1. Workers and Justices

Between 1936 and 1939, US workers staged 583 sit-down strikes in which they occupied workplaces for at least one day; they also engaged in briefer slow-downs and so-called “quickie” sit-downs.Footnote ¹⁴ During this period of labor militancy, sit-downs grew in popularity: in 1936, they involved 88,000 workers; in 1937, 400,000 workers occupied the General Motors plant in Flint. According to Sidney Fine, the sit-down wave “involved every conceivable type of worker—kitchen and laundry workers in the Israel-Zion Hospital in Brooklyn, pencil makers, janitors, dog catchers, newspaper pressmen, sailors, tobacco workers, Woolworth girls, rug weavers, hotel and restaurant employees, pie bakers, watchmakers, garbage collectors, Western Union messengers, opticians and lumbermen.”Footnote ¹⁵ The largest number took place in the textile industry (80), followed by the automobile industry (45).Footnote ¹⁶ Typically, sit-downers aimed at gaining union recognition where employers had refused to grant collective bargaining rights. Unlike workers elsewhere who sometimes occupied factories as a stepping-stone towards socialization, their US peers—even when communists and socialists—typically envisioned sit-downs as temporary occupations aimed at forcing businesses to recognize and negotiate with labor unions.Footnote ¹⁷

Although the 1935 Wagner Act had guaranteed workers the right to organize unions and engage in collective bargaining, attempts to do so faced an “extraordinary campaign of lawlessness and opposition to the statute” from many businesses.Footnote ¹⁸ Business owners generally viewed the Wagner Act as illegitimate; they did whatever they could to resist unionization. For workers, the sit-down provided an appealing antidote. By occupying the workplace, pro-union workers could circumvent their replacement with “scabs” willing to cross picket lines and keep businesses operating. Many workers also seem to have viewed sit-downs as a legal tool to realize, in opposition to corporate intransigence, the Wagner Act and its promise of collective bargaining. On their view, it was the sit-downers, not the business owners, who were acting with proper respect for legality.Footnote ¹⁹ According to Fine, “since the sit-downers were pursuing objectives sanctioned by law but denied them by their employer, their unconventional behavior was [also] tolerated by large sections of the public.”Footnote ²⁰ Prominent labor lawyers and elected officials interpreted them as, in principle, a legitimate path to union recognition.Footnote ²¹ Business owners, by contrast, considered the sit-downs violent insurrections against private property secretly orchestrated, as King would remind his 1961 UAW audience, by “Reds.”

According to some participants, the sit-downs strengthened worker solidarity; at the very least, sit-downers engaged in highly creative modes of communal self-government and self-regulation.Footnote ²² In a range of industries, and against some of the country's major antiunion firms (e.g., General Motors), the sit-downs resulted in victories. Workers embraced them for the same reason business owners detested them: the sit-downs often worked.

As defenders of the sit-downs noted, labor-related violence in the US usually occurred on picket lines in confrontations between replacement workers and state officials or private security forces. In principle, sit-down strikes could be expected to reduce such violence; businesses might hesitate before calling in the police or private security guards when doing so risked harming property. The sit-downers were by no means committed to principled nonviolence, an observation immediately made even by those, including the radical pacifist and socialist A. J. Muste, who embraced their cause.Footnote ²³ When police or national guardsmen tried to remove them, at Flint and elsewhere, workers fiercely resisted. Nonetheless, in the massive sit-down wave of 1936–38, “no deaths and little property damage” occurred.Footnote ²⁴ Though vandalism and violence occurred, some evidence suggests that sit-downers conscientiously minimized damage to what they revealingly described as “their” workplaces. On one interpretation advanced by sit-down defenders, participants sometimes endorsed an inchoate yet consequential idea of “property” in their jobs and fair compensation for their work: property rights to a job and humane work conditions deserved recognition alongside capital's traditional prerogatives.Footnote ²⁵

The sit-down's popularity quickly placed it in the crosshairs of businesses hoping to roll back labor's New Deal achievements. This part of the story is also complicated. Yet Fansteel (1939) constituted the successful culmination—and most consequential legal accomplishment—of a concerted corporate counteroffensive. Fansteel neutralized the sit-down and decisively reshaped US labor relations for decades to come.

The Fansteel Corp. case was opportune for antiunion businesses and those on the US Supreme Court who sympathized with them. It concerned a 1938 sit-down strike that had involved fierce battles and property damage. According to the Court's majority, the NLRB had been correct in its determination that Fansteel had regularly engaged in illegal antiunion practices as defined by the Wagner Act. Nonetheless, accepting the NLRB's demand that the company reinstate strikers who had engaged in or abetted sit-down activities, Fansteel's representatives claimed to the Court, would amount to condoning “lynch law,” a view with which the Court majority ultimately sympathized.Footnote ²⁶ Many sit-downers had paid fines and faced legal penalties for their actions; the previous NLRB decision merely challenged the right of an employer to deny sit-downers reinstatement. According to the Court majority, however, the employer was free to do so. The Court's correction to the NLRB order narrowly delimited the scope of responsible, legally acceptable labor activities by providing a wide berth to business owners to fire and rehire sit-downers.Footnote ²⁷ Activities for which militant workers had previously claimed the mantle of legality were rendered, for all intents and purposes, illegal and massively risky. In the aftermath of Fansteel, sit-downers faced not only the prospect of civil and criminal charges (e.g., disorderly conduct, trespassing, disturbing the peace) but also job losses.

