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Stephen Breyer’s Collectivist View Of Free Speech

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A couple of days ago the US Supreme Court struck a blow for free speech by reversing the decision of the odious and addled 9th Circuit. The court ruled that there was no compelling reason that authorized the Congress to limit the number of candidates to which a donor could contribute. Less noticed was the direct assault on the First Amendment by the four justices who made up the minority in this case.

The Wall Street Journal, op-ed by James Taranto titled Welcome to the Collective sums it up best:

In making the case for the constitutionality of restrictions on campaign contributions, Breyer advances an instrumental view of the First Amendment. He quotes Justice Louis Brandeis, who in 1927 “wrote that the First Amendment’s protection of speech was ‘essential to effective democracy,’ ” and Brandeis’s contemporary Chief Justice Charles Evans Hughes, who in 1931 argued that “ ’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” (emphasis Breyer’s).

After citing Jean-Jacques Rousseau’s (!) views on the shortcomings of representative democracy, Breyer quotes James Wilson, one of the Founding Fathers, who argued in a 1792 commentary that the First Amendment’s purpose was to establish a “chain of communication between the people, and those, to whom they have committed the exercise of the powers of government.” Again quoting Wilson, Breyer elaborates: “This ‘chain’ would establish the necessary ‘communion of interests and sympathy of sentiments’ between the people and their representatives, so that public opinion could be channeled into effective governmental action.”

And here’s how Breyer sums it all up: “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.”

The emphasis on “matters” is again Breyer’s. We’d have italicized “collective” as the key concept. 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.

At the Volkh Conspiracy, David Bernstein writes in Breyer’s dangerous dissent in McCutcheon elaborate:

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.”

This points toward the view the modern statist movement, as epitomized by the Democrat party, has taken on individual rights. Unlike the Declaration of Independence’s bold proclamation that our rights are God-given, the statist view is that individual rights only exist to the extent that they serve the state. You can have a weapon IF you are in a state organized militia. You have freedom of the press IF you are employed by a newspaper. We see this with the scorched earth tactics used by the anti-Second Amendment groups, the homosexual privilege’s groups, the various environmental groups and assorted health Nazis, good government zealots and public nannies.

Again, from James Taranto:

The only “collective” that matters to Breyer is the one from which you cannot opt out except by the extreme measure of renouncing your citizenship: “the people” or “the public” as a whole. In Breyer’s view, the purpose of the First Amendment is to see that (in Chief Justice Hughes’s words) “the will of the people” is done. Individual rights are but a means to that end. To the extent they frustrate it, they ought to be curtailed. You will be assimilated.

We are at a profoundly dangerous point in our history. One more Stephen Breyer or self-proclaimed “wise Latina” would have relegated political speech to something that only existed to the extent that is served the latest governmental fad. If you think this is an exaggeration, go ask the Koch brothers… or Brendan Eich.

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