Welcome to the Collective: Justice Breyer turns the First Amendment on its head.

[roo_ster]

http://online.wsj.com/news/articles/SB10001424052702304441304579479393186825228?mod=WSJ_Opinion_MIDDLETopOpinion&mg=reno64-wsj

Welcome to the Collective
Justice Breyer turns the First Amendment on its head.

In his plurality opinion in yesterday's free-speech case, McCutcheon v. Federal Election Commission, Chief Justice John Roberts notes an anomaly in contemporary "liberal" First Amendment jurisprudence: "If the First Amendment protects flag burning, funeral protests, and Nazi parades--despite the profound offense such spectacles cause--it surely protects political campaign speech despite popular opposition."

We'd take the point a step further. The examples Roberts cites all involve fringe political expression. But the First Amendment also protects outré speech outside the political realm--most notably pornography, the subject of a great deal of Supreme Court jurisprudence over the past few decades, in which judicial liberals took the lead in expanding free-speech rights.

In recent years something of a consensus has emerged. When the court extended First Amendment protection to "depictions of animal cruelty" (U.S. v. Stevens, 2010) and violent video games (Brown v. Entertainment Merchants Association, 2011), the decisions were written by Roberts and Justice Antonin Scalia, respectively, for 8-1 and 7-2 majorities.

So why have the court's "liberals" adopted a hostile attitude toward political speech, which has long been understood as being at the core of First Amendment protection? In his McCutcheon dissent, Justice Stephen Breyer elaborates the theory behind this odd development.

We should note that Breyer has proved more willing than his liberal colleagues to uphold restrictions on nonpolitical speech. He was one of the two dissenters (with Justice Clarence Thomas ) in Brown v. EMA, which involved a statute restricting sales of games to minors. He also dissented in U.S. v. Playboy Entertainment Group (2000), which invalidated limits on sexually explicit cable TV programming.

But in both those cases Breyer was alone among the court's liberals. In McCutcheon, his dissent gained the support of Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. It's a familiar pattern: A series of high court rulings pitting campaign finance restrictions against free speech, beginning in 2007, have been decided 5-4, with the same majority as in McCutcheon and the identity of the dissenters varying only by virtue of changes in the court's personnel.

Yesterday's decision was fairly narrow. It invalidated a statutory provision limiting the total contributions an individual could make to congressional candidates, party committees and political action committees during an election cycle. But it let stand the limits on contributions to each candidate or committee. That means, among other things, that a contributor may now give to as many candidates as he wants, but only $5,200 apiece ($2,600 each for the primary and general election). Thomas argued for striking down the individual limits too, which is why Roberts's opinion did not command a majority.

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.

In this case they at least acknowledge the individual right exists. But then the First Amendment, unlike the Second, has no prefatory clause explaining its purpose; it simply says "Congress shall make no law . . ." Breyer has to venture outside the text to find a reason to read that prohibition equivocally.

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 Citizens United v. FEC (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.

That resolves the conundrum we noted atop this column. Fringe political speech like flag burning, funeral protests and Nazi parades is so broadly unappealing as to have no effect on "the will of the people." The same is true of nonpolitical forms of expression such as pornography, violent video games and depictions of animal cruelty. (Breyer's willingness to countenance restrictions of the first two has to do with the protection of children, not of the body politic.)

Only mainstream political expression has the potential to thwart the "collective" will, and thus, in the view of Breyer and his fellow dissenters, it alone is deserving of restriction on such a rationale. That stands the First Amendment on its head. Its purpose may be to "make government responsive," as Wilson argued, but the means by which it does so is the limitation of government power and protection of individual freedom.

The Puffington Host has a revealing quote from a politician who objects to yesterday's ruling, Rhode Island's Sen. Sheldon Whitehouse:

    "This is a court that knows essentially nothing about elections. It's the first court in a long time on which no one has ever run for office," said Whitehouse, comparing the five justices who ruled for businessman Shaun McCutcheon to "the ultimate amateur . . . who says, 'I know how to eat, so I can open a restaurant.' "

Whitehouse is arguing that the political process should be controlled by professional politicians. As Roberts notes in responding to Breyer's dissent: "The degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process." To do so would impose the will of politicians or judges on the people, not the other way around.

Again, the tail wags the dog, the minority oppresses the majority, and the COTUS is used to wipe the fourth point of contact of some leftist.

It appears more & more that engaging with an opponent that does not adhere to the rules of engagement is a recipe for abject failure. 

[Balog]

The left has made the rules of engagement pretty clear. No mercy, no quarter, and if they find out (from docs their buddies at the IRS/NSA leaked illegally) that you are committing thoughtcrime they'll go after your job and family.

The only question is how long the right will keep taking it, and bringing a pillow to a knife fight.

[brimic]

The left has made the rules of engagement pretty clear. No mercy, no quarter, and if they find out (from docs their buddies at the IRS/NSA leaked illegally) that you are committing thoughtcrime they'll go after your job and family.

The only question is how long the right will keep taking it, and bringing a pillow to a knife fight.

As overheard at a local gun show a few years back... "The government aren't the only people making lists."

If it comes to what you are saying, and I really think it will in some form, all I can say is "bring it."