The majority decision, penned by Chief Justice Charles Evan Hughes, reproduced antiunion business opinion. Ignoring the generally nonviolent facts of most sit-downs, Hughes tarred the workers with accusations of lawlessness, vandalism, and violence: theirs was a seizure of an industrial plant that violated rudimentary protections for private property. Hughes conflated property damage with violence against persons; he also claimed that the occupation was “not essentially different from an assault upon the officers of an employing company.”Footnote ²⁸ Even a temporary seizure of the owner's property could not, in principle, be distinguished from a physical assault on management. The sit-down constituted “an illegal seizure of . . . buildings in order to prevent their use by the employer in a lawful manner and thus by acts of force and violence to compel the employer to submit.”Footnote ²⁹

In a pointed dissent, Justice Stanley Reed took Hughes and the Court majority to task for their failure to offer a sufficiently “objective appraisal.”Footnote ³⁰ Reed presciently predicted that the majority ruling would undermine key protections outlined in the Wagner Act by giving employers discretion to fire workers in the context of labor disputes in which “friction easily engendered” would inevitably “give rise to conduct, from nose-thumbing to sabotage, which will [now] give fair occasion” for employers to discharge workers.Footnote ³¹ Justice Hugo Black, who would later play a very different role in the Supreme Court's sit-in cases, joined Reed in a concurrence. Despite their dissent, the Fansteel ruling held: massive legal and practical impediments to workers hoping to engage in sit-downs became a centerpiece of US labor relations.Footnote ³²

2. Students and Mentors

Ignited by four college students who politely requested service at a segregated Greensboro, NC, Woolworth lunch counter on February 1, 1960, copycat sit-ins—involving approximately seven thousand mostly student participants in over one hundred localities—soon rippled across the South.Footnote ³³ What we have come to dub “the sit-in movement” is now commonly viewed as crucial to the revitalization of a civil rights struggle that some of its leading figures feared had become perilously ineffective by 1959. Although theirs was not the first lunch counter sit-in targeting racism, the Greensboro Four immediately grabbed the national media spotlight, launching a wave of similar protests. The sit-in movement seemed to many observers to have come out of thin air. Yet, as King accurately observed in in his 1961 Detroit speech, its roots could be traced to the 1930s sit-downs.

Beginning with the Montgomery Bus Boycotts, King had been tutored in nonviolent methods by Bayard Rustin and Glenn Smiley, veteran figures in the Fellowship of Reconciliation (FOR), an organization that played a decisive role in transmitting labor's militant tactics to the black freedom struggle.Footnote ³⁴ King also had cordial ties to Muste, one of FOR's founders. To better understand the ties between the sit-downs and the civil rights movements, we need to turn back the clock about two decades.

The Fansteel ruling notwithstanding, the sit-downs mesmerized a generation of pacifist and (often) social democratic or socialist activists, many affiliated with the left-wing, religiously oriented FOR and influenced by Muste, its leading figure. Although irritated by the worker sit-downs’ lack of a strict commitment to nonviolence, Muste tried to impress on his colleagues their tactical advantages as early as 1937.Footnote ³⁵ Emerging directly out of FOR, a closely related organization, the Committee (later: Congress) for Racial Equality (CORE), and its founders, Rustin and James Farmer, were among the first to apply sit-down techniques in 1943 wartime Chicago to an upscale restaurant, Stoner's, that regularly refused service to blacks. An interracial organization taking direct aim at racism, CORE and its founders shared Muste's admiration for the Congress of Industrial Organizations (CIO) “industrial unions and the direct-action techniques of the sit-down strikers.”Footnote ³⁶ Scattered occupations targeting segregation and similarly racist practices had taken place prior to the labor sit-downs and World War II.Footnote ³⁷ However, there is no clear evidence that FOR or CORE activists were aware of such forerunners.

In contrast, Muste, Farmer, Rustin, and their colleagues were not only versed in the worker sit-downs; they also tried to figure out how they could be tweaked according to nonviolent and Gandhian lines and redeployed against racism.Footnote ³⁸ Given the success of the business community and the Supreme Court in linking the sit-downs to violence, the activists’ embrace of Gandhi possessed clear strategic as well as moral advantages. A major intellectual inspiration for their efforts was Krishnalal Shridharani's War without Violence: A Study of Gandhi's Method and Its Accomplishment (1939), a revised version of a Columbia University dissertation mentored by the sociologist Robert Lynd. Shridharani's book served as a handbook for early members of FOR and CORE and countless later civil rights activists. Farmer and Rustin appear to have known and personally interacted with Shridharani.Footnote ³⁹ Describing sit-downs as the “most dramatic way of influencing public opinion both when the effort is successful and when it is crushed,” Shridharani provided them with Gandhian credentials.Footnote ⁴⁰ Farmer would go on to serve as CORE National Director, a capacity in which he mentored young activists committed to nonviolent direct action, just as the civil rights sit-ins swept the South.

