How the Justices Voted
in Free Speech Cases,
1994–2002
Eugene Volokh*
This article is an updated
version of How the Justices Voted in Free Speech Cases, 1994-2000, 48 UCLA L. Rev. 1191 (2001).
Which
Justices generally take a broader view of the freedom of speech and which take a narrower view? Conventional wisdom still tells us that this
should break down mostly along “liberal”/“conservative” lines, as it seemingly
did during the 1970s and much of the 1980s.
But it turns out that this is no longer true.
Between
the 1994–1995 Term, the last in which the U.S. Supreme Court’s personnel
changed, and the 2001–2002 Term, the last completed before this Article was
updated, the Court has decided 47 cases involving the freedom of speech
(including the freedom of expressive association). This data set provides an opportunity to
rigorously identify the free speech maximalists and minimalists.
Here
is the method I used to do this:
1. For each of the 47 cases, I counted 1 point
each time a Justice voted for the free speech claimant, and 0 points each time
the Justice voted against.
2. I then adjusted up by 1/3 whenever the
Justice wrote or joined an opinion that was more speech-protective than the
majority (or plurality) or than the lead dissent, and down by 1/3 whenever the
Justice wrote or joined a similarly more speech-restrictive opinion.
3. For the cases that involved two or three
separate issues, I split the points accordingly.
4. I then divided the result by the number of
cases, and multiplied by 100 to produce a
percentage. Recognizing that the 1/3
adjustments are somewhat arbitrary, I also repeated the entire process
with adjustments of 40 percent and of 1/6 in place of the 1/3 figure.
I deliberately looked only at the bottom line. I refrained from injecting my views about
whether the Justices were right or wrong,[1] and
from subdividing the cases along categories (for example,
government-as-sovereign vs. government-as-funder, sexually themed speech vs.
political speech) 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—I think the number of cases is large enough to
mitigate such effects, especially when one treats scores that were very close
(differing by less than one case’s worth, or 2.1%) as ties.
Here are my results:
|
1 |
Kennedy |
74.5% |
|
2 (tie) |
Thomas |
61.1% |
|
|
Souter |
61.0% |
|
4 |
Stevens |
55.7% |
|
5 |
Ginsburg |
53.6% |
|
6 |
Scalia |
49.6% |
|
7 |
O’Connor |
44.7% |
|
8 |
Rehnquist |
41.8% |
|
9 |
Breyer |
39.7% |
The results with adjustments
of 40 percent and 1/6 instead of 1/3 were almost identical.[2]
Many people, I think, would be a bit surprised by these
results. Of the two Democratic
appointees, one is #5 and one is #9; they have an average of 46.6 percent,
compared to 55.5 percent for the Republican appointees. Even counting Justices John Paul Stevens and
David Souter as well as Justices Ruth Bader Ginsburg
and Steven Breyer as “liberals” (a view derived from their votes on matters
such as federalism and racial preferences),
the “conservatives” have an aggregate percentage of 54.3 percent and
the liberals have 52.5 percent, basically a draw. Justices Antonin Scalia and Clarence Thomas,
who often agree on many issues, are fairly far from each other. Justice Thomas, who is still seen by many as
an archconservative, is tied for second place.
Of course, when one disaggregates the votes, some
(though not all[3]) of
the results in particular types of cases may seem more politically predictable.
Justices Stevens and Ginsburg, for
instance, are likelier than others to conclude that the First Amendment
protects campaign-related speech and expressive association less than it does
other kinds of speech; likewise for religious speech by private citizens using
government facilities. Justice Scalia is
likely to take the opposite views, but tends to conclude that sexually themed
speech should be less protected.
These Justices naturally have thoughtful and plausible
reasons why they draw the distinctions that they draw. Generalizing about where a Justice stands on
“free speech” may thus be dangerous, precisely because there are good arguments
for treating different kinds of speech differently; this may lead us to query
whether counting the Justices’ votes in all free speech cases is a valuable
enterprise.[4]
But it seems to me that such an approach is nonetheless
helpful, for three reasons:
1. Many people do
indeed generalize about the Justices’ general approach on a variety of
matters.
