The ‘marketplace of ideas’ metaphor tends to dominate US discourse about the First Amendment and free speech more generally. The metaphor is often deployed to argue that the remedy for harmful speech ought to be counterspeech, not censorship; listeners are to be trusted to sort the wheat from the chaff. This deep skepticism about the regulation of even harmful speech in the USA raises several follow-on questions, including: How will trustworthy sources of information fare in the marketplace of ideas? And how will participants know whom to trust? Both questions implicate non-regulatory, civil-society responses to mis- and disinformation.

This chapter considers the relationship between antitrust law and the First Amendment as those topics relate to workers’ collective action. It asks why the US Supreme Court has remained unwilling to accept First Amendment defenses in cases involving potential antitrust liability for strikes and boycotts, even as it has expanded the scope of First Amendment protections available in analogous situations. The chapter begins by reviewing foundational cases regarding antitrust liability for strikes and boycotts. It then discusses subsequent developments in First Amendment doctrine related to commercial speech, free association, and civil-rights boycotts. Finally, the chapter turns to the 1990 US Supreme Court case, Federal Trade Commission v. Superior Court Trial Lawyers Association, showing how First Amendment principles that are uncontroversial in other contexts could have driven a different outcome. The chapter closes with observations about the modern Supreme Court’s views of the purposes of the First Amendment, and difficulties workers and unions are likely to encounter thereunder.

This chapter argues that a pro-democracy First Amendment should also be a pro-union First Amendment. It is an article of faith that a significant purpose of the First Amendment is to enable and improve democracy, by helping Americans access the information they need for democratic deliberation and participation. Further, a considerable body of research shows that labor unions make American democracy stronger and more representative. But despite this, the Supreme Court has treated unions’ political advocacy in cases involving union agency fees with suspicion and disdain. After describing this unfortunate situation – one that is likely to get worse under the current Supreme Court – the chapter closes on a note of optimism, looking ahead to a time when scholars and advocates can realistically begin the work of rebuilding a First Amendment that recognizes labor unions as democracy-enhancing institutions.

Work has changed since the National Labor Relations Act became law more than eighty years ago. But as Cynthia Estlund’s chapter in this volume discusses, the NLRA has proven mostly impervious to amendment, with the significant exceptions of 1947’s Taft–Hartley Act and 1959’s Landrum-Griffin Act. The contrast with the public sector could not be sharper: where the NLRA has been stable, states have changed the laws governing concerted activity and collective bargaining by public employees relatively frequently. Likewise, an increasing list of states have raised the minimum wage and implemented other employment protections for both private- and public-sector workers, including paid sick days, predictable scheduling, and more.