Another link between the 1930s labor and 1960s civil rights movement, A. Philip Randolph, worked alongside Muste and Rustin in 1941 in the March on Washington Movement and its push for the federal government to desegregate the military and guarantee equal employment.Footnote ⁴¹ Randolph shared their enthusiasm for borrowing from labor's militant practices, as did Pauli Murray, a Muste associate who deployed sit-down techniques to desegregate restaurants during World War II in Washington, DC. She later acknowledged the inspirational role the 1937 automobile sit-down strikes had played for her and other activists.Footnote ⁴²

In lively political exchanges among activists and sympathetic intellectuals beginning in the 1940s, the terms “sit-down,” “sit-in,” “civil disobedience,” and “direct action” were employed more or less interchangeably.Footnote ⁴³ Even in the early ’60s, sit-ins were often described, by sympathizers and opponents, as sit-downs. This terminological overlap soon became a problem for the civil rights movement as it struggled to differentiate its efforts from worker sit-downs viewed by significant swaths of public opinion—and state officials and judges—as dangerously radical and thus politically and legally out of bounds. In the context of an anticommunist political climate, it would become imperative for the civil rights movement to distinguish its efforts from those of the 1930s sit-downers.

The long story of how these modest initial wartime protests culminated in the revitalization of the civil rights movement and related features—concerning, for example, economic boycotts as a political tool—cannot be recounted here. Yet there is no question that FOR and its sibling organization CORE served as key transmission belts between the labor radicalism of the ’30s and the 1960s sit-in wave. James Lawson (born 1928), for example, was too young to have been directly influenced by the worker sit-downs. Yet as a longstanding FOR activist, he imbibed their lessons. During 1958 and 1959 he traveled throughout the South, offering workshops on nonviolent direct action “in the months leading up to the sit-down revolution of 1960.”Footnote ⁴⁴ A friend and close ally of King's beginning in 1957, Lawson was the same age and shared with King overlapping theological and political interests. While at Vanderbilt Divinity School Lawson took over a weekly workshop—previously coordinated by Smiley—that ultimately triggered the important Nashville lunch counter sit-ins.Footnote ⁴⁵

Even if the lunch counter sit-ins appeared spontaneous, the ground had been well prepared by Lawson and others in FOR and CORE. The latter played a key role in organizing sit-ins in Miami in the summer of 1959, an immediate warm-up for the 1960 sit-in wave with which some of its leading activists seem to have been familiar.Footnote ⁴⁶ When the student sit-in movement took off, CORE published pamphlets not only publicizing its efforts but also aiming to provide practical guidance to students.Footnote ⁴⁷ Joseph Kip Kosek correctly points out that the “sit-ins that began in 1960 used the same method that CORE had employed as early as World War II.”Footnote ⁴⁸ The direct inspiration for those earlier sit-ins was the 1930s worker sit-downs.

Given this prehistory, the parallels between the two protest waves should hardly come as a surprise. Of course, the 1960s sit-in activists followed, as FOR and CORE had recommended, a more nonviolent, sometimes Gandhian template. When arrested and removed by the police or other officials, the sit-inners did not, in contrast to some earlier working-class sit-downers, resist. In both movements, however, the resulting violence or vandalism usually occurred in the context of harassment and violent assaults against activists.Footnote ⁴⁹ Both the sit-downers and later sit-inners were frustrated by what they viewed as the insufficient efforts of mainstream labor (i.e., the American Federation of Labor) and civil rights organizations (NAACP), respectively. Both organizations initially greeted the new militants with skepticism and sometimes open hostility.

Just as the sit-downers interpreted their acts as congruent with federal labor legislation whose implementation had been stymied by intransigent businesses, so were the sit-inners motivated partly by a sense that the promise of Brown v. Board of Education (1954) had been unfairly blocked by southern segregationists. Christopher W. Schmidt reports that many of them were frustrated with the limited progress made towards desegregation since Brown.Footnote ⁵⁰ In 1960, as during the late 1930s, activists interpreted their temporary occupations of private property as, in principle, legally justified: those who resisted the implementation of Brown were the real lawbreakers. Sit-inners expressed disdain for what they viewed as the NAACP's excessively legalistic approach to social change and rejected efforts to limit their protests to carefully selected “test cases” for NAACP lawyers to use to undermine segregation. Famously, they opted for “jail no bail” rather than follow the NAACP's initial advice to pay bail, go home, and leave the rest to the lawyers and the courts.Footnote ⁵¹ Yet, again like the worker sit-downers, they envisioned their protests as a way to secure the belated enforcement of existing legal norms that had been illegitimately violated.

Both the sit-downers and sit-inners occupied private property. However, neither aimed at a frontal assault on American capitalism, though both challenged traditional prerogatives of property ownership, i.e., the business owner's right to refuse recognition to labor unions or to discriminate against racial minorities. If only implicitly, they pushed back against absolutist ideas about property. Admittedly, the labor sit-downs may have posed a more far-reaching challenge to economic injustice and material inequality than the lunch counter sit-ins; the latter arguably rested on some implicit idea of a “consumer's republic”Footnote ⁵² in which the right to spend one's money as one likes becomes central to “liberty.”Footnote ⁵³ Even with that caveat, one should not overstate the differences. Both sit-downers and sit-inners were motivated by a keen sense that fundamental denials of legitimate rights by business owners invited unacceptable forms of degradation and humiliation.Footnote ⁵⁴

Many sit-downers sought union rights chiefly to gain a bigger piece of the economic pie. Lunch counter sit-inners, at first glance, wanted nothing more than for blacks to have the same rights as whites to participate in the consumer marketplace. However, both movements raised broader questions about the meaning of political and social citizenship amid egregious inequalities and injustices. For organized labor, the sit-down aimed at guaranteeing employees a say in the workplace and government, along with a measure of respect in a society that worshiped hard work but tended to look down at those who in fact worked hardest. As King analogously observed, the sit-ins “represent[ed] more than a demand for service; they represent[ed] a demand for respect.”Footnote ⁵⁵ Their protests “drew upon one of the most foundational of constitutional principles—the right to equal protection of the law.”Footnote ⁵⁶ Despite the sit-inners’ differences with the NAACP lawyers, the students accepted the LDF's efforts on their behalf: on a “day-to-day basis the civil rights lawyer was crucial to the movement of direct action advocates.”Footnote ⁵⁷ Essential to this alliance was that the lawyers, as we will see, were able to translate the sit-inners’ political aims into the requisite legal and constitutional terms.