Laypeople, journalists, law students, and even law
professors talk about whether a particular judge generally takes a broad view
of free speech or a narrow one,[5] and
their claims may often be based on inaccurate assumptions drawn from the
Justice’s political orientation. My
guess is that most law students, for instance, would erroneously assume that
Justice Breyer, a Democratic appointee, is a free speech maximalist and that
Justice Thomas, a conservative Republican appointee, is a free speech
minimalist.
Perhaps in a perfect world people wouldn’t draw such
generalizations that fail to distinguish the many different issues that come up
in different free speech cases. But
given that people do feel the need to generalize, generalizations based on the
facts will be more reliable than ones based on political prejudices.
2. Moreover,
there may be some value after all in broad generalizations about a Justice’s
view of free speech.
It’s easy for Justices to propose distinctions between,
say, sexually themed speech and other kinds of speech, or campaign-related
expressive association and other kinds of expressive association. But in a system like ours, which is founded
on precedent and analogy, restrictions on one kind of speech tend to lead to
restrictions on other kinds. Doctrines
that emerge in the context of sexually themed speech, for instance, such as the
“secondary effects” test, may end up being applied to other kinds of speech.[6] The use of strict scrutiny to uphold a
content-based restriction on campaign-related speech may weaken strict scrutiny
in general, and lead to the acceptance of other content-based restrictions in
other contexts.[7]
Excessive particularism in free speech cases may thus sometimes be justifiably
criticized (at least by those whose jurisprudential philosophy leads them to
worry about the downstream effects of decisions[8]),
and a more consistent array of votes in one or another direction may be justifiably applauded. And voters, whether among the public or in
the Senate, may conclude that they prefer new Justices who seem more likely to
side with the consistent free speech maximalists (or minimalists), even if the
voters disagree with one or another position that the maximalists (or
minimalists) have taken.
3. A Justice’s
general track record in free speech cases may be relevant, though far from
dispositive, in evaluating that Justice’s new doctrinal proposals.
Proposals often acquire rhetorical strength when they
deviate from what might normally be expected of their authors. When a prominent liberal Democrat speaks out
in favor of some abortion restriction, people are more impressed than when a
conservative Republican does the same; likewise
when a prominent Republican endorses restrictions on guns.[9] People may reason that if even he is willing to endorse this
proposal despite the fact that it would seem to go against his grain, then the
proposal must be sensible indeed.[10]
The same applies for free speech. Justices can trade on their reputations for
being free speech maximalists to support their arguments that this time the
speech should be restricted.[11] And the converse is likewise true: Note how
some defended the flag burning decisions, during an era when free speech
maximalism was seen as a predominantly liberal position, by pointing out that
the generally conservative Justices Anthony Kennedy and Antonin Scalia voted
with the usually liberal Justices William Brennan, Thurgood Marshall, and Harry
Blackmun.[12]
Now one might condemn this whole genre of argument as
being ad hominem; after all, a proposal should be decided on its merits, not on
the political views of its endorsers.
But this objection isn’t fully persuasive, because a big part of our
evaluation of free speech proposals consists not of pure logic, but of
speculation about the future.[13] Will this narrow exception (say, for flag
burning) likely lead to a broader one?
Will this precedent eventually lead courts to endorse not just this
restriction but other ones?
These are serious concerns in a system built on
analogy, and addressing them requires judgment and experience as much as
abstract reasoning. And because the
Justices are seen as having unusually well-informed judgment about the
consequences of Supreme Court decisions, we can reasonably put extra stock in
their views when they speak out against their normal predilections.
Thus, if a free speech maximalist had been assured by
Justice Brennan that a particular proposed
exception is unlikely to eventually expand unduly, it would have made
sense for that maximalist to defer in some measure
to Justice Brennan’s judgment. On the
other hand, if the assurance comes
from Chief Justice William Rehnquist or Justice Stephen Breyer, the
observer might not be equally appeased: Both Justices are honorable men, but
their assurances are likelier to reflect their normal tendencies to support
many speech restrictions rather than any
judgment that this particular exception is unusually low-risk. And to employ this sort of reasoning, we need
to know who the Court’s free speech maximalists and minimalists really are.
