendment to the NLRA eliminated the requirement of employer neutrality in union organizing drives and explicitly granted employers protection for almost all of what they wanted to say on the topic; matters have tilted ever farther in employers’ favor since. Employers have become adept at wielding the First Amendment as a tool to maintain minority rule.

As things stand, the allocation of First Amendment free speech rights is wildly unequal. The prevailing interpretation of personal liberty (including speech) often conflates personal actions with uses of property. In practice, this amounts to a prioritization of property over people: The degree of liberty you enjoy is proportional to the amount of property you can command. The capitalist theory of free speech gives capital super-citizen status, with speech rights that are more expansive than those of ordinary citizens. Workers, meanwhile, are demoted to something less than full citizens, without substantive speech rights. For anyone not rich enough to live on their savings and income from investments, unemployment is a misery. The price of escaping the misery of unemployment is the need to labor for others plus the loss of democratic voice. When the hours of our lives can be sold to become the property of an employer, free speech, too, becomes alienable.

We hold these truths to be self-evident (under 21st century U.S. social relations): That all people of equal property are (roughly) equal (though the social-power-bestowing value of property may be discounted on the basis of race, gender, geography, etc.) and are endowed with certain alienable rights, among these life (which may be sold to capital by the hour), liberty (which is implicitly included in the labor-power sale), and the pursuit of happiness (as capital may direct the pursuits of those whose hours it purchases without deigning to consult workers on what those purposes should be). But what is self-evidently true for now need not always be.

Starbucks baristas spoke despite the pressure managers applied in captive-audience meetings, and some sites unionized. The union wins in Buffalo inspired more organizing drives at Starbucks locations across the country. Warehouse workers in Bessemer spoke despite Amazon’s efforts to “free speech” them into compliance; the union lost the vote the first time, but in retrospect the NLRB ruled that Amazon’s aggression constituted “unfair labor practices.” (In addition to the issue of the mailbox, the NLRB cited the distribution of “Vote No” buttons and flyers while managers watched to see who picked them up and displayed them.) Months later, organizers for the Amazon Labor Union at the Staten Island warehouse crashed captive-audience meetings while they were off the clock to tell those who had been ordered to attend about the union. They assured their startled coworkers that the NLRA made it illegal for Amazon to fire them for speaking in favor of the union as long as they did so on their own time— and more were inspired to join the effort. Remarkably, Amazon, recently chided by the NLRB for their bad behavior in Bessemer, did refrain from firing the meeting crashers. The union won the Staten Island representation election. More locations are bound to follow. Perhaps sensing a change in the national mood, the NLRB’s general counsel Jennifer Abruzzo circulated a memo on April 7 instructing field offices to consider captive-audience meetings to be a violation of the NLRA, despite the years of precedent to the contrary. Each time workers talk union, union talk becomes less unspeakable and the workplace gains more space for democratic voice.

ZOE SHERMAN is an associate professor of economics at Merrimack College and a member of the Dollars & Sense Collective.