Study: Justices More Likely To Support Free Speech They Agree With

In the Supreme Court, free speech is often a partisan issue.

Justices — liberal and conservative — are more likely to vote for free-speech rights when the speaker shares their ideology, according to an eye-opening new study by the University of Southern California which looks at 4,519 votes from 1953 to 2011 and concludes that “justices are opportunistic free speechers.”

The most opportunistic member over that span was found to be Justice Antonin Scalia, who was just over three times as supportive of free-speech rights of conservatives as compared to liberals.

Not far behind him was Justice Clarence Thomas, who was just under three times as likely to back conservatives’ free-speech rights over liberals.

Justices Anthony Kennedy and Sandra Day O’Connor — both Reagan appointees, and often swing votes — were also found to have a statistically significant preference for free speech rights of conservatives over liberals.

The disparity exists with liberal members, too. Justice John Paul Stevens, who retired in 2010, was likelier to support the free speech claim by a liberal as compared to a conservative. Clinton appointees Ruth Bader Ginsburg and Stephen Breyer were not found to have a statistically significant preference in their cases.

“[Justices’] votes are neither reflexively pro- or anti-the First Amendment but rather pro- or anti- the speaker’s ideological enclave,” the researchers say.

The USC study measured the percentage of support for free speech claims by justices. The results for Bush appointees Samuel Alito and John Roberts could not be fully modeled, given their fewer votes, but early data suggest they follow a highly opportunistic pattern, too. Obama appointees Elena Kagan and Sonia Sotomayor were excluded from the study because they have not yet cast enough First Amendment votes in their time on the court.

Below is a table from a summary of the findings as prepared for the New York Times, which first reported on the study Monday. The paper, by Lee Epstein, Christopher M. Parker and Jeffrey A. Segal, is titled, “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.”

Photo credit: AP; split by TPM’s Brendan James