"The Justices and Free Speech"

by Prof. Eugene Volokh, UCLA School of Law

published (in slightly different form) in the N.Y. Times, Oct. 30, 2000, p. A27


      The Supreme Court has become a hot issue in the Presidential campaign; both sides warn of evil days if the other gets to name the next several Justices.  But we should beware of too quickly assuming what views Democratic or Republican appointees will take on various issues.  And this is especially true of free speech, which is usually -- but, it turns out, sometimes wrongly -- seen as a "liberal" issue.

      Clinton appointee Justice Breyer, for instance, turns out to be the least likely of all nine Justices to vote for free speech claimants.  The Justice who takes the broadest view of free speech rights is actually moderate conservative Justice Kennedy, followed by the two Bush appointees -- archconservative Justice Thomas in a virtual tie with the more liberal Justice Souter.  Not what some might expect from the conventional political labels.

      To objectively evaluate where the Justices stand, I went through all 33 free speech cases that the Court has decided over the last six years -- the time during which the Court’s membership has remained unchanged.  I limited myself to cases involving the freedom of speech and of the press, and the closely related right to associate for expressive purposes.  I then counted one point for each case where a Justice voted for the free speech claimant, adjusting up or down by one third whenever a Justice joined a separate opinion taking a more or less speech-protective view than his colleagues did. 

      What were the results? Justice Kennedy voted for the free speech claimants an adjusted 74% of the time -- hardly an absolutist (nobody really is one), but still a voice for especially broad speech protection.  Justices Souter and Thomas were at 63%.  The next group consisted of Justices Ginsburg and Stevens, pretty much tied at 58% and 57%.  Justice Scalia followed at 52%; Chief Justice Rehnquist and Justice O’Connor were at 46% and 45%.  And Clinton appointee Justice Breyer voted for the free speech claimant only 40% of the time. 

      These numbers are fairly objective and robust.  I deliberately looked only at the bottom lines, without injecting my views about whether the Justices were right or wrong, and without trying to subdivide the cases along categories that would ultimately just reflect my own biases.  And though the result might be somewhat affected by accidental circumstances -- such as the particular mix of cases that the Court has been facing -- the number of cases (33) is large enough to mitigate such effects.  My raw data is available at http://www.law.ucla.edu/faculty/volokh/court.htm

      Of course, there are often plausible (and sometimes politically predictable) reasons to vote against one or another free speech claim.  Justice Ginsburg, for instance, often strongly supports free speech claimants, but thinks that religious speech and costly speech advocating the election of political candidates should be subject to more restriction.  I may disagree with her, but she has thoughtful explanations for her positions. 

      Likewise for Justice Scalia, who believes in strong protection for religious speech and campaign-related speech, but thinks that sexually explicit speech deserves less protection.  They are both honorable judges and in their own ways lovers of free speech, even though they support certain kinds of speech restrictions.  Generalizing about where a Justice stands on "free speech" may be dangerous, precisely because in some situations different kinds of speech should indeed be treated differently.

      But if we do generalize about the Justices’ general approach (as people in fact often do), at least we should generalize based on fact and not based on guesses or political preconceptions.  And beyond this, trying to draw too many subtle distinctions among kinds of speech may be a mistake.  Restrictions on one kind of speech tend to lead to restrictions on other kinds: The slippery slope is a real concern in a system like ours, which is founded on precedents and analogies.  Those of us who do generally support a broad free speech vision should welcome more the views of a Justice Kennedy, Thomas, or Souter than of a Justice Breyer, even if we might disagree with the first three on some particular cases.

      These numbers also show that we can no longer assume that the Left generally sides with speakers and the Right with the government.  We’ve already seen this in universities with campus speech codes, but now we see it on the Supreme Court as well.  Many of the strongest libertarian voices in favor of individual rights and against government power now come from conservatives at least as much as from liberals.