An elastic amendment: Justice Stephen G. Breyer's fluid conceptions of freedom of speech.

• Author: Pomerance, Benjamin
• Position: I. The Makings of a Justice: Stephen G. Breyer's Trail to Washington and the Words that He Shares Beyond the Court through II. Justice Breyer on Freedom of Speech: A Sampling of Breyer's Free Speech Jurisprudence on the United States Supreme Court H. Ashcroft v. Free Speech Coalition, p. 403-438

"Words like 'freedom of speech' do not define themselves." --Justice Stephen G. Breyer (1)

During the past two decades, plenty of commentators labeled United States Supreme Court Justice Stephen G. Breyer a "liberal" judge. (2) Other observers, however, declared that Breyer was unexpectedly "conservative." (3) Some pundits insisted that Breyer is a "judicial activist," (4) while others claimed that he embraces traditional judicial restraint and showed "deference" to Congress. (5) A number of analysts emphatically called him "progressive," (6) while several other authorities deemed his approach to deciding cases "pragmatic" or "empirical." (7) Some announced that he is a "technocrat" with close government connections, (8) while others found that he is a "consensus builder" among his judicial brethren. (9) Writers compared him to bushels of historical figures, linking him to everyone from Benjamin Constant (10) to Zechariah Chafee, (11) Louis Brandeis (12) to Robert Bork, (13) and even Grover from Sesame Street. (14)

Still, despite all of this widely ranging and often-conflicting postulating, Breyer remains an unexpectedly enigmatic figure on the Court today. (15) This is not intentional on his part, given that Breyer is a vigorous questioner at oral arguments; an emphatic writer about constitutional interpretation and the judiciary's role in society; and a frequent speaker at events beyond the Court's marble walls. (16) Still, a clear understanding of his ideas often seems to be hiding from plain sight. On a Court frequently divided along rigid ideological and partisan lines, (17) history demonstrates that one cannot always be certain of Breyer. (18) Justice Anthony Kennedy receives considerably more attention as the "swing" vote on this bench, (19) but even a cursory jurisprudential glance suggests that Breyer seems to play closer to the political center than one might expect at first glance. (20)

Given this apparent and frequently overlooked unpredictability, questions inherently arise about what trends and patterns, if any, exist within Breyer's judicial decision-making. On a Court where so many votes debatably are foregone conclusions in politically controversial cases, (21) Breyer's perceptible independence makes him a valuable prize for any advocate whose line of reasoning finds favor with this judge. (22) An abundance of varying and often conflicting viewpoints about the varieties of arguments most likely to win over Breyer only adds to the challenge of this objective. (23)

This article seeks to contribute an element to this increasingly crowded body of scrutiny. It focuses on an area in which the Supreme Court has become particularly active throughout recent years and about which Breyer appears to hold particularly strong opinions: controversies pitting the constitutional guarantees of freedom of speech in a balancing game against competing interests asserted by the federal, state, or local government. (24) Here, too, the opinions about Breyer's hard-to-pin-down tendencies and their effects vary dramatically. To at least one reviewer, his freedom of speech decisions provides "the most important new ideas about the First Amendment on the Supreme Court since Justices Brennan and Black." (25) Others, however, bluntly label his free speech jurisprudence "dangerous." (26) Look deeply enough, and the theories about Breyer's work in this realm seem to occupy practically every imaginable point on the spectrum. (27)

Judging the merits of Breyer's freedom of speech jurisprudence, however, is not the focus of this article. Instead, this discussion takes a more empirical approach, attempting to add greater clarity to the ongoing questions about Breyer's inclinations in this area. By studying twenty-seven leading freedom of speech cases decided during Breyer's two decades on the Court, (28) and identifying patterns and trends among Breyer's voting and writing in these matters, this account aims to illustrate several key features regarding Breyer's positions on these hotly contested legal issues.

The article proceeds in three main sections. Part I looks at several attributes of Breyer's life prior to his Supreme Court appointment, and explores some of the principal features of his published writings about the law. Part II summarizes the twenty-seven free speech cases that are under review in this discussion, with an emphasis on Breyer's holding in each. Lastly, Part III identifies trends gleaned from this examination, providing information about trends, patterns, and tendencies about Breyer's decision-making in the free speech realm and showing where Breyer stands among his brethren on these ever-important constitutional issues.