_______
Some of the above is speculation. Perhaps ultimately there’s not that much to be learned from how a Justice generally
votes on free speech questions, as opposed to how he votes on specific
cases involving, say, sexually themed speech or commercial advertising.
But the vote tallies are not speculation: They reveal
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.[14] Many of the
strongest libertarian voices in favor of free speech rights
and against government power now come from conservatives at least as much as
from liberals.
Appendix: The Raw Data
|
Case Name |
Rehnquist |
Stevens |
O’Connor |
Scalia |
Kennedy |
Souter |
Thomas |
Ginsburg |
Breyer |
|
Republican Party v. White, ___ |
1 |
0 |
1 |
1 |
1 1/3 |
0 |
1 |
0 |
0 |
|
Watchtower Bible & Tract Soc’y v. Stratton, 122 |
0 |
1 |
1 |
1 |
1 |
1 |
1 |
1 |
1 |
|
Ashcroft v. ACLU, [d] 122 |
0 |
1 |
1/6 |
0 |
1/3 |
1/3 |
0 |
1/3 |
1/6 |
|
|
0 |
1 |
0 |
-1/3 |
1/3 |
1 |
0 |
1 |
2/3 |
|
Thompson v. Western States Med. Ctr., 122 |
0 |
0 |
1 |
1 |
1 |
1 |
1 1/3 |
0 |
0 |
|
Ashcroft v. Free Speech Coal.,[a] 122 |
0 |
1 |
1/2 |
0 |
1 |
1 |
5/6 |
1 |
1 |
|
Thomas v. Chicago Park Dist., 122 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
Lorillard Tobacco Co. v. Reilly,[a] 121 |
2/3 |
1/3 |
2/3 |
2/3 |
2/3 |
1/2 |
8/9 |
1/3 |
1/3 |
|
FEC v. |
2/3 |
0 |
0 |
1 |
1 |
0 |
1 |
0 |
0 |
|
|
1 |
1 |
0 |
1 |
1 |
1 |
1 |
0 |
0 |
|
Good News Club v. |
1 |
0 |
1 |
1 |
1 |
0 |
1 |
0 |
2/3 |
|
Bartnicki v. Vopper, 121 |
0 |
1 |
2/3 |
0 |
1 |
1 |
0 |
1 |
2/3 |
|
Shaw v. Murphy, 121 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
1/3 |
0 |
|
Legal Service Corp. v. Velazquez, 531 |
0 |
1 |
0 |
0 |
1 |
1 |
0 |
1 |
1 |
|
|
0 |
1 |
-1/3 |
1/3 |
1 |
-1/3 |
1/3 |
-1/3 |
-1/3 |
|
Boy Scouts v. Dale, 530 |
1 |
0 |
1 |
1 |
1 |
0 |
1 |
0 |
0 |
|
Hill v. |
0 |
0 |
0 |
1 |
1 |
0 |
1 |
0 |
0 |
|
|
1 |
0 |
1 |
1 |
1 |
1 |
1 |
0 |
1 |
|
|
0 |
1 |
0 |
-1/3 |
1 |
1 |
2/3 |
1 |
0 |
|
City of |
0 |
1 |
0 |
-1/3 |
0 |
1/2 |
-1/3 |
1 |
0 |
|
Bd. of Regents v.
Southworth, 529 |
0 |
-1/3 |
0 |
0 |
0 |
-1/3 |
0 |
0 |
-1/3 |
|
Nixon v. Shrink |
0 |
-1/3 |
0 |
1 |
2/3 |
0 |
1 |
-1/3 |
-1/3 |
|
Greater |
2/3 |
1 |
1 |
1 |
1 |
1 |
1 1/3 |
1 |
1 |
|
Buckley v. Am.
Constitutional Law Found., Inc., 525 |
1/3 |
1 |
1/3 |
1 |
1 |
1 |
1 1/3 |
1 |
1/3 |
|
NEA v. Finley,[b]
524 |
0 |
0 |
0 |
-1/3 |
0 |
1 |
-1/3 |
1/3 |
0 |
|
|
0 |
1 |
0 |
0 |
0 |
1 |
0 |
1 |
0 |
|
|
1/2 |
1 |
1/2 |
1 |
1 |
1 |
1 |
1 |
1 |
|
Glickman v. Wileman Bros.
