Abstract

The project seeks to establish a principled basis for empowering organized workers in the private American workplace through an expanded conception of freedom of expression--what is here called effective voice. A critical legal/historical analysis of labor's expression rights concludes that these rights have deteriorated in recent years, largely because of erosion of legal protection. The project thus argues that constitutional principles can and should protect workers' effective voice rights against employer, as well as against government, abridgement. Effective voice covers striking, picketing, boycotting, and collective bargaining, and non-traditional expressive forms as well. The most important of these is broad-spectrum codetermination, which allows workers to exercise control over both daily operations and strategic corporate decision making. Support for protection of effective voice is found in C. Edwin Baker's "liberty theory," which protects speech and expressive conduct that advance individual freedom and choice. Baker's emphasis on two purposes of protected expression--individual self-realization and participation in social change--is especially pertinent. Effective worker voice as understood here embodies precisely these purposes. The liberty theory, however, largely neglects the problem of conflicting rights--specifically workers' expression rights versus employers' property rights. Thus, the project suggests that workers, too, might have property rights that deserve protection. Property, it is argued, is a necessary condition for the effective exercise of expression rights. Moreover, property is not one but many rights, depending on the social function served. Using Baker's analysis of property's multifaceted nature, the project examines five property functions to determine, first, which functions seem to advance individual substantive values and thereby merit constitutional protection, and, second, which are most closely aligned with workers' rights and interests. The five functions discussed are use value, welfare, personhood, allocation, and sovereignty, of which the first three seem most closely linked to constitutional values. Neither the allocation nor the sovereignty function seems to raise constitutional issues. Use value, welfare, and personhood also seem more clearly associated with workers' rights and interests than with employers'. Allocation implicates both. The sovereignty function, which merits little constitutional protection, seems to be associated only with the employer