Breyer’s Dissent in Sorrell and Carolene Products

In Justice Breyer’s dissent in Sorrell v. IMS Health, he cited United States v. Carolene Products, a Fifth Amendment due process case from 1938, for the proposition that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators.” Breyer adds, “To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial message) would work at cross-purposes with this more basic constitutional approach.”

The obvious problem, not directly addressed by Breyer, is that Carolene Products also states, in famous footnote 4, that “there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” The Court ultimately concluded that it should stringently review legislation coming within the purview of the First Amendment. So it would seem that the lesson of Carolene Products, for the purposes of Sorrell, is that while the rational basis test applies to run-of-the-mill economic legislation, once the First Amendment is implicated heightened scrutiny applies. The Sorrell majority is therefore correct.

Breyer has an implicit response, which is that the core of the First Amendment is the protection of the “marketplace of ideas,” which reflects “the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted.”

So a little history. The idea that the First Amendment is primarily about supporting the democratic process goes back to the Progressive era. Before World War I, most Progressive* jurists (Learned Hand excepted) opposed constitutional protection for freedom of speech for the same reasons they opposed constitutional protections for liberty of contract–they opposed judicial interference with the popular will. Herbert Goodrich’s views reflected the dominant Progressive attitude: “The same kind of argument and the same line of thought which upholds a law which restricts a man in the contracts he may make upholds a law limiting the exercise of his tongue when the majority wills it.” As late as June 1918, Holmes told Learned Hand that free speech “stands no differently than freedom from vaccination,”–the same example he used in his famous Lochner dissent.

Most Progressives eventually came around on freedom of speech for two reasons. First, they were traumatized by President Wilson’s suppression of leftists and dissidents during World War I. Second, Zechariah Chafee and others developed a theory of free speech that differentiated it from what they thought of as the obsolete, individualist, natural-rights based liberties of the American past. Freedom of speech–unlike, say, liberty of contract, or property rights–should receive constitutional protection not because it was an inherent individual right, but because of the importance of political speech to the functioning of a democracy. It helped that Justice Brandeis, in particular, supported this theory of free speech because he thought that the more his favored Progressive causes were publicly discussed and debated, the more popular support they would garner.

So here’s the irony. Breyer cites Holmes’s Lochner dissent for the proposition that when the USSC reviews economic regulations, it resulted “in the constitutionalization of economic theories preferred by individual jurists.” But the idea, adopted by Breyer, that the core of the First Amendment is about the marketplace of ideas and enhancing democracy, and therefore does not include commercial speech, is itself a judicial construct, based on the political theories preferred by Chafee, Holmes, Brandeis and other Progressives–and undoubtedly Breyer himself.

However, the First Amendment itself says nothing about democracy promotion or the marketplace of ideas. It refers only to the “freedom of speech.” Reasonable minds can certainly disagree about what the “freedom of speech” includes, and what standards the judiciary should use in scrutinizing laws that infringe on that freedom.

But it’s a bit rich for Breyer to first accuse the Court of risking a return to an era when the Justices relied on their own ideology to interpret the Constitution, while meanwhile insisting that the First Amendment’s scope must be limited by an atextual theory of interpretation that was invented by ideologically motivated judges and legal scholars in the late 1910s and early 1920s, and that just-so-happens to be consistent with Breyer’s own ideological preferences.

*It’s tiresome to keep repeating this, but when I talk about “Progressives” in the early 20th century, I’m not talking “people who had ideological preferences that would place them comfortably on the left-liberal side of things in 2011,” but people who were ideological fellow-travelers with the Progressive movement of the Progressive era, most of whom had at least some beliefs that modern left-liberals would find absolutely appalling, and indeed disqualifying for a modern progressive. It’s annoying that modern left-liberals have decided to call themselves “progressives”, thus making it virtually impossible to talk about the original Progressives without confusion.