FAN 14 (First Amendment News) — Why the Justices vote as they do in First Amendment Free Expression Cases (updated)

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As I mentioned in an earlier column, there is a new empirical study entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.” The study was done by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Segal. Since I just introduced that study in a cursory fashion, I wanted to say a bit more about the study and its findings.  

→ Let us start here with this admonition to lawyers and scholars: The ideological status (or “grouping”) of the party bringing a First Amendment challenge (speech, press, assembly, or association) may well determine the outcome. That, at least, is the general takeaway point from this new study done by three political scientists (Lee Epstein is also a law professor). In other words, the focus is not simply on the legal claim in the abstract or on the ideological makeup of the judge in general. It is an old but forgotten lesson: the right plaintiff can make or break the case. But here the right plaintiff depends on aligning his or her ideological grouping with that of a majority of the Justices hearing the case. If you doubt it, the authors argue, simply consider the ideological divide in cases such as Boy Scouts v. Dale or Madsen v. Women’s Health Center or  Morse v. Frederick or Citizens United or Garcetti v. Ceballos.

Such “in-group bias,” the authors maintain, “leads to the hypothesis that judges engage in opportunistic behavior following from litigant favoritism.” To buttress their general claim, Epstein, Parker, and Segal examined 4,519 votes of the Justices in 516 First Amendment free expression cases decided between the 1953-2010 Court Terms. Based on their examination they concluded that “the Justices’ votes tend to reflect their preferences towards the speakers’ ideological grouping, and not solely an underlying taste for the First Amendment qua Amendment.” While scholars such as Emily Bazelon (see here) and Adam Winkler (see here) have made similar points, this study is the first one to make the case based on a systematic examination of a large number of First Amendment cases and the voting patterns of 33 Justices (from Hugo Black to Elena Kagan). Again, below is one of the tables setting out some of the authors’ findings:Screen Shot 2014-05-05 at 3.25.12 PM

Here are three questions for Professors Epstein, Parker and Segal:

1.) How might one categorize the ideological grouping of, say, the litigant in United States v. Stevens where the Court voted 8-1 to sustain the First Amendment claim? Or what about the ideological grouping of the litigant in United States v. Alvarez, where the Court sustained a free speech claim by a 6-3 margin? Or what about Knox v. Service Employees International Union where the Court voted 7-2 to uphold the First Amendment claim (with Justices Sotomayor and Ginsburg in the majority)?

2.)  What about the rule and reasoning of a case? That is, even if, say, conservative Justices favor a litigant based on some ideological similarity with their own views, might not that ruling and the logic of the case serve to benefit “liberal” litigants in future cases? Or as Howard Wasserman (I assume he is Professor Wasserman) put it in a comment to my last post: “Is there a problem relying entirely on results and votes rather than reasoning? This would be more meaningful if a justice came out diametrically opposite in two cases that were identical but for the identity and political persuasion of the speaker and that involved the same constitutional test, analysis, or standard.”

3.) What are we to make of unanimous rulings like the ones in First Amendment cases such as New York State Bd. of Elections v. Lopez Torres or Locke v. Karass or Rumsfeld v. Forum for Academic & Institutional Rights?

The authors have kindly replied, and their response is set out below:

The first and third questions seem to address a similar issue, which is the extent to which factors outside of ideology influence voting on the Court. While we argue that ideology is a major component of a Justice’s vote, it is not the only factor.  The influence of ideology does not mean that other legal or institutional issues may play a role in voting. For example, our model finds that Justices are less likely to support freedom of association claims as compared to their support for speech in purer free speech cases. We also find that justices are less likely to support speech that violates a federal law as compared to a state or local law. So while ideology plays a significant role in voting, that does not preclude the possibility that we will see larger, or even unanimous majorities on some of the “easier” free speech cases.

Some of the cases you mentioned, like U.S. v. Stevens and Knox v. Service Employees International Union, may also create ideological ambivalence in Justices.  For example, do liberal Justices continue to vote against anti-obscenity laws or uphold a law aimed at preventing animal cruelty (in Stevens), or do they support labor unions or individual workers (in Knox)?  This may help explain why we see ideologically mixed coalitions in some cases.

The second question deals with the possibility that a liberal (or conservative) Justice may vote to create a precedent that benefits liberals (conservatives) in the short term but can be exploited by the other side in future cases. There is always the potential for this, although we think it is significantly mitigated in many of the most controversial free speech cases recently.  Where we see the clearest ideological splits are on cases that create a new standard that is likely to consistently benefit one side over another. For example, campaign finance cases that uphold the money-as-speech standard and continuously loosen restrictions on this form of speech apply to both conservative and liberal donors.  However, in terms of support for restrictions on this type of speech liberals consistently support regulations while conservatives oppose them. So rulings that remove restrictions on campaign spending will endorse the conservative vision of the role of money in politics, regardless of whether or not it benefits liberal donors as well.

