An Elastic Amendment: Justice Stephen G. Breyer's Fluid Conceptions of Freedom of Speech

Abstract

Commentators frequently regard Justice Stephen G. Breyer as one of the consistent liberal leaders of the United States Supreme Court. However, there is at least one key area where Justice Breyer often departs from his politically liberal brethren: interpreting the First Amendment's protections of freedom of speech. By studying twenty-seven freedom of speech cases decided during Breyer’s tenure on the Court, and identifying patterns and trends among Breyer’s decisions in these cases, this article illustrates several key features regarding Breyer’s positions on these hotly contested issues. Ultimately, it reveals a jurist whose jurisprudence regarding freedom of speech is neither conventionally liberal nor conventionally conservative, but instead establishes a philosophy regarding this constitutional right that is unique among all members of the Court today.

Keywords: Supreme Court, Justice Breyer, Freedom of Speech, First Amendment, United States Constitution, Constitutional Interpretation, Judicial Process, Federal Judiciary, Liberal, Conservative, Swing Vote