On June 5, 1939, the Supreme Court decided Hague v. CIO. This case decided that the streets were public spaces where unions could organize under the principle of the First Amendment, ending decades of corporations using their friends in law enforcement to shut down labor organizing on the street.
Companies and law enforcement had long worked together as part of the state-corporate alliance at the nexus of American anti-unionism. One way to do that was to make speaking on the street illegal when it related to leftist causes. This was at the core of the many IWW free speech fights in the late 1900s and early 1910s. While the extreme measures taken to suppress Wobbly soapbox speakers were not really used by the 1930s, law enforcement still tried to stop street speaking when it offended the city’s business elite. Frances Perkins was stopped from speaking in Homestead, Pennsylvania for instance because law enforcement was in the pocket of U.S. Steel, but then she took it to the post office steps, federal property.
Jersey City, New Jersey was as pro-corporate as any city in the nation. When the nation passed the National Labor Relations Act, workers may have had the right to organize, but they did they have to organize in public spaces? The city’s mayor, the machine boss Frank Hague, determined that they would not, especially if they challenged his power. He had the city pass two ordinances to protect his power. In 1920, a law passed that forced protestors to gain the approval of the chief of police in order to make a political speech. And then in 1930, the city passed an ordinance that gave Hague himself the right to deny political speech if he personally determined it would cause “riots, disturbances or disorderly assemblage.” Hague used this against CIO organizers after that federation broke off from the AFL to organize American labor on an industrial basis. It wasn’t just the CIO that Hague hated. He banned Norman Thomas from giving a campaign speech in the city, for instance.
Hague didn’t exactly hate FDR or the New Deal. He was an Al Smith supporter in 1932 but when Roosevelt was elected, made sure that FDR got big crowds when he was in town and, in return, got his share of patronage. What he hated was anyone challenging his notoriously corrupt political machine that in 1937 had more registered voters than there were people living in the city. Hague called the CIO a bunch of communists and wanted nothing to do with industrial organizing in his town. Hague went full fascist here. At one point, he literally proclaimed publicly, “I am the law!” He mobilized military organizations such as the American Legion in Jersey City to support him. In December 1937, 3,000 veterans, mostly of World War I, packed a meeting to provide Hague support in his ban on “subversive” organizations. Of course, that meeting also featured the city’s corporate leaders, all looking to ban industrial organizing. That the Communist Party was engaging in an investigation of Hague’s legendary corruption as mayor surely also contributed to his outrage.
Naturally enough, the CIO was outraged by this restriction on the right to organize and worked with the American Civil Liberties Union to challenge this in court on both First and Fourteenth Amendment grounds.
The courts consistently ruled in favor of the CIO. Obviously, the law was unconstitutional. But the rationale was not that clear to the Supreme Court, who finally settled the matter in a 5-2 decision. Owen Roberts wrote the decision, using the immunities and privileges clauses of the Fourteenth Amendment to state that public places belonged to citizens and thus must be protected as spaces for public forums. He wrote,
The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.
Roberts was joined by Hugo Black. Harlan Stone wrote a concurrence that the due process clause of the Fourteenth Amendment also provided this protection and thus provided the same protection for non-citizens, which was a major issue still in 1939, as lots of the working class had not yet become citizens fifteen years after the nation shut its doors to immigrants. Stanley Reed joined with Stone. Meanwhile, Charles Evans Hughes wrote his own concurrence. James McReynolds and Pierce Butler typically dissented, while Felix Frankfurter and William O. Douglas did not participate in the case.
In the end, this did not break Hague’s power. That would come in the late 1940s. But it did end one notoriously awful precedent in American history that would open up public spaces for protest in a precedent that continues today, as much as the fascists who run the Republican Party would like to change that.
This is the 358th post in this series. Previous posts are archived here.