How the Justices Voted in Free Speech Cases, 1994-2001

By Eugene Volokh,

Professor of Law, UCLA School of Law

 

(The material for 1994-2000 has been published in an article in the UCLA Law Review, vol. 48, pp. 1191-1202, http://www.law.ucla.edu/faculty/volokh/justices.pdf)

 

 

Dataset:  All the free speech cases decided by the U.S. Supreme Court since the most junior Justice (Justice Breyer) was appointed.  These are the 40 free speech cases from the 1994-95 Term to the just completed 2000-01 Term.

 

What is or is not a free speech case is decided using the Court’s own definition:  Thus, the dataset includes cases involving the freedom of expressive association, because the Court has consistently held that this freedom is an aspect of the freedom of speech.  Likewise, it includes cases related to government funding of speech, because the Court has concluded that refusal to fund speech may often pose a Free Speech Clause problem.

 

Because the study focuses on free speech cases, the dataset does not include pure Establishment Clause cases (such as cases involving graduation prayer or school funding), but it does include free speech cases that also involve an Establishment Clause issue.

 

 

Method:  I went through all 40 cases and counted:

·        I counted 1 point each time a Justice voted for the free speech claimant, and 0 points each time the Justice voted against.

·        I then adjusted up by 1/3 whenever the Justice wrote or joined an opinion that was more speech-protective than the majority (or plurality) or than the lead dissent, and down by 1/3 whenever the Justice wrote or joined a similarly speech-restrictive opinion.

·        On the cases that involved two or three separate issues, I split the points accordingly.

·        I then divided by the number of cases, and multiplied by 100.

·        I intentionally refrained from deciding which results are “right” or “wrong”:  It may well be that in some of these cases, the narrower view of free speech is more sound than the broader, but that’s not my business in this study.

·        I also intentionally refrained from subdividing these cases into categories (such as political speech vs. sexually themed speech, or government acting as sovereign vs. government acting as funder or employer) that would just reflect my own views about which speech should be more protected and which should be less protected.

 

 

Results:

Justice

Adjusted fraction of the time the Justice voted for the free speech claimant

Kennedy

75%

Thomas

61%

Souter

61%

Stevens

55%

Ginsburg

55%

Scalia

52%

Rehnquist

47%

O’Connor

43%

Breyer

40%

 

 

Detailed data:

 

Case Name

Rehn­quist

Stevens

O’Connor

Scalia

Kennedy

Souter

Thomas

Ginsburg

Brey­er

Lorillard Tobacco Co v. Reilly [a]

0.667

0.333

0.667

0.667

0.667

0.5

0.889

0.333

0.333

FEC v. Colorado Republican Fed. Campaign Comm. II

0.667

0

0

1

1

0

1

0

0

U.S. v. United Foods, Inc.

1

1

0

1

1

1

1

0

0

Good News Club v. Milford Central School

1

0

1

1

1

0

1

0

0.667

Bartnicki v. Vopper

0

1

0.667

0

1

1

0

1

0.667

Shaw v. Murphy

0

0

0

0

0

0

0

0.333

0

Legal Service Corp. v. Velazquez

0

1

0

0

1

1

0

1

1

Boy Scouts v. Dale

1

0

1

1

1

0

1

0

0

Hill v. Colorado

0

0

0

1

1

0

1

0

0

Calif. Dem. Party v. Jones

1

0

1

1

1

1

1

0

1

U.S. v. Playboy Entertainment Group

0

1

0

-0.333

1

1

0.667

1

0

City of Erie v. Pap’s A.M.[a]

0

1

0

-0.333

0

0.5

-0.333

1

0

Bd. of Regents v. Southworth

0

-0.333

0

0

0

-0.333

0

0

-0.333

Nixon v. Shrink Missouri PAC

0

-0.333

0

1

0.667

0

1

-0.333

-0.333

LAPD v. United Reporting Pub. Corp.

0

1

-0.333

0.333

1

-0.333

0.333

-0.333

-0.333

Greater New Orleans Broad. Ass’n v. U.S.

