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April 07, 2014

ACLU Liberal Floyd Abrams: "Liberal" Justices' Embrace of "Collective" Right to Free Expression is "Disturbing"

Apparently Breyer has been pushing to make Free Expression a "collective" right, subject to a veto from the majority, for some time.

But it was only in the McCutcheon case that he found three other "liberals" willing to endorse his bizarre theory.

In his book Active Liberty: Interpreting Our Democratic Constitution (2006), Justice Breyer offered an overview of the First Amendment which posited that its primary purpose was not to protect speech from government control or limitation but “to encourage the exchange of information and ideas necessary for citizens themselves to shape that ‘public opinion which is the final source of government in a democratic state.’” A statute limiting independent spending on political speech is thus defensible against a First Amendment challenge and indeed serves First Amendment interests since it “facilitate[s] a conversation among ordinary citizens that will encourage their informed participation.”

In his dissenting opinion in McCutcheon, Breyer takes that a step further, concluding that “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.” (emphasis in original). The First Amendment, he maintains, must be understood as promoting “a government where the laws reflect the very thoughts, views, ideas and sentiments, the expression of which the First Amendment protects.”

Worth reading in full, as is Abrams' full piece. (The first link has excerpts and additional quotes from other writers.)

It is difficult to read the McCutcheon dissent without recalling two of the Court’s landmark First Amendment rulings of the past. Both were unanimous. Both would be at risk if the First Amendment were somehow viewed as anything but a limitation on the government’s power to limit speech, even in the supposed service of “preserving democratic order,” vindicating “collective speech,” or the like.

They really like government power, and they really don't like individual liberty.


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posted by Ace at 12:32 PM

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