By treating the worker sit-downs as essentially violent attacks on property and its owners, the Fansteel ruling had not only undermined labor's organizational prowess but also marginalized the larger questions about citizenship they raised. The sit-inners, in striking contrast, garnered a more favorable Court response. In a series of sympathetic rulings made on narrow legal grounds, the Warren Court discounted Fansteel's relevance to the civil rights sit-ins.Footnote ⁵⁸ One source of this shift was that both the activists and their lawyers—in particular, the NAACP LDF—depicted the sit-ins as a cry for equal civil and political rights, a position that resonated with the Court majority and many white Americans. The sit-ins, on this view, did not aim at fundamentally challenging the economic order or undermining private property. By marginalizing parallels to the worker sit-downs, the NAACP LDF gained victories in the courtroom but at the cost of sidelining questions about economic justice.

3. Segregationists and Jurists

If as respectable a figure as former president Truman could discredit the sit-ins by recalling their links to the 1930s labor sit-downs, segregationists thought it fair game to do so as well. Segregationists regularly exploited the terminological ambiguities: southern citizens’ councils dubbed the student sit-ins “seditious sit-downs” as a way of tarring them with the specter of radicalism and claiming that they posed a principled threat to private property.Footnote ⁵⁹ Despite the sit-ins’ nonviolent credentials and little evidence of communist influence, tying them to the worker sit-downs of the 1930s was a smart strategy for segregationists. Crucially, it allowed white supremacists to reposition themselves as defenders of individual property rights. As the Virginia Commission on Constitutional Government announced, “the conflict here is between one individual and another individual—between the rights of the customer and the rights of the restaurateur. . . . The right of a property owner to peaceful control and management of his property surely ranks among the most vital human rights or civil rights that the American citizen enjoys. . . . It is one of the great individual rights upon which a free society rests.”Footnote ⁶⁰ Thus, the Fourteenth Amendment's prohibition on state action that deprived citizens of equal protection of the law was moot since sit-ins amounted to a clear-cut challenge to the private restaurant or lunch counter owner's constitutionally secure right to serve—and discriminate against—whomever he or she deemed appropriate. Like the sit-down strikes of the 1930s, sit-inners were attacking sacrosanct property rights: if they succeeded in reshaping policy and jurisprudence, their actions invited far-reaching government restrictions on property and, prospectively, socialism or communism.Footnote ⁶¹ In this vein, North Carolina officials noted in a brief for a US Supreme Court case focused on a 1962 Durham sit-in, the protests had opened the door to “the abridgement of property” and a “completely socialized state.”Footnote ⁶²

In response to this genre of criticism, the Southern Regional Council, an organization sympathetic to the student protesters, urged them to abandon any use of the term “sit-down” in favor of “sit-in” as a way to differentiate their efforts from those of 1930s militants.Footnote ⁶³ Despite such efforts, the Fansteel ruling soon served as a point of reference for segregationists. The Supreme Court had, after all, conflated the sit-downs with violent assaults against management and its prerogatives. Similarly, those opposing the 1960 sit-ins characterized them as violent mob rule that unjustly targeted lunch counter owners and their property rights.Footnote ⁶⁴ In sit-in cases that made their way into the courts, segregation's defenders frequently cited Fansteel. In Garner v. Louisiana (1961), a case involving Baton Rouge student sit-inners charged and found guilty of disturbing the peace, the NAACP LDF appealed the Louisiana Supreme Court's denial of relief to the protesters. Louisiana officials described the sit-in as “an illegal seizure of the property of another which this Court has long held unlawful,” directly “comparable to the action of employees in the ‘sit-down strikes’ of the late 1930s.”Footnote ⁶⁵ The purpose of the sit-ins was “to coerce the lawful owner of the property, by refusing to give up possession of his property, into what the ‘sit-downers’ or ‘sit-inners’ wanted him to do.” The sit-inners sought to “club such owner into submission.”Footnote ⁶⁶ In oral arguments before the court, Louisiana officials asserted that sit-ins had regularly resulted in fist fights and thus were effectively riots in the making.Footnote ⁶⁷ In another Louisiana case involving a New Orleans sit-in, Lombard v. Louisiana (1963), state officials argued that Fansteel was pertinent since protesters had illegally occupied a chain store lunch counter, an act equivalent to the seizure of Fansteel buildings that had prevented its “use by the employer in a lawful manner and to compel the employer by force to submit to their demands.”Footnote ⁶⁸

