Supreme Court

Justice Stephen Breyer's Hostility to Individual Rights

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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.

Read the whole thing here. I explain why liberals shouldn't expect Breyer to become their "Scalia of the left" here.

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70 responses to “Justice Stephen Breyer's Hostility to Individual Rights

  1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging 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.

    Hmmm…. Nope, I don’t see any “unless you have a rational reason” subordinate clause in there. Just “no law”. Pretty succinct.

    1. Even without the absolutist viewpoint, it’s positively criminal not to use strict scrutiny in speech cases. It’s not even a debatable question what the standard should be or that even legitimate government restrictions on speech rights, where allowed, have to be narrowly tailored to fit that supposedly legitimate interest.

      Without extreme deference to the rights in question, we have next to zero protection.

    2. It’s the semicolons. They are like, so old that no one can possibly make any sense of them.

      1. I believe they are Oxford semicolons, hence the confusion.

    3. You’re reading it wrong.

      When it says “no law” it means “laws”.

      Just as “shall not be infringed” means “shall be infringed”.

      The negation is silent.

      1. SILENT NEGATION MEAN STEVE SMITH ALWAYS GET CONSENT, ALWAYS!

        1. But then its not rape… And if it’s not rape, are you still STEVE SMITH?

          1. Truly, this is the vexing philosophical question of our era.

            1. IF STEVE SMITH RAPE IN FOREST AND NO ONE AROUND TO HEAR, DO STEVE SMITH VICTIM STILL MAKE SOUND?

              1. Only STEVE SMITH knows the answer to that question.

    4. But, as the Indiana Supreme Court so helpfully pointed out, that document can and should be thrown out when it’s prejudicial to “good public policy”.

      I actually had this debate at a survivalist convention recently; the guy was specifically talking about outlawing all Muslims, and kept saying that the constitution is not a “suicide pact!” That was the whole of his argument. Freedom is a nice abstract theory, but should always immediately be shunted aside if it hinders the pursuit of enemies or “good public policy”.

      1. …the constitution is not a “suicide pact”!

        That’s right. Giving up your rights for “security” is.

    5. Congress didn’t make the law in question, so a literal interpretation of the text isn’t violated by this law.

      1. That’s not correct, of course, given the 14th Amendment. Not to mention that state constitutions generally have similar or more restrictive language.

        1. The 14th amendment transformed state legislatures into Congress? I definitely don’t see that in the text of the 14th either.

          (Yes, I’m being disingenuous here… I’m pretending to be taking the 1st amendment literally, as the previous commenters purport to (except they do it quite selectively)).

          1. What weakens the absolutist position, of course, is that we’ve never actually treated the First Amendment as a complete bar on some restrictions on speech. Defamation, perjury, copyright infringement, treason, and a number of other expression-limiting crimes or torts were all in existence at the time the Constitution was ratified, so the Founders clearly didn’t view “Congress shall make no law abridging. . .” as an absolute prohibition.

            That all said, there’s very little I think the government should be permitted to restrict at all when it comes to expression, and in those few cases, what government should be allowed to do should be very, very limited.

            1. Well, within 8 years of the passage of the BoR, Congress passed the Alien and Sedition Acts, so I don’t know the utility of looking at how the early republic behaved for a guide to what the BoR protects. But I do agree that restrictions on speech should be few and far between. Things like threats and perjury, which respectively militate against the basic functioning of society and debilitate the functioning of the justice system, should not be protected. I would also include fraud in this list though I know some here argue that fraud is not really a speech act. But it’s kind of hard to explain away threats as anything but speech.

    6. We don’t see the problem here.

    7. But… but… Citizens United!!!ONE!1!!

  2. Breyer is a schmuck on several aspects of speech issues, and he probably takes the wrong tack on this one, but I’m still not convinced this had anything to do with free speech. Freedom of speech does not imply the right to an audience. Fundamentally the majority is saying that the video game makers have a right to have minors in their “audience”, which is a very strange reading of the amendment indeed.

