Writing in the Newark Star-Ledger, George Mason law professor David Bernstein and Josh Blackman of the Harlan Institute take aim at Supreme Court Justice Stephen Breyer’s hostility towards the judicial protection of individual rights:
Breyer’s cramped understanding of freedom of expression is especially troubling. Longstanding Supreme Court precedents, dating to the dawn of the modern constitutional law era in the late 1930s, require the justices to be especially protective of certain “fundamental rights,” including and especially free speech.
According to Breyer, however, most laws that infringe on freedom of expression should be upheld if the government has a rational reason for interfering with free speech, an extremely forgiving and deferential standard....
The full implications of Breyer’s lassitude on civil liberties were on display last month in Brown vs. Entertainment Merchants Association. All three of Breyer’s liberal colleagues joined a seven-Justice majority holding that a California statute banning the sale of violent video games to minors violated the First Amendment.
Breyer, however, penned the dissent. Although purporting to apply “strict scrutiny,” he gave virtually no weight to the free speech rights protected by the First Amendment. Instead, he focused on the government’s interest in censoring speech deemed harmful to minors.