Shuttlesworth v. Birmingham (1962) concerned charges against the civil rights leader Revered Fred Shuttlesworth for aiding and abetting sit-inners subsequently charged with criminal trespassing. According to Alabama officials, the pertinent constitutional precedent was Fansteel, which “seems so patently applicable [to the present case] as to warrant no argument . . . except to say that nothing has heretofore been before the courts [that] offers a better parallel.”Footnote ⁶⁹ Because of the sit-down's illegality, and the fact that Shuttlesworth understood what he was advocating, he had incited criminal acts. In Peterson v. Greenville (1962), the South Carolina city's legal representatives equated a recent sit-in with a “silent and forceful occupation” that “smacks of coercion. It is a demonstration of force, not reason,” and thus unacceptable as found in Fansteel. Footnote ⁷⁰ In another case involving a sit-in by teenagers at a segregated playground in Savannah, Georgia authorities associated “taking over the playground” with the sit-down strikes. Thus, they concluded, the reasoning employed by the justices in Fansteel condemning such protests “expresses the feeling that is applicable in this case.”Footnote ⁷¹

Such legal claims notwithstanding, the segregationist redeployment of Fansteel made little headway with the justices, despite the fact that the sit-in cases frequently posed tough questions about property rights; this seems to have been one reason why the LDF—and especially Thurgood Marshall—had initially been hesitant to take up the students’ cause.Footnote ⁷² In a complicated series of rulings, an increasingly divided Court sided with elements of the LDF strategy, as masterminded by Jack Greenberg, Marshall's successor as LDF director counsel. First, in defending the sit-inners the LDF exploited a range of legal technicalities and emphasized the unacceptable vagueness of the statutes used to charge them. Second, Greenberg and his colleagues highlighted the sit-inners’ nonviolence to counter legal charges (e.g., disturbing the peace) that linked them to mob violence. Third, when state or local segregation laws were deployed against sit-inners, the LDF appealed to the Fourteenth Amendment's equal protection clause and its prohibition on discriminatory state action. Fourth (and most controversially), even when nothing more than a private business owner's right to discriminate appeared to be at stake, the LDF lawyers sought to prove that such incidents implied some state intervention and thus fell under the auspices of the Fourteenth Amendment.Footnote ⁷³ As Greenberg later asked, “to be realistic, weren't the police, courts, and prison systems in the sit-in cases enforcing private discrimination” even when private businesses simply refused service to blacks?Footnote ⁷⁴ When the authorities enforced or policed the property owner's “individual” discriminatory preferences, the Fourteenth Amendment's equal protection clause still obtained.

The Supreme Court never provided the LDF with a broad constitutional ruling categorically prohibiting discrimination by property owners. Nevertheless, the sit-inners’ political—and intertwined courtroom—challenges paved the way for the Civil Rights Act of 1964 and its landmark public accommodations provisions, which banned discrimination by private businesses serving the public.Footnote ⁷⁵ I focus on a consequential set of arguments LDF lawyers employed to neuter their opponents’ appeals to Fansteel. Their account of the sit-ins would soon gain the imprimatur of liberal philosophers paying careful attention to the protests.

In Shuttlesworth Greenberg and the LDF team directly took on the legacy of Fansteel. They admitted that the analogy to worker sit-downs “may very well be true,” before adding the caveat that “sit-down demonstrations have taken many forms.” Not all sit-down (or -in) protests were equivalent: the civil rights sit-ins were different from worker sit-downs. One distinction was that the Birmingham sit-inners whom Reverend Shuttlesworth had encouraged “did not violate any valid ordinance” since the local statute they had broken required racial segregation and was thus “unconstitutional on its face.”Footnote ⁷⁶ In contrast, LDF lawyers implied, the labor sit-downers had broken some valid statutes.

More significantly, at stake in this and related sit-in cases were basic rights to free expression guaranteed by the Fourteenth Amendment. The LDF lawyers pointed out in Barr v. Columbia (1961) that precedent supported the view that “the free expression issue is not resolved merely by the fact that private property rights are involved.”Footnote ⁷⁷ In making this claim, Greenberg and his colleagues drew on one of the Court's more conservative members, Justice Harlan, whose concurring opinion in Garner v. Louisiana asserted that the sit-inners warranted protection under long-standing free speech rights.Footnote ⁷⁸ According to the LDF, the Fourteenth Amendment and subsequent constitutional rulings did not secure a right “to free expression on private property to all cases or circumstances.”Footnote ⁷⁹ Nevertheless, under some circumstances, and depending on the specific “nature of the property rights asserted,” the Supreme Court had sided with parties, e.g., “Jehovah's Witnesses who went upon the privately owned streets of a company town to proselytize for their faith,” who employed rights to free expression even when seemingly in conflict with property rights. Free speech was deserving of protection even in contexts where affected property owners opposed it; whether its use was constitutionally permissible required “consideration of the totality of the circumstances.”Footnote ⁸⁰ Restrictions on free expression were legitimate only where imminent threats to public order existed; southern officials had failed to demonstrate the existence of such dangers.Footnote ⁸¹ In effect, the sit-inners were simply participating in the “free trade in ideas” essential to democracy.Footnote ⁸² In Avent v. North Carolina (1962) the LDF lawyers noted: “What has become known as a ‘sit in’ is a . . . well understood symbol, a meaningful method of communication and protest.”Footnote ⁸³