    1. Tulpa, I’m really not sure you want to make this argument…

      1. But I am sure!

    2. “You can print a newspaper but you don’t have a right to have any subscribers!”

      “You can run a blog but you don’t have a right to have people view it!”

      “You can make a movie but you don’t have a right to have an audience!”

      1. Ah, but those restrictions make it impossible to have any audience. A video game maker can speak effectively without having minors in their audience.

        1. So then aren’t you really just falling back on the Justice Thomas “rights don’t fully (or at all) apply to minors” decision? Not Justice Breyer’s, incidentally.

          1. Basically. I haven’t read Breyer’s dissent, so it’s probable that he opposes the decision for what I consider the wrong reason.

            Though you do need more than just the traditional concept that minors don’t have a full gamut of rights (or at least that these rights are mediated by their parents). You also need that the game makers have no right to have minors in their audience (and in this case it’s possible to prevent minors from being in the audience without preventing adults).

            1. But minors don’t have a right to the game. Their parents can always take it away from them.

        2. A video game maker can speak effectively without having minors in their audience.

          So Dance Dance Revolution should only be played by consenting adults?

    3. “Freedom of speech does not imply the right to an audience.”

      That’s why they added freedom of assembly in there too. And to protect the means of speech, they added freedom of the press. It’s almost like they foresaw what conniving tyrants would try to do to get their way.

    4. Tulpa, you keep making the whole strawman “right to an audience” argument again and again. It’s not about that. It’s about a right to speech regardless whether you do get an audience or not.

      In other words it’s about making speech available and not being criminally liable for what some parents think their son/daughter under 18 should not see, hear, or read.
      Besides, there is already precedence in all other forms of speech (movies, books, art) for that. This just brings games in line with such speech.

      1. Well I think that’s bupkus. I fail to see how there’s anything unconstitutional about banning minors from viewing books or art or movies if it’s possible to do so without imperiling adult access to those things.

        (It would be an extremely stupid law though, as the video game restriction law was)

  3. I still haven’t gotten an answer on whether the opinion here at H&R is that laws prohibiting minors from non-alcoholic strip clubs run afoul of the first amendment. By the logic of the decision, such laws are unconstitutional.

    1. What’s the issue?

    2. Re: Tulpa,

      I still haven’t gotten an answer on whether the opinion here at H&R is that laws prohibiting minors from non-alcoholic strip clubs run afoul of the first amendment.

      You will not find an answer about whatever opinion is held by H&R, since “H&R” is a blog and not a person. Would you like to hear MY opinion, or someone else’s perhaps? Then say so.

    3. I think such laws are unconstitutional.

      You do not have a right to control what your children are exposed to once they leave your property, because at that point, you are infringing on the rights of others.

      The movie business is a good example. There aren’t any laws restricting rated R movies to kids. Almost all theaters do so voluntarily.

      1. So the only way to make sure your children aren’t exposed to things that you consider harmful is to lock them in your house and homeschool them.

        Sorry, society can’t run that way.

        1. Rights are nothing in the face of expediency.

          1. What rights are violated by not allowing children into strip clubs?

            1. “What rights are violated by not allowing children into strip clubs?”

              What rights are violated by not allowing people to eat a hot dog at the ball park?
              Sorry, Tulpa, the government doesn’t ‘grant’ rights. I have every right to do whatever I want until someone is injured.

            2. The right of the property owner to decide who he will or will not allow on his property.

              And yes, society can function that way, and did for many hundreds of years before the last century. Most of those establishments would voluntarily keep children out, because the patrons probably don’t want them there.

              You seem to be trying to create a right for parents to control the use of everyone’s property in order to ensure that their children are only exposed to things of which you approve.

