New York Times

For Justices, Free Speech Often Means ‘Speech I Agree With’

MAY 5, 2014

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By ADAM LIPTAK

WASHINGTON — Justice Antonin Scalia is known as a consistent and principled
defender of free speech rights.

It pained him, he has said, when he voted to strike down a law making flag
burning a crime. “If it was up to me, if I were king,” he said, “I would take scruffy,
bearded, sandal-wearing idiots who burn the flag, and I would put them in jail.”
But the First Amendment stopped him.

That is a powerful example of constitutional principles overcoming personal
preferences. But it turns out to be an outlier. In cases raising First Amendment
claims, a new study found, Justice Scalia voted to uphold the free speech rights of
conservative speakers at more than triple the rate of liberal ones. In 161 cases
from 1986, when he joined the court, to 2011, he voted in favor of conservative
speakers 65 percent of the time and liberal ones 21 percent.

He is not alone. “While liberal justices are over all more supportive of free
speech claims than conservative justices,” the study found, “the votes of both
liberal and conservative justices tend to reflect their preferences toward the
ideological groupings of the speaker.”

Social science calls this kind of thing “in-group bias.” The impact of such bias
on judicial behavior has not been explored in much detail, though earlier studies
have found that female appeals court judges are more likely to vote for plaintiffs
in sexual harassment and sex discrimination suits.

Lee Epstein, a political scientist and law professor who conducted the new
study with two colleagues, said it showed the justices to be “opportunistic free
speech advocates.”

The findings are a twist on the comment by Justice Oliver Wendell Holmes
Jr. that the First Amendment protects “freedom for the thought that we hate.” On
the Supreme Court, the First Amendment appears to protect freedom for the
thought of people we like.

“Though the results are consistent with a long line of research in the social
sciences, I still find them stunning — shocking, really,” Professor Epstein said.
The study considered 4,519 votes in 516 cases from 1953 to 2011.

It was conducted by Professor Epstein, who is about to join the faculty at
Washington University in St. Louis; Christopher M. Parker, a political scientist at
Centenary College of Louisiana; and Jeffrey A. Segal, a political scientist at Stony
Brook University.

There may be quibbles about how they coded individual votes. But it was
seldom difficult to tell which side was invoking the First Amendment. Nor is it
usually hard to assign an ideological direction to particular speakers or positions.
Disputes at the margins will, in any event, be overwhelmed by the size of the
gaps in many justices’ support for free speech.

The largest one, at least among members of the Supreme Court who cast
more than 100 votes in free speech cases since 1953, belongs to Justice Scalia.
Justice Clarence Thomas is not far behind. Chief Justice John G. Roberts Jr. and
Justice Samuel A. Alito Jr. have not cast enough votes for a reliable appraisal, but
the preliminary data show a similarly significant preference for conservative
speakers.

Justice Anthony M. Kennedy, the current court’s most reliable free speech
vote, favored conservative speakers by a smaller but still significant margin.

The Roberts court’s more liberal members “present a more complex story,”
the study found. All supported free expression more often when the speaker was
liberal, but the results were statistically significant only for Justice John Paul
Stevens, who retired in 2010.

In the case of Justice Stephen G. Breyer, the difference was negligible. And it
is too soon to say anything empirically meaningful about Justices Sonia
Sotomayor and Elena Kagan.

There are many ways to think about the Supreme Court’s free speech cases,
of course. The new study is important, said Erwin Chemerinsky, the dean of the
law school at the University of California, Irvine, “because it offers an explanation
for justices’ behavior in First Amendment cases and shows how much justices’
ideology influences the speech they are willing to protect.”

But he added that it was possible to sort votes in other ways, too. “For
example,” he said, “the Roberts court is very pro-speech except when the
institutional interests of the government are at issue.”

The court has, he said, protected hateful speech at military funerals, allowed
the sale of violent video games to minors and struck down campaign finance laws.
But it ruled against a government whistle-blower, a student expressing a pro-drug
message, a prisoner and a human-rights activist.

Justice Scalia was in the majority every time.

A version of this news analysis appears in print on May 6, 2014, on page A15 of the New York edition with
the headline: For Justices, Free Speech Often Means ‘Speech I Agree With’.