Don’t Throw Us into That Breyer Patch!
posted at 12:07 am on June 22, 2010 by Dafydd ab Hugh
Today, John Roberts and the Supremes upheld a Bush-era, post-9/11 law prohibiting aiding terrorist groups with any kind of “material support” — including training and even purely verbal “expert advice or assistance”:
Chief Justice John G. Roberts Jr., writing for the majority in the 6-to-3 decision, said the law’s prohibition of providing some types of intangible assistance to groups the State Department says engage in terrorism did not violate the First Amendment.
All the legal beagles will no doubt opine, offering much more authoritative analyses than mere reptiles can produce. But there are a couple oblique angles to this story that are right down our lizard holes.
First, the decision contained an unexpected (and unremarked) boot-to-the-head of Elena Kagan, President Barak H. Obama’s second Supreme Court nominee (the first was Justice Sonia Sotomayor — who of course dissented, voting to allow peaceniks to give as much verbal aid and comfort to the enemy as they wish).
First, let’s watch the New York Times carry water:
The decision was a victory for Solicitor General Elena Kagan, who argued the case in February and whose confirmation hearings for a seat on the court are scheduled to start next week.
And now, the rest of the story:
But Chief Justice Roberts said the government had advanced a position that was too extreme and did not take adequate account of the free speech interests at stake.
“The government is wrong,” the chief justice wrote, “that the only thing actually at issue in this litigation is conduct” and not speech protected by the First Amendment protection. But he went on to say the government’s interest in combating terrorism was enough to overcome that protection.
In other words, the Obamunist nominated a woman to the Supreme Court who did not even recognize what was implicitly understood by all nine sitting justices, including Obama’s first nominee to the Court: That there is a freedom-of-speech element to this case.
The only disagreement among the judges and justices who have heard the case is whether national security trumps freedom of speech in this case — not whether freedom of speech even exists! It’s a very telling lapse in judgment on Kagan’s part.
The second misaligned angle is also telling; it “tells” of the nigh-irrepressible ability on the part of liberal-activist judges, like Justice Stephen Breyer, to flip principle on its head in order to achieve a desired outcome.
Perennial hand-wringing, ultra-liberal Justice Breyer was one of the three dissenters to this decision (the others being Sotomayor and Ruth Bader Ginsburg). In fact, Breyer was so consumed by his disgust that he pointedly read his dissent aloud from the bench:
Justice Stephen G. Breyer took the unusual step of summarizing his dissent from the bench. He said the majority had drawn a false analogy between the two kinds of assistance.
“Money given for a charitable purpose might free up other money used to buy arms,” Justice Breyer said from the bench. But the same cannot be said, he went on, “where teaching human rights law is involved.”
To summarize, Breyer believes that freedom of speech is so vital, so central to what it means to be American, that it must prevail — even when that speech is intended to help our terrorist enemies, to train them to gain power advantages with words, advantages they later can exploit as a launching pad for violence. (For example, American leftists “peacefully” arguing on behalf of Hamas at the U.N. or the World Court to force Israel to loosen the Gaza blockade, while secretly hoping Hamas can then more easily sneak Scud missiles into Gaza and fire them at Tel Aviv.)
You just can’t hold down that freedom of speech! Everybody has it, everyone should be allowed to express it, whenever and wherever.
Oh, wait — unless the expresser happens to be a corporation and the expression happens to be “electioneering communications”… that is, a corporation’s political freedom of speech ends thirty days before a primary election and sixty days before a general election. Those time windows constitute “no electioneering zones” — for corporations and unions. And Justice Breyer enthusiastically favors cutting off freedom of speech during those windows: In 2003, he joined the opinion by Chief Justice William Rehnquist in McConnell v. F.E.C., 540 U.S. 93 (2003), upholding the Bipartisan Campaign Reform Act, a.k.a. “McCain-Feingold.”
Not only did Breyer support that ban, he also joined Justice John Paul Stevens’ dissent this year from Citizens United v F.E.C., 558 U.S. 50 (2010); the Stevens dissent included language specifically bemoaning the fact that the Court had finally struck down the grotesque prohibition on corporate-funded adverts within those time windows.
(Note that Stevens, however, is not two-faced here: He opposes corporate speech before elections, but he also opposes speech by terrorist groupies on the Left.)
So let’s sort out Breyer’s patch of intellectual real estate:
- Helping terrorist organizations enlarge their power by verbal means, thus freeing up resources to use in terrorist attacks and other crimes… that’s Breyer-approved freedom of speech!
- A private oil company airing an advertisement this October against some incrumbent Democrat who is pushing to permanently ban all offshore drilling… in the Breyer patch, that’s criminal behavior!
The cream of left-liberal jurisprudence thus runs the gamut from one Obama Court nominee who can’t even see a freedom of speech issue that’s standing up and barking for her attention; a sitting justice who sees nothing but freedom of speech, and for whom national-security issues are completely invisible; and a third liberal appointee who supports freedom of speech whenever it helps the Left — but who manifests acute MEGO syndrome when it does not.
Just so you know.
Cross-posted on Big Lizards…
Recently in the Green Room: