More on McCutcheon: Justice Breyer’s Dangerous Ideas on Free Speech

Two blog posts on the Supreme Court’s McCutcheon decision deserve mention and praise for the way in which they highlight disquieting themes in Justice Breyer’s dissenting opinion.

The first is this one by legendary First Amendment lawyer Floyd Abrams, who has spent a laudable lifetime working to leave the state of First Amendment jurisprudence better than he found it. Abrams makes the following outstanding point concerning the dissent in McCutcheon:

What seems to me most surprising and disturbing about the ruling, though, is not to be found in the predictably much assaulted (and I believe sound) majority opinion but in the dissent.  For there, for the first time, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan join with Justice Stephen Breyer’s minimization of long-recognized  and well-established First Amendment interests by maintaining that, after all, the side seeking to overcome those interests had at least as strong a First Amendment argument on its side.  In McCutcheon, that argument is based on the notion that the avoidance of whatever is defined as “corruption” strengthens the First Amendment.  With the First Amendment thus placed in some sort of supposed equipoise (since “First Amendment interests lie on both sides of the legal equation”) the case becomes an easy one.  It is, in my view, but in a different direction.

In his book Active Liberty: Interpreting Our Democratic Constitution (2006), Justice Breyer offered an overview of the First Amendment which posited that its primary purpose was not to protect speech from government control or limitation but “to encourage the exchange of information and ideas necessary for citizens themselves to shape that ‘public opinion which is the final source of government in a democratic state.’”  A statute limiting independent spending on political speech is thus defensible against a First Amendment challenge and indeed serves First Amendment interests since it “facilitate[s] a conversation among ordinary citizens that will encourage their informed participation.”   In his dissenting opinion in McCutcheon, Breyer takes that a step further, concluding that “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.”  (emphasis in original).  The First Amendment, he maintains, must be understood as promoting “a government where the laws reflect the very thoughts, views, ideas and sentiments, the expression of which the First Amendment protects.”

These statements are not totally at odds with the First Amendment. But they are deeply disquieting.  It is true that by restricting the ability of the government to control, let alone limit, speech, the First Amendment surely assists in preserving “democratic order.”  But giving the government, in the name of advancing democracy, significant power to limit the amount of speech about who to vote for risks much that the First Amendment was adopted to protect.  And what, after all, does Justice Breyer mean by “collective speech?” In his opinion, Chief Justice John Roberts persuasively objects to relying on the “generalized conception of the public good” set forth in the Breyer dissent, taking issue with the very notion of “collective speech” as being contrary to “the whole point of the First Amendment” of not permitting the will of the majority to carry the day by preventing speech of which it disapproved.

It is difficult to read the McCutcheon dissent without recalling two of the Court’s landmark First Amendment rulings of the past. Both were unanimous.  Both would be at risk if the First Amendment were somehow viewed as anything but a limitation on the government’s power to limit speech, even in the supposed service of “preserving democratic order,” vindicating “collective speech,” or  the like.

Read the whole thing. Abrams’s concerns are echoed in the second blog post that you ought to read, by David Bernstein:

The danger of this argument is that analogous reasoning could be used to censor major media corporations such as the New York Times, Hollywood, and so on, to wit: ”When Hollywood spends billions of dollars each year advancing a liberal agenda, the general public will not be heard.  Instead of a free marketplace of ideas, we get a marketplace in which major Hollywood moguls have hundreds of thousands of times the ‘speech power’ of the average American.”  And given that almost everyone deems it appropriate to regulate the economic marketplace to counter inefficiencies and unfairness, why should the much-less-efficient (because it’s much more costly for an individual to make an error in his economic life than to have a mistaken ideology)  marketplace of ideas be exempt from harsh regulation?

In short, once one adopts the Progressive view of freedom of speech as only going so far as to protect the public interest in a well-functioning marketplace of ideas, there is no obvious reason to limit reduced scrutiny of government “public interest” regulation of speech to campaign finance regulations.  Nor is it obvious why the Court should give strict scrutiny to speech restrictions that don’t directly affect the marketplace of ideas, instead of just using a malleable test balancing “speech interests” versus other interests.

Not surprisingly, then, Breyer is the Justice who is least inclined to protect freedom of speech in a variety of contexts.   And it’s troubling that his three liberal colleagues joined his opinion today. Josh Blackman and I wrote three years ago, “Breyer’s apparent ascendance as doyen of the Court’s liberal wing threatens to roll back decades of pro-liberty precedents, and to destroy the consensus on the Court that freedom of speech and other essential rights must not be sacrificed to the shifting whims of legislative majorities.”  I hope to be a failed prophet.

The opponents of the majority opinion in McCutcheon like to claim that the decision is somehow deeply radical in nature. In fact, the prescriptions offered by those opponents–prescriptions that are reflected in Justice Breyer’s dissent (which again, was joined by three other justices)–have the potential to most drastically change the scope and interpretation of the First Amendment. And from the standpoint of any genuine proponent of free speech, those changes would be for the worse.

UPDATE: Don Boudreaux points to Michael Kinsley, who has a healthy outlook on this issue, and who offers much needed perspective with the following observation:

How can anyone say — as people do say, as if this settles the issue — that “Money isn’t speech” and then, in the same breath, ask for money to spread the word about the danger to democracy posed by the Koch brothers, who are pouring millions of dollars into political campaigns supporting their conservative-libertarian point of view? Money spent trying to spread a political message is speech, whether you like the message or not. More money is louder speech, that more people can hear.

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