0.667

1

1

1

1

1

1.333

1

1

Buckley v. American Const. Law Found.[a]

0.333

1

0.333

1

1

1

1.333

1

0.333

NEA v. Finley[b]

0

0

0

-0.333

0

1

-0.333

0.333

0

Arkansas Educ. TV v. Forbes

0

1

0

0

0

1

0

1

0

Reno v. ACLU[a]

0.5

1

0.5

1

1

1

1

1

1

Glickman v. Wileman Bros. & Elliott, Inc.

1

0

0

1

0

1

1.333

0

0

Turner Broad. Sys. v. FCC

0

0

1

1

0

0

1

1

0

Timmons v. Twin Cities Area New Party

0

1

0

0

0

0.667

0

1

0

Schenck v. Pro-Choice Network[a]

0.5

0.5

0.5

1

1

0.5

1

0.5

0

Denver Area Educ. Telecomm. Consortium v. FCC[a]

0

0.667

0.333

0

1

0.667

0

1

0.667

O’Hare Truck Serv. v. City of Northlake

1

1

1

0

1

1

0

1

1

Board of County Comm’rs v. Umbehr

1

1

1

0

1

1

0

1

1

Colorado Republican Fed. Campaign Comm. v. FEC[a]

1

0

0.5

1

1

0.5

1

0

0.5

44 Liquormart v. Rhode Island

0.667

1

0.667

0.667

1

0.667

1.333

1

0.667

Morse v. Republican Party of Virginia

0.667

0

0.333

1

0.667

0.333

1

0

0.333

Rosenberger v. Rector[c]

1

0

1

1

1

0

1

0

0

Capitol Square Review & Advisory Bd. v. Pinette

1

0

0.667

1

1

0.667

1

0

0.667

Florida Bar v. Went for It

0

1

0

0

1

1

0

1

0

U.S. v. Aguilar

0

0

0

0

0

0

0

0

0

Hurley v. Irish-American Gay, Lesbian & Bisexual Group

1

1

1

1

1

1

1

1

1

Rubin v. Coors Brewing Co.

1

1.333

1

1

1

1

1

1

1

McIntyre v. Ohio Elections Comm’n

0

1

1

0

1

1

1

1

1

U.S. v. Nat’l Treasury Emp. Union[a]

0

1

0.5

0

1

1

0

1

1

Lebron v. National R.R. Passenger Corp.

1

1

0

1

1

1

1

1

1

U.S. v. X-Citement Video

1

1

1

0

1

1

0

1

1

TOTAL

18.668

22.167

17.334

20.668

30.001

24.335

24.5557

21.833

15.8352

%

46.67%

55.42%

43.34%

51.67%

75.00%

60.84%

61.39%

54.58%

39.59%

 

Rehn­quist

Stevens

O’Connor

Scalia

Kennedy

Souter

Thom­as

Ginsburg

Brey­er

 

[a] This case involved two or more First Amendment claims.  The Justices’ scores on each claim were averaged, weighing each claim equally to avoid subjective judgments about which claim was more important.

 

[b]  Justice Ginsburg did not write a separate opinion that was more speech-protective than the majority’s, but she did decline to join part of the majority’s opinion that expressed a relatively non-speech-protective view.

 

[c]  Justice O’Connor wrote a separate concurrence that might be seen as potentially less speech-protective, but she joined the majority’s opinion, and her opinion seemed to be focused on how the Establishment Clause would play out in situations where the Free Speech Clause was less implicated.  (This is unlike Justice Breyer’s concurrence in Good News Club v. Milford Central School, which seemed to suggest that the Establishment Clause may indeed justify certain restrictions even when the Free Speech Clause is otherwise fully implicated.)  Likewise, Justice Thomas’s separate concurrence seemed to be focused only on the Establishment Clause question.

 

Note:  I excluded Brentwood Academy v. Tennessee Secondary School Athletic Ass’n (2001) and City News & Novelty v. City of Waukesha (2001) because they focused on general constitutional or procedural issues (state action and mootness) rather than the First Amendment as such, even though they did arise in the First Amendment context.  I also excluded Cook v. Gralike (2001) because the majority opinion focused solely on the Article I question rather and only a two-Justice concurrence squarely discussed the Free Speech Clause.