All your liberties belong to us.
In short, once one adopts the Progressive view of freedom of speech as only going so far as to protect the public interest in a well-functioning marketplace of ideas, there is no obvious reason to limit reduced scrutiny of government “public interest” regulation of speech to campaign finance regulations. Nor is it obvious why the Court should give strict scrutiny to speech restrictions that don’t directly affect the marketplace of ideas, instead of just using a malleable test balancing “speech interests” versus other interests.
Not surprisingly, then, Breyer is the Justice who is least inclined to protect freedom of speech in a variety of contexts. And it’s troubling that his three liberal colleagues joined his opinion today. Josh Blackman and I wrote three years ago, “Breyer’s apparent ascendance as doyen of the Court’s liberal wing threatens to roll back decades of pro-liberty precedents, and to destroy the consensus on the Court that freedom of speech and other essential rights must not be sacrificed to the shifting whims of legislative majorities.” I hope to be a failed prophet.