December 4, 2006

Justice Stephen Breyer, No Friend of the First Amendment

Carroll Andrew Morse

Here is Supreme Court Justice Stephen Breyer, not really making a whole lot of sense as he discusses how he interprets the Constitution, on Fox News Sunday

If the text is clear, you follow the text. If the text isn't clear, you have to work out what it means. And that requires context.

The freedom of speech. Do you know what it means? Basically. But you don't know its entire content, and it doesn't tell you itself. Those words, "the freedom of speech," "Congress shall pass no law abridging the freedom of speech." Neither they, the founders, nor those words tell you how to apply it to the Internet.

This is a flawed example of whatever point Justice Breyer is trying to make, since there is nothing unclear about applying the principle of freedom of speech to the Internet. Written articles are speech, whether they are distributed on newsprint or via the Internet. Video and audio recordings are speech, whether they are transmitted over a broadcast network or over the Internet. And Congress is Congress, whether it is trying to regulate a newspaper, a television station, or the Internet. Ergo, Congress should pass no law abridging the freedom of speech on the Internet.

So on what basis does Judge Breyer believe that the rules for the Internet should be different from the rules for any other speech-transmission medium?

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This could easily be taken out of context. It just sounds like Breyer is reflecting on the changing technology of the country and how the founders could not have possibly foreseen the developments. The Judiciary has the responsibility of adapting with the nation. Breyer is a pragmatic justice. This Morse post jumps to a quick conclusion by a superficial analysis. Can you cite specific opinions by Breyer where his opinion is against speech?

Posted by: Ted at December 5, 2006 1:10 PM


It just sounds like Breyer is reflecting on the changing technology of the country and how the founders could not have possibly foreseen the developments.
That makes no sense. How does the principle of freedom of speech apply any more or less to something printed with a printing press than it does to something published electronically?

2. Breyer voted to uphold the McCain-Feingold law, deciding that his personal policy preferences override the clear language of the Constitution which says Congress shall make no law abrdiging the freedom of speech.

Posted by: Andrew at December 5, 2006 1:25 PM

Speech is speech, Ted and Justice Breyer. Are you saying it's fine to say "George Bush stinks" in a newspaper but if you say it on a blog, it's okay that they come and arrest you?

Posted by: SusanD at December 5, 2006 8:30 PM

The Judiciary is a bit more complicated than the more political branches of our government and you are vastly over simplifying the entire process for dramatic emphasis. One cannot analyze the opinions and dissents of the Justices as completely analogous to votes in Congress.

Let me preface further comments with the fact that I firmly believe your conclusion on Breyer is incorrect. I don't think there are direct rulings on this issue, but in the terrorism cases he has proven to be concerned with individual liberites and rights--in particular Hamdan v. Rumsfeld and Hamdi v. Rumsfeld. In which he ruled against the current methods of detainment.
Now first lets get the entire amendment down:
"Congress shall make no law respecting an establishment of religion, or prohibting the free exercise thereof; or abriding the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
All justices agree that the word "congress" applies to all the states through the 14th Amendment so it is universally applicable. Furthermore, the language of "free exercise" and "peaceably to assemble" imply the unstated freedom of association which is necessary for speech.
The Judiciary draws some lines with fighting words and hate speech. However, political speech is UNIVERSALLY protected including the advocacy of government uphevals.

This is a complex issue, and you cannot oversimlify. Justice Breyer is one of the more libertarian minded members of the Court. If you have specific language to prove otherwise then by all means present it.

Finally, the wire-tapping of the Bush Administration might be limiting free speech. If your phone can be listened too, you might be cautious about what your saying. It suppresses speech. If anyone is acting against speech it is some of the more conservative factions like Thomas who agrees with uncontrolled presidential power (Scalia is libertarian in this regard.)

There is a reason this is a political branch. Save your "activist judge" speech for the ignorant and gulliable.

Posted by: Ted at December 6, 2006 4:57 PM

There is a misnomer in my last paragraph. It should read "this is a non-political branch." I'm referencing how the court is more insulated from passion and is more delibrative.

Posted by: Ted at December 6, 2006 5:00 PM


There is no over-simplification. Andrew raised the question of freedom of speech.

I support "individual liberties and rights". But it is unclear why you are bringing these matters, along with detainment issues and the 14th Amendment, into this discussion. And while the Bush administration's wire tapping program is certainly overreaching and probably illegal, it is a stretch to characterize it as a curb on free speech. More to the point, it does not pertain to the subject of the post, Justice Breyer, but seems like a convenient, take-a-whack-at-Bush non-sequitur.

Much of the constitution is simple and straightforward for a reason: so that no one can complicate our rights away. Andrew is correct to ask his concluding question.

I have one for you. If Justice Scalia or Dick Cheney had said what Justice Breyer said, would you have defended them also?

Posted by: SusanD at December 6, 2006 10:56 PM

1. The judiciary isn't inherently more complicated than any other branch of government. Asserting so is just a way to try and short-circuit criticism of the courts.

1a. Here's Nat Hentoff talking about former Supreme Court Justice Hugo Black...

Justice Black was never without a blue paperback copy of the Constitution. When a liberty was threatened, he would slam the Constitution on his desk and -- quoting the first line of the Bill of Rights, "There shall be no law" -- he would thunder: "No law means no law!"
It didn't seem "complicated" to him.

2. The rest of your comment basically makes my point. If Justice Breyer rules that the first amendment protects the right of foreign terrorists to make phone calls, than it does. If Justice Breyer rules that the first amendment does not protect certain forms of campaign speech, than it doesn't. Ergo, there is no freedom of speech, only freedom to do what Justice Breyer approves of.

3. And nothing in your comment addresses my original question of why speech transmitted via the Internet should be treated differently from speech transmitted by any other medium.

Posted by: Andrew at December 7, 2006 10:12 AM

I've said nothing to contradict the fact that freedom of the speech should apply to all forms of media.

Wire-tapping has a chilling affect on freedom of speech. This is evident in UCLA vs. NSA.

I tend to agree with Scalia on detainment issues and will defend him if he is line with what I believe. His orignalist approach works for him from time to time.

My point earlier was that you can't treat the judiciary as if it were congress.

Posted by: Ted at December 7, 2006 3:47 PM