Justice Stephen Breyer’s Memorable First Amendment Passages

Justice Stephen G. Breyer is one of the more scholarly jurists to serve on the nation’s high court, authoring such thought-provoking books such as Active Liberty (2006), Making Our Democracy Work (2010) and The Court and the World (2015).

Since joining the Court of Last Resort in 1994, Breyer has written many significant First Amendment opinions. The following five passages are a sampling of his writings on the relationship between copyright and the First Amendment, the Establishment Clause, public employee speech, political expression, and violent video games.

“This statute will cause serious expression-related harm. It will likely restrict traditional dissemination of copyrighted works. It will likely inhibit new forms of dissemination through the use of new technology.”

In Eldred v. Ashcroft (2003), the U.S. Supreme Court upheld the constitutionality of a copyright law – called the Copyright Term Extension Act of 1998 – that extended the copyright term of works about to enter the public domain an additional 20 years.   Challengers to the law contended that it violated the First Amendment by reducing the level of available expression free from copyright restraint.     The majority rejected the First Amendment argument in fairly cursory fashion.

Justice Breyer, however, felt that the copyright law impacted freedom of expression in significant ways.   In his dissent, he reflected his view that the court must be vigilant to ensure that intellectual property rights do not trample on freedom of expression.


“If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment.”

In the last decisions of the Rehnquist Court, the Justices decided two cases involving the display of the Ten Commandments on public property.   In Van Orden v. Perry (2005), the Court ruled 5-4 that a Ten Commandments monument in a Texas public park did not violate the Establishment Clause. However, in McCreary County v. ACLU of Kentucky (2005), the Court ruled 5-4 that the display of Ten Commandments in two Kentucky County courthouses did violate the Establishment Clause.

Eight of the nine justices voted the same way in both cases. Only Justice Breyer switched sides, upholding the display in the Texas case but not in the Kentucky cases.   In the above-passage, Justice Breyer took issue with the various tests the Supreme Court has created in church-state separation cases – such as the Lemon test, the endorsement test, and the coercion test.  Instead, Justice Breyer said there was no substitute for “legal judgment.”


“Where professional and special constitutional obligations are both present, the need to protect the employee’s speech is augmented, the need for broad government authority to control that speech is likely diminished, and administrable standards are quite likely available.”

In Garcetti v. Ceballos (2006), a sharply divided (5-4) U.S. Supreme Court reduced the level of First Amendment protection for public employees. The Court ruled that an assistant district attorney in California did not have a First Amendment right to be free from retaliation for criticizing his office’s refusal to dismiss criminal charges in a case that likely had perjured law enforcement statements in a search warrant affidavit.

Breyer wrote a separate dissent, emphasizing the irony that a prosecutor has no First Amendment protection when there are separate constitutional and professional responsibility concerns placed on prosecutors to do the right thing in criminal cases.


“That this speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection is elementary.”

Justice Breyer wrote this passage in his dissenting opinion in Holder v. Humanitarian Law Project (2010), a case upholding a federal law that prohibited the giving of “expert advice or assistance” to groups that were designated as foreign-terrorist organizations.     The Humanitarian Law Project and others challenged the law, as they were providing humanitarian aid to different groups.  The majority rejected the First Amendment challenge to the law.

However, Justice Breyer warned that the law impacted political speech and association – the core type of expressive activities protected by the First Amendment.


“But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”

Justice Breyer wrote this passage in another dissenting opinion – this time in Brown v. Entertainment Merchants Association (2011).   The case concerned a California law that prohibited the sale or rental of violent video games to those under age 18.    The majority invalidated the law, finding it vague.  The majority also refused to extend the rationale of obscenity law – which restricts expression that is too sexually graphic – to violent material.

In his dissent, Justice Breyer had a hard time understanding how government officials can limit materials that are harmful to minors because of sexual imagery but not because of violent content. His colorful quote above reflects that sentiment.

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