Stephen Breyer and the First Amendment as Legal Doctrine

  • Mark Tushnet


Writing in 2005, Justice Stephen Breyer outlined the principles that animate his interpretation of “our democratic constitution.”1 He focused on several areas of constitutional doctrine, including two areas of free speech doctrine, namely the law dealing with campaign finance regulation and the law dealing with the regulation of commercial speech. In addition, he defended the broad outlines of the Court’s categorization approach to free speech, which the justices employ to distinguish between political speech and commercial speech. As Breyer explained, the reason for this approach is that regulations of political speech pose a threat to active liberty while regulations of commercial speech do not. “[I]f strong First Amendment standards were to apply across the board, they would prevent a democratically elected government from creating necessary regulation,” Breyer wrote, “[but] to apply across the board uniform First Amendment standards weak enough … [for commercial speech] would undermine the First Amendment so much that it would not offer sufficient protection for the free exchange of ideas necessary to the health of our democracy.”2


Categorical Rule Free Speech Terrorist Organization Violent Video Game Political Speech 
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  1. 1.
    Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Knopf, 2005), 5.Google Scholar
  2. 7.
    See Mark Tushnet, “Justice Breyer and the Partial De-Doctrinalization of Free Speech Law”, Harvard Law Review 128 (2014): 508–516Google Scholar
  3. 92.
    For a political history of originalism, see Jonathan O’Neill, Originalism in American Law and Politics: A Constitutional History (Baltimore, MD: Johns Hopkins University Press, 2005).Google Scholar
  4. 95.
    For a more general discussion, see Mark Tushnet, “Heller and the Critique of Judgment”, Supreme Court Review 2009 (2008): 61–87.CrossRefGoogle Scholar

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© Helen J. Knowles and Steven B. Lichtman 2015

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  • Mark Tushnet

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