This interpretation of the sit-ins as exemplars of free expression allowed the LDF to tap key Court decisions that had favored labor unions. Not Fansteel, but other judicial precedents protecting organized labor's right to organize and picket peacefully, were relevant. In Republic Aviation Corp. v. NLRB (1945), the Court had upheld an NLRB ruling that found employer regulations prohibiting union solicitation on company grounds to be illegal.Footnote ⁸⁴ In that case, the LDF lawyers recalled in Boynton v. Virginia (1960), the Supreme Court had determined that the employee's right to organize had to be weighed against “the employer's right to maintain discipline.”Footnote ⁸⁵ Even if identifying the proper constitutional balance posed complicated questions, they argued, property rights did not trump free speech. The sit-ins, on this view, were analogous to peaceful, responsible union organizing tactics the Court had previously protected. Although the LDF lawyers said almost nothing about the realities of the worker sit-downs or the complexities of Fansteel, their main point was that the nonviolent sit-ins should be viewed as constitutionally protected free speech, not violent attempts to seize private property. In the sit-ins, no “essential property right . . . is infringed.”Footnote ⁸⁶ Pace critics, the sit-ins were not coercive assaults on property but communicative acts directed at public opinion.

In contradistinction to King's UAW speech, the LDF lawyers drew no parallels between the worker sit-downs and civil rights sit-ins: doing so made no sense in light of Fansteel. Although the lawyers may have overstated the contrasts, they did identify one key difference. Sit-inners were seeking equal civil and political liberties: placing their protests under the rubric of the Fourteenth Amendment's free expression protections meshed well with that goal. Even if the sit-downs raised broader questions about citizenship, their efforts focused chiefly on strengthening organized labor as a check on business's privileged status. Theirs was not primarily an appeal to basic liberal ideals of political and legal equality.

The LDF's politically and legally savvy interpretation of the sit-ins failed to persuade every justice. Justice Black, despite his earlier dissenting position on Fansteel, emerged as one of the sit-inners’ harshest critics, reiterating in a forceful dissent to Bell v. Maryland (1964) the hostile view commonplace among segregationists that the sit-ins constituted violent incidents of mob rule aimed at decimating property rights.Footnote ⁸⁷ Nor did the strategy convince southerners who responded to the path-breaking Civil Rights Act by doing whatever they could to minimize its scope.

4. John Rawls: Seeing Like Some Activists?

As Katrina Forrester has shown, liberal philosophers closely followed the sit-ins as well as the Supreme Court's response.Footnote ⁸⁸ For liberals in the late 1950s and early ’60s, what transpired in the Supreme Court “determined what counted as a political problem worthy of philosophical focus.”Footnote ⁸⁹ Hugo Bedau organized a panel devoted to civil disobedience at the 1961 meeting of the American Philosophical Association and would go on to write extensively about it and edit a “reader” widely used in college classrooms.Footnote ⁹⁰ John Rawls sympathized with the sit-inners and soon began outlining his own theory, taking a first stab at a “Law and Philosophy” symposium in New York.Footnote ⁹¹ A Theory of Justice would offer the most developed version of his defense. In contrast to Justice Black and southern segregationists, Rawls and others appear to have been persuaded by the LDF's courtroom defense. At the very least, liberal ideas about civil disobedience reproduced some of its core traits. In the process, liberals sidelined the sit-inners’ debts to the worker sit-downers along with questions about material inequality and economic justice that the latter had pointedly raised.

Because of his massive influence and canonical status, I focus on Rawls. He defined civil disobedience as lawbreaking that was a “public, nonviolent, conscientious yet political act.”Footnote ⁹² Its “civil” character stemmed especially from its noncoercive and nonviolent contours. Civil disobedients should be expected to provide evidence of respect for or fidelity to law, which in a basically liberal order meshed with the community's shared sense of political justice, as ensconced in the constitution and its core principles. Typically, demonstrating such fidelity meant accepting legal penalties, e.g., appearing in court and facing the prospect of sanctions. This is what Rawls discovered among the sit-inners. As he noted in unpublished remarks, their

With some parallels to the views of some sit-inners and certainly the LDF lawyers, Rawls thought it made sense to describe civil disobedience as politically motivated illegality that evinced fidelity to the US Constitution and its “higher laws.” He plausibly interpreted the sit-inners as endeavoring to tap the Constitution to transform the American polity into a more just political order. Rawls did not here describe the United States as a “nearly just” society; the Constitution was just—and thus a launching pad for reform. As he later formulated that intuition in A Theory of Justice, civil disobedience should entail “disobedience to law within the limits of fidelity to law, although it is at the outer edge thereof.”Footnote ⁹⁴

A Theory of Justice also noted that civil disobedience might include scenarios where protesters faced “some uncertainty as to whether their” actions “will be held illegal.” They were “not simply presenting a test case for a constitutional decision: they are prepared to oppose the statute” and might refuse to desist in their protests even “should the courts eventually disagree with them.”Footnote ⁹⁵ This is how some sit-inners appear to have interpreted their activities: while relying on LDF legal support, they opposed attempts to restrict protests to a handful of carefully selected “test cases” to be tried in courts. As we have seen, the LDF eventually acknowledged the virtues of a mass sit-in movement.Footnote ⁹⁶

Rawls tracked the LDF interpretation in two additional respects. First, he argued that civil disobedience was best conceived as akin to free expression: “One may compare it to public speech, and being a form of address, an expression of profound and conscientious political conviction, it takes place in the public forum.”Footnote ⁹⁷ An appeal to a shared sense of justice and common constitutional principles, civil disobedience represented a noncoercive and communicative act intended to sway or persuade others for the sake of advancing political reform. Rawls offered a philosophical version of the argument made in court on the activists’ behalf by the LDF that their protests were exemplars of free expression. He never posited a legal right to civil disobedience; by definition it entailed some political act akin to public speech yet “thought to be contrary to law.”Footnote ⁹⁸ In some contrast, the LDF lawyers regularly challenged the alleged illegality of their plaintiffs’ acts. Yet they never defended a general right to break the law on political grounds either, a position that would have immediately discredited them before the nation's highest court.

