Justice Breyer on Commercial Advertising

Justice Breyer’s dissent today in Sorrell v. IMS Health Inc. led me to do a quick check, and I found that Justice Breyer has never voted for First Amendment protection for commercial advertising in a nonunanimous case. He was in the speech-restrictive 5-4 majorities in Florida Bar v. Went For It, Inc. (1995). He was in the four-Justice dissents in Lorillard Tobacco Co. v. Reilly (2001) and Thompson v. Western States Medical Center (2002), and now a three-Justice dissent in Sorrell. He also joined the least speech-protective opinion in 44 Liquormart, Inc. v. Rhode Island (1996), though his bottom line (striking down the law) was the same as all the other Justices’. And he took a narrow view of the First Amendment right in the compelled funding of advertising cases, Glickman v. Wileman Bros. & Elliott, Inc. (1997), United States v. United Foods, Inc. (2001), and Johanns v. Livestock Marketing Ass’n (2005). (I view those compelled funding cases as quite different from speech restriction cases, but the Court has generally viewed them as quite similar in many ways.)

Justice Breyer strikes me in this respect as much like Justice Rehnquist throughout most of his career; as best I can tell, Justice Rehnquist never voted for First Amendment protection for commercial advertising in a nonunanimous case until Edenfield v. Fane (1993). None of this is to say that Justice Breyer and Justice Rehnquist are wrong of course; I only want to point out Justice Breyer’s view on the subject. Justice Breyer’s fellow Sorrell dissenter Justice Ginsburg, by contrast, has generally taken a much broader view of the First Amendment in commercial advertising cases. (As to the other Sorrell dissenter, Justice Kagan, we just don’t have any data yet besides Sorrell.)