1. THE MAKINGS OF A JUSTICE: STEPHEN G. BREYER'S TRAIL TO WASHINGTON AND THE WORDS THAT HE SHARES BEYOND THE COURT

   Stephen Gerald Breyer's roots run deeply into the West Coast. (29) Born into a middle-class Jewish family in San Francisco in 1938, the practice of law and the pursuit of civic ideals were part of his life from the outset. (30) His father, Irving, served as an attorney for the city's public school system. (31) His mother, Anne, an outspoken Democrat, volunteered frequently for the League of Women Voters. (32) Even as a youngster, lessons about partaking in the democratic process existed all around him. (33)

   Lessons from school evidently sunk in at a young age, too. His third grade teacher's evaluations about Breyer's proficiency in "participating and cooperating" allegedly served as pivotal tutoring about the importance of collegiality. (34) Yet Breyer stood out in other aspects as well. At age 12, he earned the rank of Eagle Scout, gaining with it the nickname of "troop brain" from the other boys. (35) In high school, he distinguished himself on the debate team, facing off against opponents like future California Governor Jerry Brown. (36)

   "[Y]ou can't escape your background, your own experiences [when deciding cases]," Breyer told an audience at New York University decades later, "[a]nd I start with Lowell High School, Class of 1955." (37)

   Before her son graduated high school, Anne Breyer talked him out of attending Harvard. (38) Fearing that he would become "too bookish," she convinced him to attend Stanford University instead. (39) After four years of substantial academic success there, he went on to attend Oxford University as a Marshall Scholar and then--after two years abroad--wound up at Harvard anyway, enrolling at Harvard Law School in 1961. (40)

   His first job after law school brought him to the chambers of United States Supreme Court Justice Arthur Goldberg. (41) A judge with generally liberal inclinations, Goldberg carved out his most memorable niche as a consensus builder, facilitating the historic merger of the American Federation of Labor and the Congress of Industrial Organizations and gaining praise in other areas--including the Security Council of the United Nations--as a gifted negotiator. (42) Interestingly, and perhaps not entirely coincidentally, several commentators refer to Breyer as a liberal consensus-building jurist today. (43)

   Also notable is the fact that Court decided one of the most famous First Amendment cases in history. New York Times u. Sullivan, (44) just months before Breyer's clerkship began. (45) In this decision, the Court unanimously declared that the First Amendment protected even inaccurate speech about a public official's conduct, provided that the speaker lacked actual malice in making the statements. (46) Goldberg wrote a special concurrence to the Court's speech-centric holding, stating that:

   In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel. (47) While it is unclear what Breyer actually thought about his boss's holding at the time, such language does bear resemblance to phrases that Breyer has utilized in his own Court opinions. (48)

   Following his clerkship, Breyer accepted a post handling antitrust cases for the United States Department of Justice. (49) During this period, he met his future wife, Joanna Hare, a psychologist from an aristocratic British family. (50) In 1967, he returned to Harvard Law School as a professor, quickly gaining a strong reputation for his teachings in administrative law. (51) The "Law and Economics" movement had already caught fire at the University of Chicago by this point, and Breyer staked out a position at Harvard on the side of regulatory reform. (52) His views demonstrated a considerably greater trust in the state than the Chicago law and economics leaders. (53) To Breyer, people should rely upon the government to utilize experts in designing rational and efficient regulatory systems. (54) Several observers compared his perspectives to those of a "European technocrat." (55)

   During the mid-1970s, Breyer sought to put those principles directly into practice. Serving as a legal counsel for the Senate Judiciary Committee, Breyer advocated for the deregulation of several industries. (56) He gained particular traction for his campaign to reduce federal regulation within the airline industry. (57) As a Democrat supporting deregulation, he surprised conservatives; as a purveyor of carefully crafted economic arguments, he won them over. (58) Before long, he became the Judiciary Committee's chief counsel. (59) He continued to provide significant policy advice to Senator Edward Kennedy, encouraging Kennedy to support deregulation of airlines, trucking, and the natural gas industry. (60)

   Yet other positions awaited. "President Jimmy Carter appointed Breyer to the U.S. Court of Appeals for the First Circuit in 1980." (61) Five years later, Breyer also began serving on the then-new United States Sentencing Commission...