FAN 41 (First Amendment News) Three Harvard Law Review essays discuss Justice Breyer’s free speech jurisprudence

On the one hand . . . but then on the other

When it comes to free speech, he is darling of the Liberal Left . . . or some on the Left, or of some on the Left in the legal academy, or of those on the Left who abhor rulings such as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014). To others, he is the Justice who got the First Amendment right (albeit in dissent) in cases such as Holder v. Humanitarian Law Project (2010) and Garcetti v. Ceballos (2006). Many of those same defenders shy away from their praise when it comes to opinions such as the one Justice Breyer authored in Randall v. Sorrell (2006).

In his pragmatist approach, one will readily discern the vernacular of ad hoc balancing, of  “competing constitutional concerns” or “First Amendment interests . . . on both sides of the legal equation.” Mindful of such concerns, he asks: Are the “restrictions on speech disproportionate when measured against their speech-related benefits”? And why? What is the purpose of such balancing? He responds: to “facilitate a conversation among ordinary citizens that will encourage their informed participation.” To that end, government may limit speech in the supposed service of “preserving a democratic order” or for the purpose of promoting and protecting  “collective speech.” In this way an others, and dating back to his 1997 concurrence in Turner Broadcasting System, Inc. v. FCC II, Stephen Breyer has set out to rewrite First Amendment jurisprudence.

In light of his two decades of service on the Supreme Court, I thought I would offer some background information on how the Justice has decided First Amendment free expression cases (29 are listed below), his thoughts on free speech generally, and how scholars and lawyers have viewed his jurisprudence in this area. A sketch of all of that is set out below by way of select references to various sources.

HLR Essays in Honor of Justice Breyer 

The November issue of the Harvard Law Review has a collection of essays in honor of Justice Stephen Breyer’s twenty years of service on  the United States Supreme Court. The following three essays concern the Justice’s free speech jurisprudence:

• Mark Tushnet, “Justice Breyer and the Partial De-Doctrinalization of Free Speech Law,” 128 Harvard Law Review 508 (2014)
• Martha Field, “Holder v. Humanitarian Law Project: Justice Breyer, Dissenting,” 128 Harvard Law Review 434 (2014)
• Martha Minow, “The Big Picture: Justice Breyer’s Dissent in Brown v. Entertainment Merchants Association,” 128 Harvard Law Review 469 (2014)

Let me pose a hypothetical: “Candidate Smith — we can only give him $2,600 — has a lot of supporters.”

Active Liberty: Justice Breyer on Free Speech

In his 2005 book, Active Liberty: Interpreting our Democratic Constitution, Justice Breyer devoted a chapter (pp. 39-55) to the question of free speech.

Roberts Court Era: Justice Breyer’s Majority or Plurality Opinions in Free Expression Cases

In what follows, S indicates that a majority of the Court sustained the First Amendment claimed whereas D means that it was denied.

• ™[D: 6-2: Plurality]: Beard v. Banks (2006)
• [S: 6-3: Plurality]: Randall v. Sorrell (2006)
• ™[D: 9-0]: Locke v. Karass (2009)

Separate Opinions: Below is a list of separate opinions authored by Justice Breyer in free expression cases decided during the Roberts Court era:

• ™[D: 5-4] McCutcheon v. Federal Election Commission (2014) (dissenting)
• [S: 6-3] United States v. Alvarez (2012) (concurring in the judgment)
• [S: 6-2] Golan v. Holder  (2012) (dissenting)
• [D: 7-2] Knox v. Service Employees International Union (2012) (dissenting)
• [S: 8-1] Snyder v. Phelps (2011) (concurring)
• ™[D: 7-2] Brown v. Entertainment Merchants Association (2011) (dissenting)
• [D: 8-1]  Doe v. Reed (2010) (concurring)
• [S: 6-3] Holder v. Humanitarian Law Project (2010) (dissenting)
• [D:9-0] Pleasant Grove City, UT, et al v. Summum (2009) (concurring)
• [S: 6-3]  Ysursa v. Pocatello Educational Association (2009) (concurring in part & dissenting in part)
• ™[S: 5-4] Morse et al. v. Frederick (2007) (concurring in the judgment in part & dissenting in part)
• [D:9-0] Davenport v. Washington Educ. Association (2007) (concurring in part & concurring in judgment)
• [S: 5-4] Garcetti v. Ceballos (2006) (dissenting)