Second, Rawls disconnected the civil rights sit-ins from their prehistory in the labor struggles of the 1930s. Though a left-liberal with egalitarian economic views, he unhooked issues of material inequality from civil disobedience, which should generally be restricted “to serious infringements of the first principle of justice, the principle of equal liberty,” and thus to matters concerning basic civil and political liberties, not economic justice.Footnote ⁹⁹ Rawls's position was a complex one, but in part he doubted that the intricacies of social and economic policy were consistent with formulating clear public appeals based on some shared sense of justice. Civil disobedience was justifiable when focused on violations of civil and political but not social or economic rights. Rawls provided a theoretical grounding for civil disobedience as primarily political but not economic—a position with some clear affinities to the LDF legal defense, even if differences remained.

The LDF lawyers, for example, were cognizant of the threats posed by the Fansteel precedent and likely familiar with some of the 1930s prehistory. In contrast, there is no evidence that Rawls was similarly informed or interested in the sit-downs: he simply presupposed their theoretical irrelevance. Even if this move paralleled a broader shift in postwar US liberalism from questions of economic equity to those concerning political and legal inclusion, it was soon widely—and accurately—viewed as marginalizing politically motivated lawbreaking aimed at changing property relations or generating redistribution.Footnote ¹⁰⁰ It sidelined thorny questions about economically oriented protests or those resulting in property damage, which 1960s liberals usually viewed as incongruent with justifiable civil disobedience.Footnote ¹⁰¹ It also meant that the influential liberal debate about civil disobedience—and its cousin, conscientious objection—had nothing to say about worker sit-downs and factory occupations.

The outlines of my argument will seem familiar to those who have rightly emphasized the early civil rights movement's impact on Rawls and other liberals. Yet some necessary refinements can now be made. The tendency in recent literature to interpret Rawls and his theory as badly out of step with the civil rights movement sometimes goes too far: his account of civil disobedience built on a credible interpretation of both the sit-in movement and the LDF legal strategy, which selectively highlighted some of the movement's traits to win courtroom cases.Footnote ¹⁰² Even if Rawls sanitized the messier and more radical features of the 1960 black freedom struggle, he reproduced key traits of an influential, politically astute strategy that was pursued by some early civil rights movement participants and especially their lawyers.Footnote ¹⁰³ Participants in the struggle for desegregation understandably thought it smart to differentiate the 1960 sit-ins from earlier worker sit-downs, in part to protect student lunch counter sit-inners from the ominous legal specter of Fansteel, but also because their protests could be viewed as more strictly nonviolent and focused on basic civil and political rights.

If we find Rawls guilty of implicitly downplaying the civil rights movement's broader political and economic aspirations, we need to level the same charge against the LDF and some movement activists as well. Even among sympathizers aware of the sit-inners’ debts to the 1930s sit-downs, many appreciated that it was sometimes politically and legally opportune to deemphasize that prehistory. Rawls's account of civil disobedience provided a philosophical crystallization of that political move. That crystallization was anything but “abstract” or disconnected from political life; it mirrored one of the movement's main strategies.

Whatever its benefits, this disconnection of the sit-ins from the legacy of the worker sit-downs came at a price. Most obviously, it risked marginalizing calls within the civil rights movement for far-reaching economic reform. Even today, Americans celebrate King the supposedly saintly civil rights leader, not King the radical critic of American capitalism. Even as King embraced the sit-inners and worked with the LDF lawyers, he recognized the limitations of interpreting their protests exclusively as aiming to realize equal protection under the law. Sometimes he clearly embraced a more expansive and potentially radical view of civil disobedience than that suggested either by the LDF legal strategy or by liberal philosophers. During a March 18, 1968, speech at the annual convention of the American Federation of State, County, and Municipal Employees (AFSCME), King declared that “our struggle is for genuine equality, which means economic equality. For we now know it that it isn't enough to integrate lunch counters. What does it profit a man to be able to eat at an integrated lunch counter if he doesn't earn enough money to buy a hamburger and a cup of coffee?”Footnote ¹⁰⁴ For King, inclusion on equal terms in the US polity was a first step towards freedom; the second would entail changes to the existing system of private property. Unlike the LDF lawyers making their case before a divided Supreme Court, King reminded audiences at the UAW convention of the links between the sit-inners and sit-downers, recognizing that the sit-downers had raised questions about economic injustice and material inequality that the civil rights movement would need to take up.

