Conservative Court's Free Speech Rulings Drenched in Biases

According to a new legal study of sitting and recent justices on the U.S. Supreme Court, conservative members of the court are tied much tighter to their own political and ideological biases than the liberal justices when it comes to ruling on cases concerning free speech.

The study--conducted by legal professors Professors Lee Epstein, Christopher Parker, and Jeffrey Segal and first reported by the New York Times--found that despite exceptions, "the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings" of the speakers advocating a case. But in the case of conservatives, the study, found those biases are much more pronounced and consistent.

"Justices are opportunistic free speechers," the authors concluded. "They are willing to turn back regulation of expression when the expression conforms to their values and uphold it when the expression and their preferences collide."

Using one of the court's conservative justices as one example, as the Times reports, the study found that Antonin 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."

In contrast, when it came to the "liberal" justices, the study found much more even-handed decisions. All supported free expression more often when the speaker was liberal, the study showed, "but the results were statistically significant only for Justice John Paul Stevens, who retired in 2010."

Reporting on the approach of the study, Vox.com explains:

Traditional political science research has tended to treat decisions supporting free speech as liberal, and decisions opposing free speech as conservative. But Epstein and her co-authors decided to focus on whether the controversial speech in each case was liberal or conservative, and code it as such.

For instance, a student who held up a banner reading "Bong Hits 4 Jesus" at a school event would be coded as a liberal speaker, as would a whistleblower trying to expose police corruption. But pro-life protesters outside an abortion clinic, or the Boy Scouts of America arguing for their rights not to admit gays, would be conservative speakers.

So the authors then checked whether, after controlling for other variables, the ideological orientation of a justice plus the ideological orientation of the speaker would predict the justice's vote in a free speech case. That is, whether conservative justices would defend the speech of conservatives more than liberals.

"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.

And Erwin Chemerinsky, the dean of the law school at the University of California, Irvine, told the Times the study was important "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."