Academic journal article Albany Law Review

An Elastic Amendment: Justice Stephen G. Breyer's Fluid Conceptions of Freedom of Speech

Academic journal article Albany Law Review

An Elastic Amendment: Justice Stephen G. Breyer's Fluid Conceptions of Freedom of Speech

Article excerpt

"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. …

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