the pensive pragmatist

Justice Breyer’s Pre-Roberts Court Opinions: Selected Cases 

• [D: 6-3] Johanns v. Livestock Marketing Association (2005) (concurring)
• [D: 5-4] Ashcroft v. ACLU II (2004) (dissenting)
• [D: 5-4] McConnell v. Federal Election Commission (2003) (delivered the opinion of the Court re BCRA Title V)
• [D: 7-2] Eldred v. Ashcroft (2003) (dissenting)
• [D: 6-3] United States v. American Library Association, Inc. (2003) (concurring in judgment)
• [S: 8-1] Watchtower Bible & Tract Society v. Village of Stratton (2002)
• [S: 5-4] Thompson v. Western States Medical Center (2002) (dissenting)
• [S: 6-3] Bartnicki v. Vopper (2001) (concurring)
• [D: 5-4] U.S. v. Playboy Entertainment Group (2000) (dissenting)
• [D: 5-4] Ashcroft v. ACLU (2000) (dissenting)
• [D: 6-3] Nixon v. Shrink Missouri Government PAC (2000) (concurring)
• [D: 5-4] Turner Broadcasting System, Inc. v. FCC II (1997) (concurring in part)
• [S&D: 7-2, split vote] Denver Area Educational Telecommunications Consortium v. FCC (1996) (majority in parts)

First Circuit Free Expression Opinions

• [S: 3-0] Ozonoff v. P Berzak (1st Cir., 1984) (for the court)
• [no 1-A judgment: 3-0] Amann v. Handler (1981) (for the court)

Commentaries on Justice Breyer’s Free Speech Jurisprudence  

• Floyd Abrams, “Opposing more speech — a disturbing & recurring reality,” SCOTUSblog, April 4, 2014
• James Taranto, “Welcome to the Collective: Justice Breyer turns the First Amendment on its head,” Wall Street Journal, April 3, 2014
• David Bernstein, “Breyer’s dangerous dissent in McCutcheon (the campaign finance case),” The Volokh Conspiracy, April 2, 2014
• Matthew L. Schafer, “Justice Breyer’s Approach to the First Amendment: ‘What I Think We Should Do,'” Lippman Would Roll, July 7, 2012
• David L. Hudson, Jr., “Breyer’s concurring opinion is cause for concern,” First Amendment Center, June 29, 2012
• Lillian BeVier, “The First Amendment on the Tracks: Should Justice Breyer Be at the Switch,” 89 Minn. L. Rev. 1280 (2004)
• Jerome Barron, “The Electronic Media and the Flight from First Amendment Doctrine: Justice Breyer’s New Balancing Approach,” 31 U. Mich. J.L. Reform 817 (1997)

Breyer’s Clerkship with Justice Goldberg (1964-1965)

During the period when Stephen Breyer served as one of the two law clerks to Justice Arthur Goldberg, the Justice wrote a First Amendment opinion in Cox v. Louisiana (argued Oct. 21, 1964, decided on Jan. 18, 1965). Some of the conference notes for the case, which include notes from Justice Goldberg and his change of vote, are set out in Del Dickson, ed.,  The Supreme Court in Conference: 1940-1985 (2001) at 323-327. It is unknown if Breyer worked on the Cox opinion or had any involvement with it — but perhaps he did?

Two Interviews with Justice Breyer

Go here to see National Constitution Center President and CEO Jeffrey Rosen’s 2014 video-recorded interview with Justice Breyer.

Go here to see Charlie Rose’s 2010 video-recorded interview with Justice Breyer.

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THE COURT’S 2014 FREE EXPRESSION DOCKET

Review Granted

1. Elonis v. United States (to be argued on 12-1-14)
2. Williams-Yulee v. The Florida Bar
3. Reed v. Town of Gilbert

Review Pending

1. Vermont Right to Life Committee, et al v. Sorrell
2. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
3. Berger v. American Civil Liberties Union of North Carolina
4. Walker v. Texas Division, Sons of Confederate Veterans

Review Denied

1. Pregnancy Care Center of New York v. City of New York 
2. City of Indianapolis, Indiana v. Annex Books, Inc.
3. Ashley Furniture Industries, Inc. v. United States 
4. Mehanna v. United States

ACLU & Electronic Frontier Foundation prevail in challenge to sex-offender reporting requirement

According to an Associated Press story by Paul Elias: “Registered sex offenders in California don’t have to disclose their email addresses, Internet service providers, screen names and other electronic information to authorities as required by a voter-approved law, a federal appeals court ruled Tuesday.The 9th U.S. Circuit Court of Appeals said those requirements violated the free speech rights of about 73,000 sex offenders who have served their prison terms. The ruling upholds a lower court’s order.”

