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April 03, 2014

Justice Breyer Pens a Remarkable Dissent in the Campaign Finance Case, Arguing that Free Expression is a Collective Right to be Permitted Only to the Extent It Furthers the "Will of the People"

And he got the three "liberals" to agree with him on this proposition.

[W]hy 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.

...

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).

You'll see here that Breyer does not accept that free expression is a natural right. Instead, he recognizes it as a right (or perhaps a "right") only insomuch as it furthers the end of what he would characterize as a properly-functioning government.

This is important. Free-speech liberals crusade to push an absolutist position, in which the government does not get to weigh in on the social or political usefulness of one's speech, because they do not trust the government (a highly interested party) to make such decisions, and further, because the right to speak and believe as one wishes is a natural right, descended from God, not permitted to a man by a benevolent government (so long as he uses that right "properly").

Breyer subscribes to the notion that this is a collective right (or "right"), and is only a true right to the extent it furthers the ends of the collective.

Thus making Free Expression subject to a vote of the majority of the collective -- which makes it not a right at all.


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.

Dave Bernstein at the Volokh Conspiracy calls Breyer's position not just wrong, but absolutely "dangerous," noting that there are now four votes on the Supreme Court for the proposition that speech is now a sort of public good held in a collective trust, to be limited or banned whenever the majority feels that the speech in question might not be being used in furtherance of the proper ends.

Bernstein traces Breyer's dangerous claims to the Progressives of the early twentieth century, who were in fact hard-core collectivists (approving of fascism -- my words, not his) and who were always skeptical of this "right to free speech," worrying that people could be misled by false speech, and so needed to be protected from such, if their glorious plans were ever to come to fruition.

The Progressives long attacked liberals for fetishizing speech rights -- aren't speech rights merely a means to the end of enlightened progressive governance? -- and only bought into the liberal view when it served their interests, when Wilson began jailing Reds and so forth.

And for many years, Progressives sort of pretended to be in favor of free speech, not out of any conviction, but probably more due to just not wanting to be too obvious about reversing their position on free speech the moment they no longer had fear of the state, but instead now wished to use the power of the state to shut down those engaging in Wrongful Speech.*

But the masks are now all coming off now.

It's a dark day for freedom. Brendan Eich has stepped down from his brief tenure as Mozilla's CEO -- you see, Mozilla didn't realize how upsetting Eich's previous use of his right to free speech would upset the "Mozilla community," so the Community has decided to punish him for this expression of his beliefs, by taking away his job.

Oh, they claim this decision was Eich's. Sure. Whatever.


The important thing to remember is that "The Community" gets to decide if your speech is helpful to "The Community's" political goals. If it is helpful, then you have the right to free speech.

If not, not.


* I've mentioned previously that there's a new book on the history of "progressivism" that discusses the Progressive-Liberal split, then the Progressive-Liberal tactical alliance.

I'm not sure how many actual "liberals" there are now on what is increasingly-erroneous called "the liberal left." Most seem to have adopted the Progressives' view that to permit an opponent to speak freely is a sign of weakness and cowardice.

After all, if you are strong in your convictions, you won't let some girly adherence to procedure and civil rights impeded you in your quest.

Interesting Thought: From "NotCoach."

Honestly I think this is a new way to attack the 2nd Amendment, and Taranto points it out. If we redefine the 1st as a collective right it is only a short step to redefine all enumerated rights as collective.

Indeed, but you know what? I think they're sufficiently hostile to the First Amendment to wish to make it a "collective" right, even without the additional inducement of providing a backdoor manner of making the Second Amendment a "collective" right, too.


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posted by Ace at 03:40 PM

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