Justice Breyer’s conception of liberty harkens back to the progressive era. Rather than viewing individual liberty, and rights, as ends onto themselves that should exist free from government interference, he sees liberty as important only so long as it serves some sort of governmental interest. Not that the government can limit speech when it has a compelling interest to do so, but speech is bestowed on people to serve that interest. Devoid of that utilitarian purpose, speech is no longer protected.

This utilitarian conception of freedom departs from the tradition of many prominent liberals, like Warren or Brennan, who sought to provide constitutional protections, even for non-democratic rights. In an Op-Ed I co-authored with David Bernstein in 2011 (feels like forever ago!), we argued that Breyer, on this front, most closely resembles Oliver Wendell Holmes. His views are most pronounced in free speech cases, as evidenced in his dissents in Brown v. EMA (herehere, and here), Sorrell v. IMS Health (here), and now McCutcheon v. FEC.

His discussion of precedent is grounded in Holmes’s vision of the marketplace of ideas:

 Speech does not exist in a vac- uum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives.

Next Breyer turns to a fellow Progressive, Justice Brandeis, and his concurring opinion in Whitney v. California.

This is not a new idea. Eighty-seven years ago, Justice Brandeis wrote that the First Amendment’s protection of speech was “essential to effective democracy.” Whitney v. California, 274 U. S. 357, 377 (1927) (concurring opinion).

To Breyer, we protect speech that is “essential to effective democracy.” He also cites Chief Justice Hughes for this instrumental view of liberty, that views speech only as a “means” to an “end” (emphasis added by Breyer):

Chief Justice Hughes reiterated the same idea shortly thereafter: “A fundamental principle of our constitutional system” is the “maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people.” Stromberg v. Cali- fornia, 283 U. S. 359, 369 (1931) (emphasis added). In Citizens United, the Court stated that “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” 558 U. S., at 339 (emphasis added).

These might seem like laudatory goals, but when speech no longer serves to “secure government action” (whatever that is, and whoever determines that), the speech loses protection. This take a very, very cramped view of freedom. To Breyer, much like the Second Amendment, the First Amendment is a collective right.

Accordingly, the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.

Think about that for a moment. What determines if speech is protected is whether it “preserve[s] a democratic order” for the “collective” good.  That is a very troubling vision of free expression. There is a lot of speech that may serve individualistic ends, and under strict scrutiny, it is the government’s burden to show why a compelling interest exists to limit that speech. It is not the individual’s burden to show that his expression is made in pursuance of some nebulously defined common good. Whether or not you agree with the majority’s (narrow) definition of corruption, Breyer’s discussion of free speech on pages 5-6 is troubling. I did a search for the phrase “collective speech” in the U.S. Supreme Court database, and the only hit was McCutcheon.

Rather than protecting speech, Breyer’s “collective” First Amendment limits it to ensure that others can be heard. According to Breyer’s views, campaign finance laws “strengthen” the First Amendment, by “creat[ing] a democracy responsive to the people”:

Rather, they are interests rooted in the First Amendment it- self. They are rooted in the constitutional effort to create a democracy responsive to the people—a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects. Given that end, we can and should understand campaign finance laws as resting upon a broader and more significant constitutional rationale than the plural- ity’s limited definition of “corruption” suggests. We should see these laws as seeking in significant part to strengthen, rather than weaken, the First Amendment.

Again this is a collective First Amendment Right, whereby speech can be limited in order to promote other types of democratic speech preferred by the collective.

Even Breyer’s efforts to limit his opinion, and say that paying for speech is important, is still premised on this collective First Amendment right. The speech must relate to the “diffusion of ideas” or “the integrity of the electoral process.”

To say this is not to deny the potential for conflict between (1) the need to permit contributions that pay for the diffusion of ideas, and (2) the need to limit payments in order to help main­tain the integrity of the electoral process. But that conflict takes place within, not outside, the First Amendment’s boundaries.