& Elliott, Inc., 521 |
1 |
0 |
0 |
1 |
0 |
1 |
1 1/3 |
0 |
0 |
|
Turner Broad. Sys., Inc.,
v. FCC, 507 |
0 |
0 |
1 |
1 |
0 |
0 |
1 |
1 |
0 |
|
Timmons v. Twin Cities Area
New Party, 520 |
0 |
1 |
0 |
0 |
0 |
2/3 |
0 |
1 |
0 |
|
Schenck v. Pro-Choice Network,[a]
519 |
1/2 |
1/2 |
1/2 |
1 |
1 |
1/2 |
1 |
1/2 |
0 |
|
|
0 |
2/3 |
1/3 |
0 |
1 |
2/3 |
0 |
1 |
2/3 |
|
O’Hare Truck Serv., Inc. v.
City of |
1 |
1 |
1 |
0 |
1 |
1 |
0 |
1 |
1 |
|
Bd. of |
1 |
1 |
1 |
0 |
1 |
1 |
0 |
1 |
1 |
|
|
1 |
0 |
1/2 |
1 |
1 |
1/2 |
1 |
0 |
1/2 |
|
44 Liquormart, Inc. v. |
2/3 |
1 |
2/3 |
2/3 |
1 |
2/3 |
1 1/3 |
1 |
2/3 |
|
Morse v. Republican Party,
517 |
2/3 |
0 |
1/3 |
1 |
2/3 |
1/3 |
1 |
0 |
1/3 |
|
Rosenberger v. Rector,[c]
515 |
1 |
0 |
1 |
1 |
1 |
0 |
1 |
0 |
0 |
|
|
1 |
0 |
2/3 |
1 |
1 |
2/3 |
1 |
0 |
2/3 |
|
|
0 |
1 |
0 |
0 |
1 |
1 |
0 |
1 |
0 |
|
|
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
Hurley v. Irish-Am. Gay,
Lesbian & Bisexual Group, 515 |
1 |
1 |
1 |
1 |
1 |
1 |
1 |
1 |
1 |
|
Rubin v. Coors Brewing |
1 |
1 1/3 |
1 |
1 |
1 |
1 |
1 |
1 |
1 |
|
McIntyre v. |
0 |
1 |
1 |
0 |
1 |
1 |
1 |
1 |
1 |
|
|
0 |
1 |
1/2 |
0 |
1 |
1 |
0 |
1 |
1 |
|
Lebron v. Nat’l R.R.
Passenger Corp., 513 |
1 |
1 |
0 |
1 |
1 |
1 |
1 |
1 |
1 |
|
|
1 |
1 |
1 |
0 |
1 |
1 |
0 |
1 |
1 |
|
TOTAL |
19 2/3 |
26 1/6 |
21 |
23 1/3 |
35 |
28 2/3 |
28 13/18 |
25 1/6 |
18 2/3 |
|
PERCENTAGE |
41.8 |
55.7 |
44.7 |
49.6 |
74.5 |
61.0 |
61.1 |
53.6 |
39.7 |
[a] This case involved two or
more first amendment claims. The Justices’
scores on each claim were averaged, weighing each claim equally to avoid
subjective judgments about which claim was more important.
[b] Justice Ginsburg did not write a separate
opinion that was more speech-protective than the majority’s, but she did
decline to join part of the majority’s opinion that expressed a relatively non-speech-protective
view.
[c] Justice O’Connor wrote a separate concurrence
that might be seen as potentially less speech-protective, but she joined the
majority’s opinion, and her opinion seemed to be focused on how the
Establishment Clause would play out in situations where the Free Speech Clause
was less implicated. (This is unlike
Justice Breyer’s concurrence in Good News Club v. Milford Central School,
which seemed to suggest that the Establishment Clause may indeed justify
certain restrictions even when the Free Speech Clause is otherwise fully
implicated.) Likewise, Justice Thomas’s
separate concurrence seemed to be focused only on the Establishment Clause
question.
