For Supreme Court Justices, the Right to Free Speech Depends on the Speaker’s Politics

Sunday, May 11, 2014

The right of free speech as guaranteed under the First Amendment is more often than not upheld by members of the U.S. Supreme Court based on their own liberal or conservative viewpoints.


A study by three political science professors found that many of the court’s current justices display “in-group” bias when it comes to free-speech rulings, meaning they’re more likely to side with those who share their beliefs.


Justice Antonin Scalia, the present court’s longest-serving member and one of its most conservative, also has the court’s most pronounced history of supporting speech by conservative speakers more often than he does that of liberal speakers, the study showed that his record on 161 cases from 1986 to 2011 revealed that he favored conservative speakers in 65% of the cases they brought before the Court, but voted in favor of  liberal free speech in only 21% of their cases.


Justice Clarence Thomas, who joined the court in 1991 and rarely votes against Scalia, had a similarly large conservative-over-liberal gap, 65% to 23%, in deciding free speech cases.


The study’s authors (Lee Epstein of Washington University, Christopher Parker of Centenary College, and Jeffrey Segal of Stony Brook University) said Justice Anthony Kennedy favored conservative speakers by a smaller but still significant margin of almost 25%.


The court’s more liberal members “present a more complex story,” according to the study.


Justice John Paul Stevens, who retired in 2010, had nearly a 20% gap of favoring liberal views over conservative ones. But the differentials belonging to Justices Ruth Bader Ginsburg (more than 15%), David Souter (10%) and Stephen Breyer (less than 5%) were all more narrow while still favoring liberal speakers.


Chief Justice John Roberts Jr. and Justices Samuel Alito Jr., Sonia Sotomayor and Elena Kagan have not been on the court long enough to accurately gauge their histories, the researchers said.


The study reviewed 4,519 votes in 516 cases from 1953 to 2011.


The study’s findings come as a poll shows that most Americans believe that Supreme Court justices decide cases based on their personal ideology, rather than impartial legal analysis.


The poll from Democracy Corps showed that 60% of those surveyed believed that justices allow their personal or political views to influence their decisions.

-Noel Brinkerhoff


To Learn More:

For Justices, Free Speech Often Means ‘Speech I Agree With’ (by Adam Liptak, New York Times)

Have American Politics Killed the Impartial Supreme Court? (by Jaime Fuller, Washington Post)

Roberts Supreme Court Not a Friend of Free Speech (by Noel Brinkerhoff, AllGov)


Randall 10 years ago
Of course.... We all make decisions based on our beliefs and experiences... Judges are no different... Especially in our current system, Supreme Court Judges are voted into their positions by the 2 Parties controlling our government at the time of their appointments. Over simplified example... As a child you are told by your parents not to touch the stove... it's bad, you can get hurt.. But, you touch it anyway... you get burned... From what they have been told and through experience, Judges pass along the same wisdom in their findings as they interpret the Law. Dems think with their Left side of the brain and Repubs think with the right... That is a theory, but it holds true based on my experience. Take a Mathematician and hand him/her a guitar and ask them to play something... It will sound horrible at best... Reverse the scenario and ask a musician to figure the distance to the moon... Can't do it... They each work and live using one side of their brains... and that forms their way of receiving and interpreting their life experiences... am I wrong?

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