It is somewhat ironic that the most vigorous defenders of free speech now on the Court are the conservatives. The Chief Justice’s majority opinion responds at several points to this “collective” First Amendment right. While Breyer cites Brandeis and Holmes for his First Amendment support, Chief Justice Roberts cites the apogee of liberal protection of free speech on the Warren Court, Cohen v. California (the “Fuck the Draft” case).

The First Amendment “is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, . . . in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” Cohen v. California, 403 U. S. 15, 24 (1971). As relevant here, the First Amendment safe- guards an individual’s right to participate in the public debate through political expression and political associa- tion.

This is the classic, liberal (not to be confused with classically liberal) vision of free speech–it means the government keeps its hands off speech, unless it has a really good reason. Roberts  directly responds to Breyer’s juxtapoistion of the “individual” and “collective” right of free speech.

The dissent faults this focus on “the individual’s right to engage in political speech,” saying that it fails to take into account “the public’s interest” in “collective speech.” Post, at 6 (opinion of BREYER, J). This “collective” interest is said to promote “a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.” Post, at 7.

Roberts emphatically rejects this collective First Amendment right, citing Alvarez, Wooley, and WV Board of Education v. Barnette:

But there are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good. First, the dissent’s “collective speech” reflected in laws is of course the will of the majority, and plainly can include laws that restrict free speech. The whole point of the First Amendment is to afford individuals protection against such infringements. The First Amendment does not protect the government, even when the government purports to act through legislation reflecting “collective speech.” Cf. United States v. Alvarez, 567 U. S. ___ (2012); Wooley v. Maynard, 430 U. S. 705 (1977); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943).

That’s exactly right. The First Amendment is not some sort of instrumental tool to protect government process. It is meant to be a shackle on government itself.

Second, who is to determine what speech is conducive to the collective good. This is a decision for individuals, not the collective.

Second, the degree to which speech is protected cannot turn on a legislative or judicial determination that partic- ular speech is useful to the democratic process. The First Amendment does not contemplate such “ad hoc balancing of relative social costs and benefits.” United States v. Stevens, 559 U. S. 460, 470 (2010); see also United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000) (“What the Constitution says is that” value judg- ments “are for the individual to make, not for the Gov- ernment to decree, even with the mandate or approval of a majority”).

Third, I think Roberts gets it right that strict scrutiny already considers the general welfare, and does not protect any speech that unduly harms others. But that is the exception to the rule, not the basis itself. Speech is presumed valid unless it has negative social costs to others. But Breyer would make the preservation of positive governance the core of the right (seeing other similarities to his Second Amendment jurisprudence), rather than placing individual right at the core.

Third, our established First Amendment analysis al- ready takes account of any “collective” interest that may justify restrictions on individual speech. Under that accepted analysis, such restrictions are measured against the asserted public interest (usually framed as an im- portant or compelling governmental interest). As ex- plained below, we do not doubt the compelling nature of the “collective” interest in preventing corruption in the electoral process. But we permit Congress to pursue that interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech; we do not truncate this tailoring test at the outset. 

Roberts makes this point explicitly–the Court (mostly him) has held that “leveling the playing field” and improving the democratic process is not a valid interest to limit free speech. To Breyer, this is the primary reason why we have free speech–to ensure a level playing field.

ith the significant First Amendment costs for individ- ual citizens in mind, we turn to the governmental inter- ests asserted in this case. This Court has identified only one legitimate governmental interest for restricting cam- paign finances: preventing corruption or the appearance of corruption. See Davis, supra, at 741; National Conserva- tive Political Action Comm., 470 U. S., at 496–497. We have consistently rejected attempts to suppress campaign speech based on other legislative objectives. No matter how desirable it may seem, it is not an acceptable govern- mental objective to “level the playing field,” or to “level electoral opportunities,” or to “equaliz[e] the financial resources of candidates.” Bennett, 564 U. S., at ___ (slip op., at 22–23); Davis, supra, at 741–742; Buckley, supra, at 56. The First Amendment prohibits such legislative at- tempts to “fine-tun[e]” the electoral process, no matter how well intentioned. Bennett, supra, at ___ (slip op., at 21).