              This is one reason why people choose to home school. You are correct that, in order to completely shield your children from anything you consider icky, you would need to confine them to your property. Otherwise, all you’re doing is reinforcing the soccer-mom battle-cry of “For the children!” and providing an excuse to restrict access to anything that the mob finds distasteful. In the interest of protecting children, of course.

              1. Otherwise, all you’re doing is reinforcing the soccer-mom battle-cry of “For the children!” and providing an excuse to restrict access to anything that the mob finds distasteful. In the interest of protecting children, of course.

                You may have missed the part where I said this is permissible because it doesn’t restrict adult access.

                1. Then we’re arguing past eachother. You state that it’s OK as long as adults are still given access. I say, that’s still wrong for two reasons. First, it puts the burden on business owners to conduct your parenting. I suppose your argument will use majoritarianism as the justification for what would be considered tabboo and what would not be (what’s to stop people from deciding that children don’t have a right to go into ice-cream parlors, due to the “obesity epidemic”?). There is a real possibility of shit getting out of control if left up to popular votes as to where kids should or shouldn’t be allowed (regarding private property). I’m sure you see the problems already there.

                  Secondly, you’re using the gov’t to limit someone’s property rights when they are not violating anyone elses. Unless you’re going to claim that your children have a right not to see anything controversial, or that you have a right to restrict others peaceful use of their property in order to enforce your personal parenting desires upon the populace, then I’m not sure where you’re getting the justification for this.

                  1. what’s to stop people from deciding that children don’t have a right to go into ice-cream parlors, due to the “obesity epidemic”?

                    Common sense? I don’t see any constitutional problem with banning children from being served ice cream. Of course it would be a stupid law but not unconstitutional (and it would never have any hope of passing anyway).

                    Secondly, you’re using the gov’t to limit someone’s property rights when they are not violating anyone elses.

                    Property rights don’t include the right to bring minors to your property without their parents’ permission.

                    1. Common sense?

                      As a counter-argument, I give you almost the entire history of law and it’s interpretation.

                      “Man, should we leave the commerce clause this vague? What’s to stop future people from using it to mandate stupid shit that we never intended?”

                      “Oh don’t worry, it’ll be common sense!”

                      Property rights don’t include the right to bring minors to your property without their parents’ permission.

                      Correct. If I went and picked up a child and took him somewhere without his parents permission, that is kidnapping.

                      I believe you meant to say that property rights don’t provide for you to allow children onto your property without their parents permission. Which I think is debatable. You’re asking the state to assume your burden as a parent, by forcing certain businesses, based on the nature of their business, to assume that they do not have parental consent. I really don’t think we’re going to ever agree here; I think it should be up to parents to raise their children correctly, and if they choose not to homeschool or to let their kids wonder around unsupervised then that’s the risk they take, and you apparently believe it is the function of the state to enforce your personal preferences for what your children should and should not be allowed to see upon everyone else. That’s such a fundamental difference of basic belief, no debate is really going to settle it.

                    2. “I don’t see any constitutional problem with banning children from being served ice cream.”

                      Lemme guess: Commerce clause?

                    3. Lemme guess: Commerce clause?

                      We’re talking about state governments, who have general police powers. I agree that the federal govt would not be acting constitutionally if they banned ice cream for kids.

            3. The right of the business owner not to have the government or random busybodies restricting her clientele. Now if mr. strip club owner wants to keep children out (since he’s a good citizen, a parent, and doesn’t want a crowd of busybodies picketing) that’s just fine.

        2. Isn’t what is really at issue here is what obligations the state can foist upon the manufacturers/retailers of these products?

          As a parent isn’t it my resposibility to instruct my child not to patronize what I think is inappropriate and I (the parent) is responsible to give my child the consequences if he does follow my wishes?

          Should the state be issuing consequences to the manufacturers/retailers of the material and putting resposibilities on them them?

          1. No doubt, I think the video game restriction was a bad law. But it’s definitely not unconstitutional for the state to force retailers to do stuff. They force them to collect sales tax already.

