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Liberals, Conservatives, and Free Speech:

A commenter writes, on the campaign finance speech restrictions post,

Although suppression of speech has become a liberal monopoly, John McCain is one with the liberals on this, and he would readily appoint judges who would extend the range of suppressed political speech.

Let me say it again: Conservatives and liberals are both willing to restrict a considerable amount of speech (sometimes quite correctly, I might add). Neither side has a monopoly on speech restrictions. Consider, for instance, my study of how the Justices voted on free speech cases, 1994-2002, which counted their pro-speech-claimant votes, with some adjustments that I explain there (the cases since 2002 wouldn't, I think, affect the bottom line much):

1Kennedy74.5%
2 (tie)Thomas61.1%
Souter61.0%
4Stevens55.7%
5Ginsburg53.6%
6Scalia49.6%
7O'Connor44.7%
8Rehnquist41.8%
9Breyer39.7%

Some conservatives have broad views of free speech protections, some don't; likewise for some liberals. My sense is that the same true for politicians and academics as well.

What if one limits this just to expression that is generally seen as being on core political, religious, and social matters, and excludes, for instance, pornography and commercial advertising? I don't have the numbers on that, but I can talk about the big picture:

  1. Conservative Justices tend to be more willing to protect some sorts of such speech, for instance paid-for speech in campaigns, speech by judicial candidates, religious speech within generally available government funding programs, or antiabortion picketing (though note that on this last one, even Chief Justice Rehnquist supported restrictions).
  2. Liberal Justices tend to be more willing to protect some other sorts of such speech, for instance speech by government employees, speech that reports on the contents of intercepted telephone communications, and anonymous political speech (though note that on this last one, even Justice Thomas supported protection).
  3. On other matters, the views tend to be split, for instance on flagburning (and before you say that flagburning isn't literally speech, remember that contributing money to candidates isn't literally speech, either).

So as to some kinds of speech, left-right generalizations are in large measure accurate, especially when one focuses on Supreme Court Justices. But if we're speaking of speech more broadly, or even just political speech, one can't claim that speech restrictions are the special preserve of either side.

Related Posts (on one page):

  1. Dorf's Reply:
  2. Living Constitutionalism:
  3. Liberals, Conservatives, and Free Speech:
JosephSlater (mail):
But it's so much more personally satisfying to believe that your own side has a monopoly on virtue and the other side has a monopoly on evil!
2.28.2008 4:44pm
Duffy Pratt (mail):
Of course one can claim that speech restrictions are the special preserve of the other side, unless that's another form of speech you are trying to restrict. The claim, however, would be false.
2.28.2008 4:53pm
NI:
This looks to me like the wrong analysis. The correct analysis is that, as usual, liberals want to protect the little guy and conservatives want to protect the big guys from the little guy. This is simply result-oriented judging applied to the First Amendment.
2.28.2008 4:53pm
Brett Bellmore:

speech that reports on the contents of intercepted telephone communications,


As a general matter? Because I'm aware that they are in favor of protecting speech that reports on the contents of intercepted Republican officeholder telephone communications, but haven't heard of this committment being tested in the case of intercepted Democratic communications.
2.28.2008 5:03pm
Gordo:
NI has it just about right. The First Amendment is, for many and in most cases, just another cudgel to beat the opposition with, and to use in the service of ideological purposes. As with many other constitutional principles, such as federalism, the religious portion of the 1st amendment, etc.

That's why the occasional exceptions, such as Scalia's position on flag burning, provoke such raised eyebrows.

And it's why Scalia's decision in Raich v. Gonzales, contrary to his other decisions in the area, did not, in fact, provoke surprise, only disgust.
2.28.2008 5:13pm
hattio1:
I especially like point 2.


Liberal Justices...even Justice Thomas supported protection).


I'm sure you didn't mean to imply that Thomas was a liberal judge...but it sure comes across that way.
2.28.2008 5:21pm
randal (mail):
My observation is that conservatives tend to see more of a connection between money and speech than liberals do. Liberals don't think that "money talks," or at least, don't think it should.