Similarly, in cases involving abortion protesters may be facially neutral and create a standard that supports all forms of public protesters, but it is pretty clear that the decisions on these cases are going to affect pro-life protesters much more than any other group. While a reversal of Hill v. Colorado in the forthcoming McCullen v. Coakley decision could be used by liberal protesters (such as an Occupy Wall Street type protest), the conservative justices could also distinguish the precedent to apply more narrowly to abortion protests given their unique nature.  Or if Hill v. Colorado is upheld liberal justices could state that the unique history of violence on the part of pro-life protesters limits that precedent to restricting protesting outside of health facilities but not peaceful protests like Occupy Wall Street. Given these circumstances it is not surprising that we consistently see 5-4 votes along ideological lines in campaign finance and abortion protest cases.

[Hat tip to Professor Parker for helping to expedite this reply and thanks to all of the authors for accommodating our readers.]

Meanwhile, I wonder how far ideological labeling can take us. While I do not deny the importance of this fact and this important new study, I think it well to remember that labels like “conservative” or “liberal” also change over time. For example, recall the lineup in the 5-4 Posadas commercial speech case wherein the conservatives voted against the First Amendment claim and the liberals for it. Furthermore, how likely is it that traditional First Amendment conservative Justices like, say, Felix Frankfurter or Byron White would have joined their contemporary counterparts in sustaining a free speech claim in a cases such as United States v. Stevens or Brown v. Entertainment Merchants Association? My point: ideological turf sometimes shifts over time and labels take on new meanings (or become blurred).

To be continued? Let me know what you think and we may well post more. (One more thing: a big welcome to our colleagues in Political Science. Please keep us abreast of your work in the First Amendment field.)

Bopp is Back!

James Bopp, Jr. is the man who, among other things, first brought the legal challenges in the Citizens United and McCutcheon cases. He is, I gather, now about to file a lawsuit before a three-judge court in a federal district court in the District of Columbia. When filed, the complaint will petition the court to allow national and state parties to form super PACs that can raise and spend unlimited amounts on election campaigns, something the Federal Election Commission has barred. According to a Washington Times news report, “current rules for soft money require that state and local parties use only severely limited, federally regulated ‘hard dollar’ donations to fund federal electioneering activities. This includes voter registration drives within 120 days of an election, voter ID and get-out-the-vote programs and any communications that mention federal candidates — with some exceptions.” The story goes on to quote Mr. Bopp: “‘This means that few local political parties do these activities because of the hard-money requirement,’ Bopp told [Louisiana Republican Party Chairman Roger Villere] in an email suggesting that the Louisiana chairman become the plaintiff in the proposed lawsuit. ‘State political parties that are able to set up hard money accounts find it hard to raise this money because of the annual $10,000 contribution limit for hard money.'”

Will the RNC join this anticipated lawsuit? Stay tuned.

Headline: “News media challenges ban on journalism drones”

According to a May 6, 2014 Associated Press story, “thirteen leading news organizations are challenging the Federal Aviation Administration’s ban on journalists’ use of drones, saying it violates First Amendment protection for news gathering. The organizations, including The Associated Press, filed a brief with the National Transportation Safety Board Tuesday in support of aerial photographer Raphael Pirker.”

This last March and administrative law judged ruled that “the FAA can’t enforce its blanket policy against the commercial use of drones when the agency hasn’t issued regulations for commercial drone use.FAA officials have said they hope to issue regulations later this year.”

See also Greg McNeal, “FAA ‘Looking Into’ Arkansas Tornado Drone Journalism, Raising First Amendment Questions,” Forbes, April 29, 2014.

Now & Then — Senator Orrin Hatch on the First Amendment

Senator Orrin Hatch

Senator Orrin Hatch

Senator Hatch NOW: “Political speech is critical to our democracy.  Indeed, this principle is at the very foundation of our republic. It is one that our Supreme Court has upheld time and again, including very recently. Yet, when confronted with speech they don’t like, my friends on the other side of the aisle are willing to use every tool at their disposal – to even change the text of the Constitution itself – in order to silence it. In a marketplace of ideas – like the one the Founders intended – disagreeable speech can easily be met with additional speech. And, in the end, the truth will almost certainly prevail. But, alas, my friends don’t appear to be interested in the truth or the marketplace of ideas. They only want one store that will only sell ideas they happen to agree with. It’s truly mind-boggling. But, like I said, that’s where we are. [Remarks from Senate floor, May 5, 2014]

 Senator Hatch THEN: see Carl Hulse & John Holusha, “Amendment on Flag Burning Fails by One Vote in Senate,” NYT, June 27, 2006 (“Senator Orrin Hatch, Republican of Utah and the chief sponsor of the [constitutional] amendment, predicted before the vote that those who opposed the amendment would be penalized by the voters if it was again defeated. ‘I think this is getting to where they are not going to be able to escape the wrath of the voters,’ said Mr. Hatch.”)

