Is the First Amendment a protection of the individual’s right to free speech or merely a recognition of the social utility of free speech? That’s the question which underlies the divide between the Supreme Courts conservative and liberal wings.
Justice Breyer wrote the liberal dissent from the McCutcheon decision
which struck down overall limits on campaign spending (though not
individual limits given to each candidate). He was joined by Justices Sotomayor, Ginsburg and Kagan.
Wednesday David Bernstein critiqued Breyer’s understanding of the First Amendment saying the Justice had embraced a conception of the amendment as collective and instrumental rather than individual in nature.
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.
Bernstein then notes the inherent danger in the view that the First Amendment exists to protect the collective marketplace for speech not speech as an individual right:
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?
If we’re going to try and make sure certain speech is not unfairly amplified by the power of money why wouldn’t we also try to insure it’s not unfairly amplified by the power of media? If we need limits on campaign spending by the rich, how about limits on endorsements by the famous? Is it really fair that one party has Lady Gaga and Zach Galifianakas pushing their message in the public sphere and the other does not?
Over at the Wall Street Journal, James Taranto adds something significant to Berstein’s observations. He points out that the left’s collective view of the First Amendment is very similar to their view of the Second Amendment:
As with the Second Amendment, he and the other dissenters assert a “collective” right, the establishment of which
is purportedly the Constitution’s ultimate purpose, as a justification
for curtailing an individual right.
In this case they at least acknowledge the individual right exists. But
then the First Amendment, unlike the Second, has no prefatory clause
explaining its purpose; it simply says “Congress shall make no
law . . .” Breyer has to venture outside the text to find a reason to
read that prohibition equivocally.
Both Bernstein and Taranto note that Justice Breyer has a history of wishy-washy defense of the First Amendment protection of freedom of speech. On that point, I was reminded of something Breyer said back in 2010. Asked by George Stephanopoulos whether the internet had changed “the nature of what we can allow and protect,” Breyer seemed to agree it had. He suggested that one man in Florida burning a Koran was tantamount to yelling “Fire!” in a crowded theater.