The Progressive View of the First Ammendment

I didn't really pay all that much attention to the Supreme Court's election speech case yesterday.   But as I learn the reasoning that is driving the dissent by the four Justices on the Left, I am left deeply worried about the future of speech rights.

I really haven't put much time in understanding how Progressives justify strong speech protections for non-political activity (e.g. pornography) while eschewing them for political speech (in the form of multiple types of limits on the amount and timing of speech one is allowed prior to an election).  Justice Breyer, in writing for the minority in in McCutcheon, lays out what I suppose is the Progressive position.

First up, here is David Bernstein

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 â€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 â€public opinion could be channeled into effective governmental action.”  ...

Breyer adds that “corruption,” by which he means individuals engaging in too much freedom of speech via campaign donations, â€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 strikes me as both tortured and dangerous.  Once one posits that that there is some ill-defined, un-measurable value like "promotion of positive government action" can be balanced against free speech, then the government gets a nearly unlimited ability to limit speech.

James Taranto also highlights parts of the decision

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."

What is democratic "order"?  What the hell is "collective" speech?  This is the kind of thing I would expect dictators-masquerading-as-elected-officials to spout as an excuse for suppressing dissent.  After all, doesn't dissent interfere with order?  How can we have collective speech when there are these folks out there disagreeing so much?   Again from Taranto:

It's important to note that when Breyer refers to "collective" rights, what he does not have in mind is individuals exercising their rights by voluntarily collecting themselves into organizations. In fact, the prevailing left-liberal view, most notably with respect to  (2010), is that collections of individuals, at least when they take corporate form, have (or should have) no rights.

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.


  1. mesocyclone:

    This is emblematic of the progressive view of rights: they are always tied to the government. It's not just free speech, but all areas.

    This misunderstanding is why they have the bizarre and dangerous concept of "positive rights" - which always mean someone's right to someone else's money - typically but not always through taxation.

    Republicans do not have this problem. They may disagree on how far rights extend (issues like gay "marriage"), but not on the fundamental concepts.

  2. mahtso:

    Are these progressives democrats or republicans (or other)? My thinking is they are democrats, and this post shows why coke is not pepsi.

  3. norse:

    There's a lot of grey zones here. The supreme court arguments are, as legal arguments are prone to be, mostly bizarre. That said, I am not even sure I am onboard with the premise that spending money equals speech.

  4. mesaeconoguy:

    Here is the regressive mentality and perception of everything, including speech:

    1. How does this help us?

    2. Can we restrict evil Republicans/conservatives (and
    potentially libertarians[who we conflate with conservatives], especially the Kochs) from the same activity/access/process?

    Constitutionality, precedent, history, etc. do not enter into the equation. If it benefits them, they are for it, irrespective of anything else.

  5. mlhouse:

    It is sad. But look at their juris prudence overall. It wasn't the conservative judges that sided against the little guy in Kelo. They believe in the power of government and expanding the powers of government.

  6. FelineCannonball:

    I'm probably on board with the old Buckley vs. Valeo decision where campaign spending and advertising is protected speech, but content neutral restrictions (like those routinely applied to actual speech) can pass constitutional muster. One constitutional standard for college students playing music or picketers passing out leaflets and another constitutional standard for cash-money doesn't make much sense for me.

    a la volokh:

  7. Mark Alger:

    As a smash-mouth constitutionalist, I want to hit back -- twice as hard -- and press home the argument that there is no, there can BE no compelling public interest (in the words of Justice Sandra Day O'Connor) which overrides the rights of the individual. Period. End of the discussion. Breyer's assertion that civil rights must serve a collective purpose is un-American and tantamount to treason. Yes, you may think it overwrought, but that doesn't keep it from being true.


  8. norse:

    I understand the arguments re: speech and spending. I happen to not agree with them.

    I'll state upfront that I equally disagree with other restrictions placed on speech. What any person says should be free, regardless of it's provability or truth (most people are morons, so any human ought to have accomodated themselves to a healthy dose of caution during their upbringing). Say anything you will without fear, as long as I am free to ignore you.

    Spending on speech is an entirely different matter. Whereas we're all equals where it comes to our ability to individually make our voice heard, there's a large power differential as soon as you have a guy on a soapbox in one corner and a Media Mogul in the other.

    To make matters worse, as soon as substantial amounts of money are involved, differentiating between money used in support of broadcasting ideas and money involved in influencing actions becomes an unsolvable problem.

    Note that I am not implying that there should be limits on campaign financing or other contributions, that's a separate discussion.

    What I care about is that spending and speaking are sufficiently different that I am A-OK with having different laws regulating either, and that I'd prefer more debate focused on reintroducing America to actual unconstrained speech for individuals and less around making sure that Goldman Sachs can spend as many millions on the fine folks chairing the banking committee as it pleases. ;)

  9. FelineCannonball:

    By neutral restrictions I mean things like noise ordinances, sign ordinances, restrictions on leafleting in public space, restrictions on amplified sound, restrictions on assembly, restrictions on . . .. Justice Thomas has written opinions where any of this is fine, but neutral restrictions of any type on campaign spending is unconstitutional.

  10. rst1317:

    Breyer's views would help him fit in well in North Korea

  11. rst1317:

    If they're serving the collective purpose and not the individual's, they're not civil rights. People will still misuse that label but by their very definition they're no longer civil rights.

  12. mahtso:

    I think you are mistaken about the Kelo decision: JJ. Stevens, Kennedy, Souter, Ginsburg, & Breyer voted
    for the City; JJ. O’Connor, Rehnquist, Scalia, Thomas voted for Ms. Kelo

  13. mlhouse:

    No. My statement is correct. The liberal justices voted for the city and against the "little" guy.

  14. mahtso:

    I stand corrected (the double negative threw me or I did not have enough caffeine or the sun was in my eyes or ......)

  15. KipEsquire:

    This is totally analogous to the "affirmative action in education" cases. Once you define the purpose of a college as "creating a diverse environment" rather than, um, educating people, then you can justify almost any admission policy -- and the Equal Protection Clause ends up meaning the exact opposite of its plain text.

  16. mesaeconoguy:

    Smash-mouth constitutionalist.

    I'm stealing that - that's awesome.

    You're also right - Breyer is an idiot, and has been shown to be an idiot prior to this excursion into idiocy.

    The founding constitutional principle is protection of individual rights.

  17. Tom Nally:

    The right to speak freely pre-exists the Bill of Rights; it pre-exists the Constitution of the United States; it pre-exists any and all governments. It is a so-called "natural right" or, as Jefferson would call it, an "unalienable right". Since the right to speak freely exists even in the complete absence of government, its purpose can NEVER be to serve some government objective, contrary to what Justice Breyer has suggested.