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

Author:Pomerance, Benjamin
Position:II. Justice Breyer on Freedom of Speech: A Sampling of Breyer's Free Speech Jurisprudence on the United States Supreme Court I. Ashcroft v. American Civil Liberties Union through AA. Walker u. Texas Division, Sons of Confederate Veterans, p. 438-474

I. Ashcroft v. American Civil Liberties Union (258)

The Child Online Protection Act contained multiple provisions aimed at protecting children from accessing sexually obscene materials on the Internet. (259) Previously, the Court had invalidated the Communications Decency Act of 1996, a statute with similar objectives, because the Court found that less speech-restrictive alternative solutions were available. (260) In answer to the Court's objections, Congress passed the Child Online Protection Act criminalizing the "knowing posting" of online materials that were "harmful" to individuals under age seventeen without providing safeguards to restrict minors from accessing such material. (261) The law defined "harmful" as any content that "the average person, applying contemporary community standards," would deem appealing to or pandering to "the prurient interest," and represents, without any "serious literary, artistic, political, or scientific value for minors," an "actual or simulated" lewd or sexual act "in a manner patently offensive with respect to minors." (262)

The plaintiffs sued the federal government, claiming that the same problems that invalidated the Communications Decency Act of 1996 continued to plague the Child Online Protection Act as well. (263) After a federal district court issued a preliminary injunction against enforcing the law, the United States objected, claiming that the district court abused its discretion and arguing that the law guarded against child pornography, a form of speech receiving very little First Amendment protection, as well as other forms of obscenity against which minors needed state-provided protection. (264)

In a 5-4 decision, the Court agreed with the plaintiffs. (265) Applying strict scrutiny, Kennedy wrote in his majority opinion that "there are a number of plausible, less restrictive alternatives to the statute." (266) For instance, Kennedy stated that "[b]locking and filtering software" would prove less restrictive, but just as effective in meeting the compelling governmental interest of safeguarding minors against obscene content. (267) While conceding that such software was not flawless, Kennedy noted that the government did not provide "specific evidence" demonstrating that using this software would undermine the government's compelling interests in protecting minors. (268) Given the broad restrictions on speech and expression that this law imposed, and considering the government's failure to sufficiently reject less restrictive alternatives as inadequate, Kennedy concluded that the statute posed constitutional problems, and thus the district court did not abuse its discretion in issuing the preliminary injunction. (269)

Breyer dissented. (270) Joined fully by Rehnquist and O'Connor, and partially by Scalia, he argued that the Court overstepped its authority by second-guessing Congress's research and expertise in passing this statute. (271) Applying the test for "obscene" speech first articulated in Miller v. California, (272) Breyer concluded that the Child Online Protection Act targeted "legally obscene material" that did not receive First Amendment protection, "and very little more." (273) In addition, Breyer emphasized that the Child Online Protection Act did not absolutely ban all online content that was "harmful" to minors. (274) Instead, parties providing the "harmful" content could apply programs verifying age of users "using a credit card, adult personal identification number, or other similar technology." (275) If the content provider developed "an Internet screen that minors, but not adults, will find difficult to bypass," then the provider would be in full compliance with this law. (276)

Breyer stated that such measures did impose certain burdens, both financial and administrative, upon content providers and adult Internet users. (277) However, he determined that on balance, "the Act at most imposes a modest additional burden on adult access to legally obscene material, perhaps imposing a similar burden on access to some protected borderline obscene material as well." (278) The costs involved were small, Breyer wrote, and the fears that adult viewers might become "embarrassed" by directly requesting such content from Internet providers held no First Amendment bearing. (279) Additionally, he noted that the Court in past decisions had discussed several problems with "blocking" software, including the software's ability to reject constitutionally protected speech as well as the speech that the government had a compelling interest to restrict. (280) Thus, the blocking software did not truly qualify as an alternative solution, as using it and stopping there would be the equivalent of improving nothing, as this software existed prior to the law's passage. (281) As the government had articulated a compelling interest and demonstrated that this law was the least restrictive plausible means of meeting that compelling interest, Breyer concluded that the law satisfied the First Amendment. (282)