The case is Doe v. Harris (9th Cir., Nov. 18, 2014). The opinion for the three-judge panel was authored by Senior District Judge Jay S. Bybee. Judge Bybee ruled that registered sex offenders who have completed their terms of probation and parole enjoy the full protection of the First Amendment. He also held that since the law imposes a substantial burden on sex offenders’ ability to engage in legitimate online speech, and to do so anonymously, First Amendment scrutiny was warranted. Applying intermediate scrutiny, Judge Bybee concluded that the law unnecessarily chilled protected speech in the following three ways:

1. it does not make clear what sex offenders are required to report;
2. it provides insufficient safeguards preventing the public release of the information sex offenders do report; and
3. the 24-hour reporting requirement is onerous and overbroad. The panel concluded that appellees were likely to succeed on the merits of their First Amendment challenge and that the district court did not abuse its discretion in deciding that all the necessary elements for obtaining a preliminary injunction were satisfied.

→ The lawyers for the Plaintiffs-Appellees were: Michael T. Risher (argued), Linda Lye, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, California; Hanni Fakhoury, and Lee Tien, Electronic Frontier Foundation, San Francisco, California. .

Eugene Volokh & others challenge California ban on advertising handguns

California law (Cal. Civil Code § 26820) provides: “No handgun or imitation handgun, or placard advertising the sale or other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside.”

Earlier this week UCLA Law Professor Eugene Volokh, Bradley Benbrook and Stephen Duvernay challenged that law in a federal district court in Sacramento with Judge Troy L. Nunley presiding. The case is Tracy Rifle & Pistol LLC. v. Harris (E.D. Cal.). The case is being supported by the California Association of Federal Firearms Licensees, the Calguns Foundation, and the Second Amendment Foundation.

In their motion for a preliminary injunction, the lawyers for the four plaintiff firearms dealers make the following First Amendment arguments:

1. the California law is presumptively invalid becauses it imposes a content and speaker based burden on protected expression
2. and that the law fails the test of Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)

They begin their motion this way:

The sale of handguns is not only legal—it is constitutionally protected. The First Amendment protects truthful, nonmisleading commercial speech promoting lawful products or services, but especially when the products or services are themselves protected by other constitutional rights, such as the right to abortion or the right to buy contraceptives.1 What is true for unenumerated constitutional rights must be at least as true for the enumerated right to bear arms, which includes the right to possess and acquire handguns.

The hearing on the motion is set for January 29, 2014.

→ See Jacob Gershman, “Gun Dealers Sue California Over Store Advertising Ban,” WSJ Online, Nov. 12, 2014 (and Volokh Conspiracy story here)

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A culture of critique depends on tolerance. — Lars Svendsen

Few noted philosophers since Alexander Meiklejohn (1872-1964) untrained in the law have grappled with the issue of free speech. If you are wondering about Ronald Dworkin (1931-2013), well, he was educated at Harvard Law School as was Professor Frederick Schauer. Of course, there are Thomas Nagel and T.M. Scanlon — two respected philosophers who have written on free speech jurisprudence. Now, a Scandinavian philosopher has weighed in on the topic, especially in ways that resonate with certain modern tenets of American free speech jurisprudence. 

Enter Lars Svendsen, the acclaimed Norwegian philosopher who teaches at the University of Bergen. In his recently translated book A Philosophy of Freedom (Reaktion Books, 2014), Professor Svendsen devotes a chapter to the subject of free speech — this under the grander rubric of “The Politics of Freedom.” Though the theory of free speech sketched out in this book is, to be sure, part of a larger portrait concerning freedom generally, I want to flag a few points that may be of interest our to readers.

There is much of value in A Philosophy of Freedom concerning everything from the meaning of critique to the meaning of John Stuart Mill’s “harm principle.” But what most captured my attention and interest was Svendsen’s discussion of tolerance, a concept he finds key to the principle of free speech in a democratic culture.

What does it mean for a liberal society to be tolerant, truly tolerant? Among other works, this question was examined in Professor Scanlon’s The Difficulty of Tolerance (2003) and two books edited by Raphael Cohen-Almagor: The Scope of Tolerance: Studies on the Costs of Free Expression and Freedom of the Press (2006) and Liberal Democracy and the Limits of Tolerance (2000).

Now Professor Svendsen offers his own answers; he begins by way of etymology: the word derives from the Latin tolerantia, meaning “to abide or endure.” The word is also associated with pain. By that measure, to be tolerant is to suffer the agony of words or ideas or forms of expression that are hard or even painful to bear. If speech does not really bother or offend us,  Svendsen argues, then there is no need to be tolerant. By contrast, and as John Locke stressed in his Letter Concerning Toleration (1689), toleration is hard to stomach; it eats away at our moral, political, cultural, or ideological core.

