How did the struggle for free speech evolve from a fight to protect labor organizers and leftists in their agitation for economic and political reorientation against a repressive state aligned with the interests of property to an argument that corporations were like individuals with a First Amendment right to expression? Laura Weinrib, in this historically grounded legal study, provides the answer as she traces “how the radical vision of civil liberties was born and how, very quickly, it transformed” (1). By considering the decades before World War I and the many participants in the evolution of the civil liberties debate—including conservatives, businesspeople, and the American Bar Association, along with Progressives, Industrial Workers of the World (IWW, also called “Wobblies”), and the American Civil Liberties Union (ACLU)—Weinrib explains the compromise that ultimately led to the “taming” of the earlier radical vision.

Beginning her story in the context of the class war at the turn of the twentieth century enables Weinrib to explain those radical origins. Weinrib draws out the connections between the two, often disparate, fields of labor and legal history as she analyzes familiar stories of labor struggles in the 1900s and 1910s for their impact on the thinking of young radicals such as Roger Baldwin. Coming of age politically in a period when the state and the courts sided against unions and protective legislation in favor of employers and property (e.g., labor injunctions and cases such as Locher v. New York), Baldwin and his cohorts drew from the anti-statist logic of the IWW as they articulated a right of agitation for redistributive ends, and they did so more often through direct action (marches, assemblies and arrests) than through the courts.

Rather than seeing World War I and the First Red Scare as the starting point of the modern civil rights struggle, Weinrib thus positions it at the midpoint of her narrative of a much broader process. She demonstrates, through a fresh interpretation of The State of Tennessee v. John Thomas Scopes trial and other cases during the 1920s, how the leaders of the young ACLU “reoriented their agenda around the importance of personal freedom and the value of democratic debate” (1–2) as a result both of a need to establish legitimacy and attract more supporters and of the changed reality of the decade of “economic prosperity” in which worker militancy was essentially quashed. As Weinrib notes, “Baldwin himself believed that employment and reasonable wages had seduced the workers into complacency,” as he “lamented at mid-decade [that] ‘All they need for contentment is the price of gasoline’” (135). The radical's vision of the right of agitation began to wane in these years as more liberal cohorts in the ACLU (and conservatives outside it) promoted “a concept of civil liberties grounded in the Constitution and enforced by the courts” (2).

In Weinrib's narrative, the 1930s becomes the decade during which the great civil liberties compromise was struck, one that was made possible by the ACLU's transformation of the debate from a fight for the right of agitation against the state to a fight for free speech as a protected First Amendment right. This shift opened the door for more allies in the struggle. Such was the case in the ACLU's fight against Mayor Frank Hague in Jersey City, when the mainstream press and politicians of all stripes came out in favor of the defense of the rights to speak and assemble as core American rights.

However, as Weinrib skillfully shows, many of these new allies came with agendas very different from the ACLU's original radical vision and labor concerns. Right at the moment when the New Deal order ushered in legislative protections for workers in the Wagner Act, and the National Labor Relations Board (NLRB) began to level the playing field to protect their rights to organize and bargain collectively—something the Commission on Industrial Relations had called for two decades earlier—those new political bedfellows began to craft arguments for the freedom of employers against the repressive regulation of that same New Deal state; they trafficked in the new language of First Amendment rights, but did so with echoes of the Lochner era court that not so long ago privileged property over workers to strike down protection for laborers. Now, these conservatives and business interests could claim the right to work and the free speech of employers as civil liberties (most infamously in the Ford case that Weinrib so vividly recounts). And they succeeded; such was the logic behind the employer “protections” embedded in the Taft-Hartley Act of 1947. It was not just the pressures of the Cold War that led to this legislation so hated by labor unions, but also, Weinrib shows, the evolution of civil liberties discourse that was captured by the Right as a most “potent tool” (2). We still live with this legacy today, as the outcome of Citizens United shows.

Weinrib's study is provocative in its assessment of what the consequences of the “taming of free speech” have been, but one wonders if some kind of restoration to the right of agitation for redistribution would alone provide the justice that workers still strive for today? At the same time, one must question the work's implication that additional state intervention is needed to level the playing field, given the dangers inherent in taking that route, dangers that Baldwin and his radical cohorts appreciated before they made the liberal compromise that Weinrib laments.