[d] Justices O’Connor and Breyer wrote opinions
that took a slightly broader view of free speech than the plurality’s opinion;
and Justice Kennedy’s opinion, which was joined by Justices Souter and
Ginsburg, took a still broader view, though all these Justices voted to reject
the free speech claim as it was presented in this particular case. I therefore marked the O’Connor and Breyer
positions as 1/6, and the Kennedy, Souter, and Ginsburg position as 1/3.
Note: I excluded Brentwood Academy v. Tennessee
Secondary School Athletic Ass’n (2001) and City News & Novelty v.
City of Waukesha (2001) because they focused on general constitutional or
procedural issues (state action and mootness) rather than the First Amendment
as such, even though they did arise in the First Amendment context. I also excluded Cook v. Gralike (2001)
because the majority opinion focused solely on the Article I question rather
and only a two-Justice concurrence squarely discussed the Free Speech Clause.
* Professor
of Law, UCLA School of Law (volokh@law.ucla.edu). The results of this study were briefly
summarized in Eugene Volokh, Where the
Justices Are Unpredictable, N.Y.
Times,
[1]. For instance, while I generally take a
fairly broad view of free speech, I think Justices Antonin Scalia and Clarence
Thomas in National Endowment for the Arts
v. Finley, 524 U.S. 569 (1998), were right to conclude that the NEA was
free to engage in viewpoint discrimination in its funding decisions. See
Eugene Volokh, How Free Is Speech When
the Government Pays?, Wall St. J.,
Likewise, I counted campaign finance cases and cases involving
religious speech by nongovernmental actors as free speech/association cases,
because the U.S. Supreme Court has consistently treated them this way. See,
e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (concluding, by at least a
seven-to-one vote, that restrictions on campaign contributions and expenditures
pose a serious first amendment issue).
Others might prefer to categorize the cases in other ways, reflecting
their own views of what speech should be protected. Cf.,
e.g., CBS News: The Early Show
(CBS television broadcast, Oct. 30, 2000), 2000 WL 6655500 (remarks of Prof.
Alan Dershowitz) (faulting an earlier article that was based on this study for
“miscount[ing] and talk[ing] about prayer cases [presumably referring to the
cases involving religious speech by private persons] . . . and
cases on campaign contributions as free speech cases,” and thus “not [being] an
accurate article”). I believe that the
more objective approach is to use the Supreme Court’s definition of what
constitutes a free speech/association case, rather than creating my own.
[2]. Here are the results using adjustments of
1/6:
|
1 |
Kennedy |
74.5% |
|
2 (tie) |
Souter |
62.4% |
|
|
Thomas |
60.3% |
|
4 |
Stevens |
56.0% |
|
5 (tie) |
Ginsburg |
52.8% |
|
|
Scalia |
51.4% |
|
7 (tie) |
O’Connor |
45.2% |
|
|
Rehnquist |
43.3% |
|
9 |
Breyer |
41.7% |
Souter and Thomas are just barely tied, with a
difference of a bit less than one case.
Here are the results using adjustments of 40 percent:
|
1 |
Kennedy |
74.5% |
|
2 (tie) |
Thomas |
61.4% |
|
|
Souter |
60.4% |
|
4 (tie) |
Stevens |
55.5% |
|
|
Ginsburg |
53.8% |
|
6 |
Scalia |
48.9% |
|
7 |
O’Connor |
44.4% |
|
8 |
Rehnquist |
41.3% |
|
9 |
Breyer |
38.9% |
[3]. For instance, Buckley v. American Constitutional Law Foundation, Inc., 525 U.S.
192 (1999), is an anonymous speech case in which Justice Thomas takes the most
speech-protective view, Justices Stevens, Scalia, Kennedy, Souter, and Ginsburg
take a fairly speech-protective view, and Chief Justice Rehnquist and Justices
O’Connor and Breyer take the least speech-protective view; 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), is a
commercial speech case in which Justice Thomas takes the most speech-protective
view, Justices Stevens, Kennedy, and Ginsburg take a fairly speech-protective
view, Justice Scalia is relatively undecided, and Chief Justice Rehnquist and
Justices O’Connor, Souter, and Breyer take a less speech-protective view. Neither of these lineups can be easily
explained on conservative/liberal lines.