However, Breyer did not stop there. Instead, he added a final section to his dissent, chastising the majority for ruining any chance of a "constructive discourse between our courts and our legislatures." (283) According to Breyer, the majority's opinion failed to allow the government an option "other than 'ban totally or do nothing at all"' in this particular area. (284) Pointing out that "the obscene and the nonobscene do not come tied neatly into separate, easily distinguishable, packages," Breyer concluded that the Court's ultimate holding hamstrung prosecutors from enforcing a "middle way" in which providers of obscene content could restrict access to children while still providing it, after meeting some small burdens, to adults who lawfully wished to see such material. (285)

  1. United States v. American Library Association (286)

    The Children's Internet Protection Act required libraries seeking federal funding to install "filtering software" on their computers. (287) Such software would "help prevent computer users from gaining Internet access to child pornography, obscenity, or material comparably harmful to minors." (288) The American Library Association contended that the law restricted their patrons' rights under the First Amendment to view Internet content and communicate online freely. (289) In rebuttal, the federal government argued that it maintained a compelling interest in safeguarding young library users against inappropriate and obscene online content. (290)

    By a 6-3 margin, the Court upheld the law. (291) In his opinion for the controlling plurality, Rehnquist stated that unlike books, Internet sites are too vast in number for public libraries to make conscious choices of precisely what material to give customers in furtherance of the library's traditional educational mission. (292) Therefore, a library's categorical exclusion of certain types of websites was not unusual or abnormal. (293) Given that many libraries exclude pornographic books and periodicals from their collections, decisions to ban the same types of material from their computers did not overly burden the speech and expression rights of their customers. (294) While filtering software could potentially censor constitutionally protected speech that ranged beyond the targeted categories, an adult patron could ask the librarian to temporarily disable the filter "'to enable access for bona fide research or other lawful purposes.'" (295) Thus, the restrictions under the law did not unreasonably restrict the First Amendment rights of library patrons. (296) Since the law did not require libraries to commit an unconstitutional act to receive the federal funding, the statute was therefore a valid exercise of Congressional power under the Spending Clause. (297)

    Breyer agreed with the majority's holding. (298) However, he wrote a solo concurring opinion calling for the application of "heightened" scrutiny, but not strict scrutiny, when evaluating the facts of the case. (299) The burden imposed on library patrons in needing to ask a librarian to enable access to the sites was small, Breyer concluded, while the interest in preventing child pornography and safeguarding minors against obscene content was "legitimate, and even compelling." (300) On balance, Breyer concluded that the law was proportional to the means sought, and thus satisfied the free speech demands of the First Amendment. (301)

  2. Nike v. Kasky (302)

    Various commentators claimed that Nike shoes were made in factories that instituted sweatshop conditions and multiple unfair labor practices. (303) Nike claimed that the allegations were wrong and issued rebuttals through press releases, letters to institutional buyers, and letters to the editor. (304) The commentators, in turn, asserted that Nike's claims were false, and took legal action against Nike for misleading the public through statements that were aimed at convincing people to continue buying Nike goods. (305) In a 5-3 decision, the California Supreme Court determined that Nike's denials qualified as "commercial speech," thus allowing Nike to be punished if their statements actually were false, and remanded the case for further proceedings. (306) Nike then appealed to the United States Supreme Court. (307)

    The majority of the United States Supreme Court's justices, however, refused to issue a decision on this issue. (308) Instead, the majority held that the California high court had not delivered a final judgment in the case, reaching only the determination that Nike's speech in question was in fact commercial speech. (309) Since the lower state court now held the power to review the matter again, including rendering a decision about whether Nike's statements were misleading to the public, the Court's majority decided that they lacked the authority to step in and decide the case. (310)

    Breyer dissented. (311) Joined by O'Connor, he stated that the Court not only could...

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