Liberals seem to give more respect to protecting the actual ability for all people to speak on a wider variety of topics.
2.28.2008 5:22pm
Charlie (Colorado) (mail):
Can't be right. Everyone knows Thomas is Scalia's rubber-stamp.
2.28.2008 5:39pm
Eugene Volokh (www):
hattio1: I thought that the "though" helped clarify that.
2.28.2008 6:06pm
Malvolio:
Joseph Slater wrote:
it's so much more personally satisfying to believe that your own side has a monopoly on virtue and the other side has a monopoly on evil!
I thought this observation was close to self-evident. Then NI wrote:
The correct analysis is that, as usual, liberals want to protect the little guy and conservatives want to protect the big guys from the little guy.
I'm trying to decided if NI was making a brilliant parody of the intellectual error Slater described, or merely falling victim to it.
2.28.2008 6:06pm
NI:
Malvolio, I was half joking. I think there's plenty of judicial activism and intellectual dishonesty on both sides. That said, whenever I see that Scalia or Thomas has written the majority opinion (especially for a 5-4 court) I know without even bothering to read it that the loser was a civil plaintiff or a criminal defendant, and little guys have fewer rights than they had before. Of course, liberals could make the mirror observation about Breyer and Ginsburg opinions for a 5-4 court (although there haven't been as many of them recently).
2.28.2008 6:13pm
mendicant (mail) (www):
AS a side bar, lying is not only not free speech but a crime in certain settings (obstruction, perjury). I know the reason is that the justice prefers truth tellers, but why is its preference superior to my free speech right (to say whatever I want)?

Kind of a dumb question, but I'm discomforted by guys like Scooter, Bonds, etc. having their lives turned upside down because in weak moment they said something wrong.
2.28.2008 6:40pm
titus32:
That said, whenever I see that Scalia or Thomas has written the majority opinion (especially for a 5-4 court) I know without even bothering to read it that the loser was a civil plaintiff or a criminal defendant, and little guys have fewer rights than they had before.

Are there statistics on this? I ask only because I would never have thought to qualify the issue this way (e.g., 5/4 opinions as opposed to 6/3 opinions, Scalia or Thomas writing as opposed to just joining). I can think of several pro-defendant decisions in which Scalia (and Thomas?) joined (Crawford, Apprendi, Booker).
2.28.2008 7:06pm
Gilbert (mail):
Please, could someone who thinks campaign contributions just are speech explain why it would not make more sense to say that they are, rather, protected by the first amendment as a matter of free association? It just seems like all the reasons we protect speech don't apply, and most of the reasons we protect associations do.
2.28.2008 9:21pm
arbitraryaardvark (mail) (www):
On the issue of anonymous speech, all 9 (then) justices recognized such speech as protected in Buckley v ACLF. I don't think Roberts or Alito have ruled on the issue yet.
Judicial opponents of anonymous speech include Posner and Bauer at the 7th circuit, I forget who was on the panel in the 6th circuit Right to Life case, state courts in CA, IN, and KY.
2.28.2008 10:10pm
Barry P. (mail):
I always find it kind of cute when EV tries to correct some idiot commenter with facts, history, logic and reason. He appears to have the patience of a saint.
2.28.2008 11:44pm
Orielbean (mail):
mendicant, both Libby and Bonds should have either hired competent lawyers to tell them what to say (or what not to say) when in front of people like grand juries or law enforcement officers or the media. I have zero sympathy for the wringing they underwent. Both men went to great pains to cover their wrongdoing (or appearance thereof) and so the people pursuing them had to go down every small avenue possible. It reminds me more of Capone and the tax evasion charges sticking when nothing else could.
2.29.2008 12:21am
Randy R. (mail):
With regards to Rehnquist, there actually was a study done in the 70s. It was mentioned here at VC. A law professor said that he could always determine how R would vote just by who the parties were. If it was person vs. corporation, the corporation wins, if was person vs. gov't, the gov't wins, and if was state vs. federal, the state wins.

Apparently, this held true until the R. died.
2.29.2008 10:35am
PhanTom:
"That said, whenever I see that Scalia or Thomas has written the majority opinion (especially for a 5-4 court) I know without even bothering to read it that the loser was a civil plaintiff or a criminal defendant, and little guys have fewer rights than they had before."

While generally I agree with this rule of thumb, there are several notable exceptions.

The ones that come to mind are Crawford (Scalia writing); Kyllo (same); Apprendi (Scalia joining); and Ring (same),

--PTM
2.29.2008 11:45am
Duffy Pratt (mail):
Randy R.

What if it was a corporation v. the state? Corporation v. the feds?

And how did the rule apply to other business entities? S corps v. C corps? LLCs?

This sort of thing reminds me of the railroad theory of law. Before 1938, the railroad always wins. Afterwards, it always loses. The only difficulty in applying this rule is figuring out which party was more like the railroad when there wasn't actually a railroad involved. (It helped to peek at the results and adjust explanations accordingly.)
2.29.2008 8:35pm