[4]. This of course is a common objection to
many kinds of quantitative surveys of court decisions; such surveys necessarily
aggregate together cases that involve subtly different legal issues.
Note, though, that it’s a mistake to overstate the degree to which one
category of free speech cases accounts for the results found in this
study. One response to an early report
of these results speculated that rather than saying “that those who support
free speech should be most comfortable with Republican nominees,” “[i]t would
be much more accurate to say that you should be comfortable with Republican
nominees if you want the Supreme Court to strike down campaign finance
laws.” Cass R. Sunstein, Letter to the
Editor, Which Free Speech?, N.Y. Times,
[5]. This is often erroneously couched as
“Justice X believes in free speech” and “Justice Y doesn’t.” I think this is an unsound locution, because
it suggests that there’s only one True Vision of free speech, that it’s a
maximalist one, and that those who disagree with it therefore don’t really
believe in free speech. It seems to me
that it’s less ideologically loaded to ask which of the Justices has a broader
or narrower vision of the boundaries of free speech.
[6]. See,
e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)
(announcing the secondary effects test in a pornography case); Boos v. Barry,
485 U.S. 312 (1988) (plurality opinion) (applying the test to political speech,
over the concurrence’s objections); R.A.V. v. City of St. Paul, 505 U.S. 377
(1992) (applying the test to political speech, with no objection from other
opinions).
[7]. See,
e.g., cases cited in Eugene Volokh, Freedom
of Speech, Shielding Children, and Transcending Balancing, 1997 Sup. Ct. Rev. 141, 170–71 &
nn.92–100.
[8]. See, e.g.,
[9]. See, e.g., Representative Billy Tauzin
(R-La.), Republican Leadership Deliver Remarks Opening the Republican Platform
Committee Hearings (Aug. 5, 1996), in
FDCH Political Transcripts (“If you believe as I do that legalized abortion is
morally wrong, especially the almost unspeakable partial birth abortion that even Senator Moynihan observed was as
close to infanticide as anything he had ever seen, then speak out against it.”
(emphasis added)); Editorial, Brady Bill,
Houston Chron.,
The Brady bill is not an anti-gun bill, as
opponents frequently contend. It
infringes not a whit on Americans’ Second Amendment right to keep and bear
arms. Even Ronald Reagan, a lifetime member of the National Rifle
Association who opposed a federal waiting period during his presidency, has had
his mind changed by the rising tide of violence. Reagan now says the Brady bill is just common
sense.
[10]. This is a loose analogue of the logic
behind the “declaration against interest” exception to the hearsay rule. See
also Ward Farnsworth, Talking out of
School, 81 B.U. L. Rev. 13,
53–54 (2001) (discussing this “declaration against interest” point, though as
to law professors rather than judges).
[11]. Cf.,
e.g., Sch. Dist. v. Schempp, 374
[12]. See,
e.g., Thomas Blumenthal, Bill of
Rights Survives Another Year, St.
Louis Post-Dispatch,
The second assault on the First Amendment was a
second cheap attempt at passing flag-burning legislation in response to
presidential threats to propose a flag-burning amendment to the
Constitution. For the second time in as
many terms, the Supreme Court rejected the legislation as
unconstitutional. Not even
ultra-conservative Justice Antonin Scalia agreed with the naysayers on this
issue.
[13]. Note also that lay observers, who may feel
unable to judge the arguments fully on the merits, might find it especially
useful to have a sense of where a Justice’s normal predilections lie. Just as such an observer may be more willing
to trust the soundness of a nine-to-zero decision than of a five-to-four
decision, so he may be more willing to trust a speech-restrictive opinion
written by someone who’s usually a free speech maximalist than a similar
opinion written by someone who usually takes a more restrictive view.
[14]. I am of course not the first to observe
that some such shift has occurred. See, e.g., Jack M. Balkin, Ideological
Drift and the Struggle over Meaning, 25 Conn.
L. Rev. 869 (1993). However, I
hope my analysis here is useful because it describes the shift
quantitatively. Among other things, I
suspect that even those observers who realize that some conservative Justices
have begun to take a broader view of free speech may be unaware of the full
magnitude of this effect, and of the magnitude of the opposite trend as to at
least one liberal Justice.