            1. You already lost that argument with SCOTUS.

              1. What argument? SCOTUS ruled that the state can’t force retailers to do things? How are they still collecting sales tax and IDing for alcohol then?

        3. Actually, that is the only way. I learned to cope with that when my kids were teenagers.

          You cannot expect other people to enforce your ideals on what is or is not appropriate for your kids.

          1. Well, most of us around here don’t expect it but apparently a shitpot full of other people do. I base this solely on how many people tell me I shouldn’t wear shirts that say ‘fuck’ on them around their precious little sprogs.

    4. I have no problem with kids in strip joints:

      Unless they reach puberty, there isn’t going to be much interest on the part of the child.

      Not many minors could – or would – pay for the cover charge and $12 non-alcoholic drinks.

      I’m sure most proprietors wouldn’t want kids in their gentlemen’s clubs anyway.

      A 14 year old in a strip joint?–I wouldn’t care.

      No alcohol?–That I care.

    5. Indeed. It’s the responsibility of parents to control their kids. The law shouldn’t get in their way, but it shouldn’t be their enforcer either.

      1. Very well said

    6. By the logic of the decision, such laws are unconstitutional.

      Huh?

      The man who wrote the opinion doesn’t believe public nudity restrictions are subject to the First Amendment at all, so I’m not sure what you’re getting at. Scalia has repeatedly said that states and municipalities can regulate public nudity however they see fit.

      In addition, the first sentences in the decision assert the current case isn’t an obscenity case because the definition of obscenity doesn’t include violence. Ginsberg v. Roth, decided in 1968, allowed for legislation whereby what is considered sexually “obscene” can be determined by age-sensitive concerns. I am almost positive this is still good law.

      I can see where you’re going if you’re trying to get a coalition of justices to argue this point, but I think you’re fundamentally wrong here.

      Scotusblog’s analysis is almost exactly what I’m saying.

      Because the Scalia opinion in the violent video case drew such a sharp distinction between protecting children from violent expression as compared to obscene expression, it is far from clear that the Court will decide by the same voting lineup the case it will be reviewing on the government’s power to ban ? for the sake of protecting children ? what federal law calls “indecent” expression on radio and TV programs. Obscenity is not at issue in the new case of Federal Communications Commission v. Fox Television Stations, et al. (10-1293), but the protection from children from profanity and nudity considered harmful to them is directly at issue.

  4. Justice Stephen Breyer’s Hostility to Individual Rights

    ONLY him? What an understatement.

    The “wise” Latina and the Pillsbury Doughboy-in-drag come to mind, as well…

    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[…]

    Government will always have a “rational reason” to interfere with people’s rights. The question is if they have a VALID reason, not a rational reason.

    1. I am the STEVE SMITH of government!

      1. STEVE SMITH LIKE TO PERSONALIZE RAPE! COMMERCE CLAUSE RAPE EVERYTHING! NO RAPE-MANCE IN COMMERCE CLAUSE, AND STEVE SMITH IS ALL ABOUT THE RAPE-MANCE!!!

    2. Breyer is the worst, though.

      1. You’ve never had Blue Bunny, obviously.

        1. STEVE SMITH REMEMBER WHEN BASKIN-ROBBINS CAME IN 31 FLAVORS! STEVE SMITH ONLY COME IN ONE FLAVOR!

          1. Pepperidge Farm remembers… but maybe Pepperidge Farm could be convinced not to remember, if Pepperidge Farm gets enough hush money…

            1. Do you remember the smell of your grandma’s kitchen? Pepperidge Farm remembers. Do you remember when black people couldn’t sit at the front of buses? Pepperidge Farm remembers

  5. Shocking. A lackey for the system is hostile to supporting my rights against the system. Who could have guessed?

    1. We did it for your own good.

      1. But we still get exempted, right?

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    BuzzSave.com

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