AP v. NLRB

As part of my New Deal research, I was interested recently to read Associated Press v. NLRB, a 1937 case that upheld the application of the Wagner Act to the Associated Press.  This came down on the same day as a more famous Wagner Act opinion (Jones and Laughlin) and thus gets overshadowed. In a 5-4 vote, the Court rejected the claim that the Associated Press was shielded from the Wagner Act by the First Amendment.

Justice Sutherland (for the Four Horsemen) wrote a sparkling dissent that has lots of quotable lines.  For example:

“No one can read the long history which records the stern and often bloody struggles by which these cardinal rights [in the First Amendment[ were secured, without realizing how necessary it is to preserve them against any infringement, however slight.”

“A little water, trickling here and there through a dam, is a small matter in itself; but it may be a sinister menace to the security of the dam, which those living in the valley below will do well to heed.”

“Freedom is not a mere intellectual abstraction; and it is not merely a word to adorn an oration upon occasions of patriotic rejoicing. It is an intensely practical reality, capable of concrete enjoyment in a multitude of ways day by day.”

“[T]he saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.”

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. Joe says:

    So wrote someone who concurred in the dissent of Near v. Minnesota.

  2. Gerard Magliocca says:

    Indeed, though Sutherland did write the majority opinion in Grosjean.

  3. Joe says:

    I would give him a pass but “however slight” his failings, I had to note it while “yet there was time.”

  4. Shag from Brookline says:

    Let’s consider Justice Sutherland’s:

    “A little water, trickling here and there through a dam, is a small matter in itself; but it may be a sinister menace to the security of the dam, which those living in the valley below will do well to heed.”

    with the dam as Plessy v. Ferguson and Jim Crow discrimination. There were trickles here and there challenging such discrimination even after the Civil War Amendments. Brown v. Bd. of Educ. was perceived as the sinister menace to the security of those in the valley (aka the former slave states) who thought they were secure with that wall of discrimination. If the Civil War Amendments were trickles, perhaps people in the valley should have heeded them to tear down that wall of discrimination that was immoral from the start. So the dam was in trouble and what did the people in the valley do? They came up with the Southern Strategy. Trickle down doesn’t always work the way anticipated. Small trickles against discrimination may result in a torrent if not heeded.