Justice Breyer's concurring opinion is concerning

BY GUEST COLUMN | JULY 12, 2012 6:30 AM

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Supreme Court Justice Stephen Breyer's concurring opinion in the Stolen Valor Act case raises a free-speech concern.

A defining feature of modern First Amendment jurisprudence is the content-discrimination principle. This means that the government must meet a much higher standard of review when it regulates or targets speech on the basis of content. In legal parlance, there is a difference between content-based laws and content-neutral laws.

Justice Thurgood Marshall explained this concept well in Chicago Police Department v. Mosley (1972): "But above all else, the First Amendment means that the government may not restrict speech because of its message, its ideas, its subject matter, or its content." The thinking behind this is that society does not want the government engaging in thought control, in forcing people to believe or support particular types of speech. We don't want the government distorting the marketplace of ideas.

Because of this concern about government manipulation of speech content, the courts treat content-based laws differently from content-neutral laws. When the government enacts a law that discriminates on the basis of content — a content-based law — it must pass the highest form of judicial review known as strict scrutiny. On the other hand, laws that apply across the board to all speech without regard to content — so-called content-neutral laws — are subject to a lesser form of judicial review known as intermediate scrutiny.

The terms can be confusing and even confounding to the layperson, but essentially these different standards of review often lead to different outcomes. Content-based laws generally are struck down, while many content-neutral laws are upheld. This is not always the case, but there is a significant difference between the two standards of review.

The difference between content-based and content-neutral laws is one reason Justice Stephen Breyer's concurring opinion in the Stolen Valor Act decision, United States v. Alvarez, causes concern.

The Stolen Valor Act clearly is a content-based law, as Justice Anthony Kennedy pointed out several times in his plurality opinion. Unless speech falls into an unprotected category — like obscenity or fraud — such a content-based law is subject to strict scrutiny. That is classic First Amendment analysis.

Breyer, who was joined by Justice Elena Kagan, did something much different. He said that the Stolen Valor Act should be subject to intermediate scrutiny or "proportionality" review. Breyer wrote that "the court's term 'intermediate scrutiny' describes what I think we should do." Breyer then used intermediate scrutiny to try to balance the First Amendment harm caused by the law against the substantial interests advanced by it.

Ultimately, Breyer's application of intermediate scrutiny led him to the same result as Kennedy's plurality opinion — a ruling striking down the Stolen Valor Act.

But in the process, Breyer deviated from established First Amendment law and may have caused greater harm.

David L. Hudson Jr.
First Amendment scholar

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