More remains to be said about the complex relationship between King and both the LDF strategy and related liberal theories. Yet Alex Gourevitch goes too far when he reinterprets King as a proponent not of civil but instead radical disobedience premised on challenging the authority of the legal order as a whole.Footnote ¹⁰⁵ Whatever King's disagreements with LDF lawyers, he shared their general view that “the magnificent words” of the Declaration of Independence and US Constitution offered “a promissory note to which every American was to fall heir.”Footnote ¹⁰⁶ King's speeches and writings are replete with legal and constitutional appeals, not because he sought modest reforms along the lines advocated by Rawls and other liberals, but because the US Constitution offered, in his eyes, a dynamic starting point for potentially far-reaching radical as well as economic transformation. Those engaging in nonviolent direct action, he believed, could show the “very highest respect for the law” by creatively tapping and sometimes reinterpreting those legal sources.Footnote ¹⁰⁷

We have already observed what the disconnect from the sit-downs meant for political theory and philosophy. Rawls restricted justifiable civil disobedience to illegal protests that were public and nonviolent, noncoercive, communicative or deliberative, directed at political but not economic injustices, and expected to demonstrate fidelity to law. He and other liberals suppressed the hidden origins, in the labor upheavals of the 1930s, of the sit-ins and the theories of civil disobedience inspired by them. That neglect contributed to some theoretical lacunae, e.g., civil disobedience as a possible tool against economic injustice, or the potentially constructive political role of “violent” property damage inconsistent with strict notions of nonviolence.

5. Back to the Sit-Downs?

The 1930s sit-downs did not fully disappear from the philosophical debate, however. To challenge liberalism's restrictive account of civil disobedience, Michael Walzer—then a young political theorist based, like Rawls, at Harvard—recalled the UAW sit-down strikes of 1936–37. Walzer had covered the 1960 sit-ins for the social democratic Dissent.Footnote ¹⁰⁸ His astute 1969 essay “Civil Disobedience and Corporate Authority” suggests how the sit-downs might justify a more expansive understanding of civil disobedience; this discussion poses some still pertinent questions. Although Pineda groups Walzer with Rawls and other liberals accused of harnessing the messy realities of the civil rights struggle to a truncated liberalism,Footnote ¹⁰⁹ Walzer argued that the UAW sit-downs, their coercive and sometimes violent contours notwithstanding, might be described as an exemplar of an alternative, revolutionary type of identifiably democratic civil disobedience potentially legitimate in some institutional contexts. Mainstream liberal accounts neglected the harsh realities of autocratic corporate authority in otherwise liberal states. Crucially, liberal theories presupposed a basically democratic polity. Yet corporate decision-making structures were anything but democratic. Recalling the despotic conditions workers faced at General Motors prior to successful unionization, Walzer interpreted the auto worker sit-downers’ efforts as akin to illegal protests in authoritarian states. Like those doing battle with autocrats, the sit-downers sought union rights to limit hitherto unchecked managerial prerogatives.

For Walzer, the UAW sit-downers met a series of demanding conditions that qualified their actions as “civil.” First, they made a persuasive case that work conditions were repressive. Second, they offered tangible evidence, by means of proposals to reorganize decision making at work, that their intentions were basically democratic in character. Third, they had exhausted formal channels and possibilities for redress. Fourth, they minimized coercion: sit-downer violence was typically defensive and usually only transpired when oppression was “palpable and severe.”Footnote ¹¹⁰ Fifth, sit-downers “repeatedly stressed their willingness to negotiate a settlement.”Footnote ¹¹¹

Like increasingly influential liberal notions, Walzer's revisionist interpretation of the sit-downs as an alternative mode of civil disobedience, “in which the [democratic] state is not challenged . . . but only those corporate authorities that the state (sometimes) protects,”Footnote ¹¹² demanded that lawbreakers pass some tests. Even under the conditions of corporate autocracy, civil disobedience required responsibility and good faith efforts to minimize harm. To the extent that the UAW sit-downers had acted accordingly, they had intimated a broader notion of “civility” than that endorsed by competing liberal theorists of political obligation.

Walzer's account rested on contested views about corporate authority I cannot defend here. Yet, his contribution is illuminating for two reasons. First, by recalling the sit-downs, he had identified how their transfiguration into civil rights sit-ins—and the liberal theories inspired by them—had distorted some of their original contours. The sit-downers helped birth liberal theories of civil disobedience. However, the resulting liberal theories offered a poor framework for understanding the sit-downs. An astute student of the history of the American Left, Walzer surely appreciated the irony of this peculiar historical trajectory. Second, Walzer's analysis raised questions that remain unanswered. Most importantly, under what conditions might more expansive understandings of disobedience and resistance be justified, even in the context of more or less liberal societies?Footnote ¹¹³ When, if ever, can we identify reasons for protesters to step outside the boundaries of stringent liberal models of civil disobedience? Can coercive or violent protest ever be acceptable in democratic societies? Might “civility” be understood differently from how Rawls and other liberal theorists of civil disobedience asserted?Footnote ¹¹⁴ In response to a resurgence of militant, oftentimes unconventional political lawbreaking, scholars are debating these matters. The fact that they are doing so suggests that Walzer was right that many “questions raised in 1936–1937 still have to be answered.”Footnote ¹¹⁵

In 1961, King highlighted the links between the sit-downs and sit-ins. Scholars should follow his lead by paying closer attention to recent thinking about the forgotten sources of political disobedience in the tumultuous labor upheavals of the last century. Without careful attention to the 1930s worker sit-downs and their legacy we cannot fully understand either the 1960s civil rights sit-ins or the liberal theories of civil disobedience they spawned. Only by following King's example are we likely to get a better handle on the genealogy of contemporary theories of political obligation along with their strengths and weaknesses.