Herein lies a fundamental disagreement over the individual, and collective First Amendment.

As we framed the relevant principle in Buckley, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” 424 U. S., at 48–49. The dissent’s suggestion that Buckley supports the opposite proposition, see post, at 6, simply ignores what Buckley actually said on the matter. See also Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 295 (1981) (“Buckley . . . made clear that contributors cannot be protected from the possibility that others will make larger contributions”).

Consider this passage on free speech from Breyer’s book, Active Liberty:

One the one hand, if strong First Amendment standards were to apply across the board, they would prevent a democratically elected government from creating necessary regulation. The strong free speech guarantees needed to protect the structural democratic governing process, if applied without distinction to all governmental efforts to control speech, would unreasonably limit the public’s substantive economic (or social) regulatory choices. The limits on substantive choice would likely exceed what any liberty-protecting framework for democratic government could require, depriving the people of the democratically necessary room to make decisions, including the leeway to make regulatory mistakes. [And in a sentence that could come from his dissent in Sorrell v. IMS Health] That, along with a singular lack of modesty, was the failing of Lochner. No one wants to replay that discredited history in modern First Amendment guise.” (pp. 41-42)

Breyer quite clearly views robust protection for speech, as a liberty interest, as no different from the liberty of contract protected in Lochner. And, except where speech serves some broader interest of supporting democratic governance, the state’s interests should trump. Granted, to Breyer democratic governance is a much more compelling interest than freedom of contract. This approach is akin to Holmes’s progressive view of free speech as important, so that competing views in the arena of ideas can work themselves out. But, there is no implicit or inherent value in freedom of expression by itself.

I wonder, and fear, that Breyer’s opinion may signal a shifting trend in broader thought on free speech on the left. With respect to speech, modern-day liberalism seems to be drifting away from protecting free speech, and more towards  state-imposed equality.

Ron Collins explored this dynamic in the ACLU’s decision not to file a brief in McCutcheon. Because the state has an overriding interest in campaign finance laws, the individual right to expression gives way. Steven Shapiro, the legal director of the National ACLU, alludes to this “divide.”

Ron and David are incorrect to suggest that the ACLU’s absence in McCutcheon v. FEC reflects a new sensitivity to “divisions” within the ACLU over the campaign finance question. The ACLU’s policy on campaign finance is among the most debated policies in the organization’s history. But despite repeated reexaminations, the ACLU has never wavered from its position in favor of public financing and against restrictions on political expenditures. The ACLU did, however, change its policy on contribution limits in 2010, stating for the first time that it would “not oppose reasonable contribution limits to candidates that are set at levels that allow candidates to amass sufficient resources to run effective campaigns.”

I imagine many in the ACLU from the Floyd Abrams generation can’t stomach this position.

The fact that Justice Ginsburg gave this opinion to Breyer, and not Kagan is telling. Kagan, could have provided a much more liberal vision of opposing campaign finance laws, while preserving the value and importance of free speech. Consider Kagan’s remarks on her voting with the majority in the video game violence case:

Among one of her most difficult cases, she said, was the constitutionality of the California law that would have banned the sale of violent video games to minors. The court in June struck down the law 7-2 using the First Amendment as the reasoning. “It was the case where I struggled most and thought most often I’m on the wrong side of it,” she said. “You could see why the government would have wanted to do this and you can see the kind of danger it was worried about, the kind of effects these extremely violent video games have on young people.” She added it was easy to see what the state was doing and it seemed reasonable. “But I couldn’t figure out how to square that with our First Amendment precedents and precedent is very important to me,” she said about her vote to invalidate the California law. “I sweated over that mightily.” Kagan also discussed other cases in the past year that have highlighted the court’s position on the First Amendment. “I think what you have to say, and people have been saying this, is this is a court that is extremely protective of the First Amendment and extremely protective of speech,” she said. “There is no question the court has a very expansive view of the First Amendment.”

I have to imagine Kagan held her nose signing onto parts of McCutcheon that reduces the First Amendment to an instrumentality of the state. In future opinions, the Kagan-Breyer divide on speech may drift wider.

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