Professor Lars Svendsen

As Professor Svendsen sees it, toleration requires three things: “(1) that an individual take a negative view of something; (2) that it is in the individual’s power to do away with or oppose it; and (3) that the individual refrains from doing just that.” If that is the conceptual yardstick, at least two problems arise. First, there is (as I tag it) the problem of false fidelity. That is, though we claim to be tolerant, we are often intolerant. And that’s the rub — the problem of a society losing its toleration for toleration. Second, there is (again, as I label it) the problem of confused fidelity. Or as Svendsen puts it: “the tolerance idea has degenerated in our day” — it is  to commonly “interpreted to mean some form of approval, or at least ‘recognition,’ of that which one tolerates.” Of course, this “is completely to confuse the logic of tolerance . . . .”

To navigate these jurisprudential waters Svendsen emphasizes the difference between legal tolerance and moral tolerance. That we yield to the former does not mean that we must succumb to the latter. Hence, one might tolerate hate speech as a legal matter but rail against it as a moral matter. In other words, to draw upon Professor Svendsen’s words, “we can both defend the right to express something and criticize the expression itself.” The other side of this conceptual coin is the Brandeisian idea that “the remedy to be applied is more speech, not enforced silence.” These are lessons that are often forgotten as evidenced by everything from campus speech codes to attempts to silence non-fradulent commercial speech. And what about counter speech when it comes to the likes of the Westboro Baptist Church folks? Some pursue that First Amendment path (see here) while others, like Senators Harry Reid and Mitch McConnell and 40 members of Congress, prefer to abridge such speech (see here — Walter Dellinger was their lead lawyer).

A few final thoughts: Can we really separate morality from law? And what would that mean? Are we okay with moral relativism? These are not rhetorical questions. Hardly. But they are questions we need to consider. In United States v. Playboy (2000) Justice Anthony Kennedy tendered one answer: “The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”

Then again, and as Professors Steven Shiffrin and Jesse Choper have asked in their First Amendment casebook: “Should the First Amendment be a means of institutionalizing a national commitment to the value of tolerance? By tolerating the intolerable, would we care out one area of social interaction for extraordinary self-restraint and thereby develop and demonstrate a vital social capacity? And “wholly apart from any message that group libel statutes signal about our polity, do group libel statutes safeguard individual rights to dignity that outweigh any expressive interest in this context?”

Perhaps we might Professor Svendsen to share his thoughts on such matters.  Stay tuned.

→ See also: Frederick Schauer, “Modeling Tolerance” (2014)

First Amendment Awards

• “James Foley honored with First Amendment Award,” WMUR-ABC, Nov. 12, 2014
• Jonathan Shorman, “Topeka lawyer Mike Merriam to be honored for work on First Amendment issues,” CJOnline.com, Nov. 17, 2014

New & Forthcoming Scholarly Articles

• Jeffrey M. Skopek, “Reasonable Expectations of Anonymity” (forthcoming in Virginia Law Review, 2015)
• Frederick Schauer, “On the Distinction between Speech and Action” (Virginia Public Law and Legal Theory Research Paper, Oct. 2014)

Quick Hits

• David Moshman, “Civility, Free Speech, and Israel,” Huffington Post, Nov. 19, 2014
• Charles Haynes, “First Amendment belongs to students, too,” Herald Net, Nov. 19, 2014
• Greg Sterling, “Another Court Affirms Google’s First Amendment Control Of Search Results,” Search Engine Land, Nov. 17, 2014
• Dougas Kessel, “Free speech should never wait its turn,” Columbia Spectator, Nov. 17, 2014
• Tom Fitton, “FCC Versus Free Speech,” Breitbart, Nov. 17, 2014
• Abraham H. Miller, “Free Speech v. Political Correctness,” Gatestone Institute, Nov. 15, 2014
• “Protecting First Amendment liberties at and beyond our borders,” Nov. 14, 2014 (interview with Professor Timothy Zick re his new book The Cosmopolitan First Amendment)
• Gene Policinski, “First Amendment: Seeing the news—from every angle—is necessary to report it,” GazetteXtra, Nov. 6, 2014

Last Scheduled FAN Column: #40 — “Steve Shiffrin & Bob Corn-Revere debate ‘What’s Wrong with the First Amendment?‘”

Next Scheduled FAN Column: Wednesday, November 26, 2014.