Freedom of Expression Scholars Conference

Last weekend the Floyd Abrams Institute for Freedom of Expression sponsored a First Amendment conference at Yale Law School. The  second Freedom of Expression Scholars Conference was hosted by the Information Society Project at the Law School.

This year, nearly 25 papers were presented and discussed at the conference, covering nearly every issue at the cutting edge of free speech law. For instance, the first plenary session focused on the protection for freedom of speech online and, in particular, the prospect of private censorship by online services and the dangers of direct or collateral government censorship of such online platforms. The second plenary session, on Sunday morning, also tackled a topical issue:  the criminalization of ‘revenge porn’ – i.e. sexually explicit images or videos that are recorded with the consent of the subject, but which are subsequently published online without her consent. Outside the plenary sessions, participants participated in workshops discussing papers on an array of topics.

The conference was a unique gathering of the First Amendment scholars. This year, like last year, it provided a space for leading experts to debate and discuss one another’s work. Perhaps more important, this annual conference is fostering the development of a national network of scholars committed to studying and elaborating the protections of the First Amendment. (Hat tip to Jonathan Manes.)

Floyd Abrams comments 

The following are excerpts from a statement Mr. Abrams made in response to reading the various Conference papers:

 Your written offerings that you meet this weekend to discuss are thoughtful, original and  eclectic. I’m proud to have been involved in bringing you together, in facilitating this event. Taken together, your papers offer what a former Professor here, Robert Bork, referred to as an intellectual feast, a phrase that did not exactly help his chances for confirmation for the Supreme Court when he uttered it. But I don’t exaggerate when I say that for anyone interested in the First Amendment  generally and in scholarship about the First Amendment specifically, your offerings are a joy. . . .

I do want to offer two observations which I suspect may not surprise you but which I find of special interest.

The first is that there no praise from any of you—none– for the Roberts Court on anything, including its First Amendment rulings. That’s particularly interesting to me since the Chief Justice certainly seems to view his Court  as especially solicitous of the protections of the First Amendment. And so, by the way, do I. Whether we’re right would take a lot more time than I have this morning in welcoming you here. So for now, let’s  put it this way: None of you write as if to say “The First Amendment has never been stronger! What a great time to be a First Amendment scholar!”

The second is that there is little support in your offerings  for more First Amendment protection. There are a few submissions, to be sure, urging greater protections in the Internet area but taken as a whole you seem far more concerned than celebratory  expressed in your writings about recent First Amendment victories  in cases ranging from Sorrell to Citizens United. You seem especially concerned that the First Amendment has (or has been interpreted  to have) a strong anti-regulatory edge to it—something that I thought was pretty clear from its text. That’s a mighty big change from when I was here what seems like just a few years ago. It would take a different forum and a whole weekend to explore what has happened in the law, in American society generally and in the academy in particular in more recent years but I suspect a good part of the explanation may be exposed in some of your discussions today and tomorrow about what the First Amendment means, how it should be read, what it protects. . . .

Forthcoming Conference

 “Public Health in the Shadow of the First Amendment”

Date: Friday, October 17, 2014 – 1:30pm to Saturday, October 18, 2014 – 5:00pm

Location: Yale Law School

Panels: go here

Confirmed Speakers: go here

A conference hosted by Yale Law School, Yale Medical School, and the Yale School of Public Health. Sponsored by the Information Society Project, the Yale Global Health Justice Partnership (GHJP), and the Yale Health Law and Policy Society, with support from the Samuel and Liselotte Herman Fund for the Social and Behavioral Sciences at The Yale School of Public Health, and the Oscar M. Reubhausen Fund.

Forthcoming Book

Past Perfect — Christopher Hitchins on Free SpeechUnknown

“Fire, fire, fire, fire. Now you’ve heard it. Not shouted in a crowded theater, admittedly. I seem to have shouted it in the Hogwarts dinning room. But the point is made. Everyone knows of the facetious verdicts of the greatly overpraised Justice Oliver Wendell Holmes, who asked for an actual example of when it would be proper to limit speech or define it as an action; he gave that of shouting fire in a crowded theater. It is often forgotten that what he was doing in that case was sending to prison a group of Yiddish-speaking Socialists, whose literature was printed in a language that most Americans couldn’t read, opposing President Wilson’s participation the First World War. . . . In fact it could be . . . plausibly argued that the Yiddish-speaking Socialists, who were jailed by the excellent and over-praised Judge Oliver Wendell  Holmes, were the real firefighters — [they] were the ones charging ‘fire’ when there really was fire in a very crowded theater. Indeed. . . . ” [For the rest of Hitchins’ speech, preserved on YouTube, go here.]

Quick Hits

Next Scheduled FAN Column: May 14th, Wednesday.

Last Scheduled FAN Column: Burt Neuborne’s Forthcoming Book on Madison, Music, & the First Amendment

Coming Soon: FAC 4 (First Amendment Conversations) with Professor Steven Shiffrin.

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