FAN 13.3 (First Amendment News) New Study Reveals Politics of Justices’ Protection of Free Speech

Over at the New York Times Adam Liptak has just posted a news item entitled “In Justices’ Votes, Free Speech Often Means ‘Speech I Agree With.” Liptak’s story is based on 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 Epstein, Christopher M. Parker, & Jeffrey A. Segal.  Here is the abstract:

In contrast to the traditional political science view, which holds that justices on the left are more supportive of free speech claims than justices on the right, and in contrast to a newer view among legal academics that justices on the right are more supportive of free speech claims than justices on the left, we use in-group bias theory to argue that Supreme Court justices are opportunistic supporters of free speech. That is, liberal (conservative) justices are supportive of free speech when the speaker is liberal (conservative).

A two-level hierarchical model of 4,519 votes in 516 cases confirms the in-group bias hypothesis. Although liberal justices are (overall) more supportive of free speech claims than conservative justices, the votes of both liberal and conservative justices tend to reflect their preferences toward the speakers’ ideological grouping, and not solely an underlying taste for (or against) the First Amendment.

Below is a revealing chart summary of the study (sans the notes to the asterisks). Given the importance of this study, I plan to post more on this work after I have had more time to review it.  Meanwhile, here is a link with additional information concerning the study.  Screen Shot 2014-05-05 at 3.25.12 PM


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4 Responses

  1. AndyK says:

    This is only of marginal help, because it doesn’t distinguish types of institutional speaker. Campaign finance prosecutions have been liberals cracking down on conservatives. Elementary school speech cases are conservatives cracking down on liberals. College cases have been a mix (but more often conservatives on the receiving end). Abortion picketing— well, you know how that falls.

    So once you weight based on type of institutional speaker—- what’s the result? I doubt Thomas is ideologically motivated when it comes to primary school speech— he just thinks schools have plenary authority in loco parentis.

    So can we weight for this and find who is *really* biased? Or does the identification of how to weight and what institutions justices trust or mistrust in itself give us good information?

    • Brett Bellmore says:

      Elementary school cases have been something of a mixed bag, there’s been quite a lot of liberal censorship of conservative views at the k-12 level. Even detention for the kid who chews a toaster pastry into a gun can be seen in this light.

      The study could, I think, have benefited from an analysis of the relationship between the justice’s party, and the party of the censor, not just the party of the censored. This makes more sense of the campaign finance/censorship cases, which were excluded on the basis that the law is nominally viewpoint neutral, but, of course, this does not mean the people applying it are.

  2. Howard Wasserman says:

    Along the same lines–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. A White says:

    Thanks for Information Share, Great post