Breyer’s dangerous dissent in McCutcheon (the campaign finance case)

April 2

Many early twentieth century American Progressives, who previously were indifferent or hostile to freedom of speech, discovered its importance during World War I and the post-War Red Scare, when the government prosecuted pacifists, pro-German activists, and radicals of various stripes.  The idea that such persecution could occur in the U.S., and by an overtly Progressive (Wilson) Administration no less, was profoundly disturbing.

The problem for Progressives with a newfound interest in freedom of speech was that many of them were skeptical of the notion of rights more generally, finding the American tradition of natural rights to be reactionary, unscientific, and anti-democratic. But how could one protect the right to freedom of speech if one did not believe in rights to begin with?  

Moreover, Progressives were adamantly opposed to a strong role for the judiciary in enforcing constitutional norms. Prior generations of free speech radicals had sought broad protection for a wide range of expression, but to concede that the judiciary had a role to play in protecting broad individual speech rights would have conflicted with the Progressives’ strong aversion to judicial review.

As a result, leading Progressive defenses of freedom of expression, such as Zechariah Chafee’s, relied on utilitarian considerations and not on freedom of expression as a fundamental individual right. Progressives identified freedom of speech as a civil liberty to differentiate it from what Progressive understood to be the obsolete, individualist, natural-rights based liberties of the American past. While activist government was inimical to such rights as liberty of contract and property rights, it arguably buttressed a Progressive case for freedom of speech.  According to Progressive advocates of constitutional protection for freedom of expression, the more active a role played by government, the more important it is to ensure that public policy is subject to vigorous and uninhibited debate.  Such debate not only could bring important considerations to light, but also could serve as a check on those who would use public power for private gain, which in turn would lead to better public policy, which in turn would create a welcome demand for even more government.

In 1927, Justice Brandeis penned an extraordinarily influential concurrence supporting constitutional protection for freedom of speech in Whitney v. California.  Consistent with his Progressivism, Brandeis defended freedom of speech primarily on the instrumental ground that it promoted free and rational public discussion, essential for the American people to govern themselves.  By focusing on the social interest in democratic self-government, Brandeis attempted to differentiate freedom of speech from individualist rights such as liberty of contract and other traditional assertions of natural rights against the government.

By segregating speech rights from other rights protected by the so-called Lochner era Supreme Court, and narrowing the potential scope of such rights–Brandeis, for example, didn’t think much of corporate exercise of political speech rights–Brandeis helped ensure that constitutional protection for freedom of speech survived the sweeping constitutional changes that the New Deal and Franklin Roosevelt’s appointees to the Court put in motion.  Indeed, with encouragement from the Roosevelt Administration and the elite bar, freedom of speech became a “preferred freedom” and the first and most important arrow in the post–New Deal Court’s civil libertarian quiver.

The Warren Court in its heyday happily moved beyond Brandeis’s relatively narrow notion of freedom of speech to protect cultural radicals and others who engaged in speech disapproved of by local or national majorities.  Meanwhile, a new (and better) implicit justification for freedom of speech took hold, much more in line with American tradition: the government cannot be trusted to be a censor, deciding which speech is worthy of protection and which must be suppressed.  It’s not only too easy for majorities to use the government to suppress minority expression, it’s far too easy for the government itself to use power over expression to benefit incumbent legislators and the interest groups who support them, leading to an ossified status quo, both cultural and political. Moreover, speech was once more seen as an individual right, transcending the marketplace of ideas rationale.

It’s therefore not all that surprising that when the Supreme Court decided Buckley v. Valeo in 1976, affirming some limits on campaign contributions to avoid corruption, but holding that political donations receive substantial First Amendment protection, the opinion was written by liberal stalwart William Brennan, and was thought too weak by the ACLU.

Since then, opposition to First Amendment protection of campaign donations has become a significant “cause” on the liberal left.  It’s not hard to see why: the legacy mainstream media, Hollywood, academia, publishing, the legal profession, the mainline churches, and the arts, i.e., almost all of the leading opinion-making areas of American life, are dominated by liberals (though conservatives dominate talk radio, evangelical churches, and have Fox News).  The one place where the playing field is more or less level is in campaign spending.  Limit campaign spending, and left-leaning opinion-makers utterly dominate American political discourse.

But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?

Justice Breyer’s dissent today shows the way, as he revives the old Progressive conception of freedom of speech as serving instrumental purposes (which he calls “First Amendment interests”), rather than protecting individual rights or reining in potential government abuses.  And once we identify those “First Amendment interests,” we must limit freedom of speech to ensure that they are advanced.

Thus, Justice Breyer, writes, “Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. 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.”  Just to make sure he’s not being too subtle, Breyer goes back to the source, Justice Brandeis, citing his opinion in Whitney for the proposition that freedom of speech is protected because it’s “essential to effective democracy.” 

Further showing off his affinity for the Progressive statism of a century ago (noted by Josh Blackman and me here), Breyer turns constitutional history on its head, by declaring that the purpose of the First Amendment was not to prevent government abuses, but to ensure “public opinion could be channeled into effective governmental action.”  As Tim Sandefur points out, “Actually, the framers devised the constitutional structure to prevent public opinion from being channeled into effective government action. One cannot honestly read The Federalist without understanding that the system was designed in order to ensure that public opinion would only be translated into government action when it had been sufficiently challenged, weighed, and considered for its correspondence to principles of justice.”

In any event, Breyer adds that “corruption,” by which he means individuals engaging in too much freedom of speech via campaign donations, “derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.”

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.

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA.
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