Judicial Problem: Defending Free Speech Is More Likely When Justices Agree With The Speech

from the doing-it-wrong dept

Democracy, as they say, is messy, but I think the messiest aspect of the American political system is the Supreme Court. Maybe messy isn’t the right word. Maybe baffling would be better. The reason for my thinking so is that, growing up, I was always under the impression that Supreme Court Justices were something they really aren’t. I pictured them as men and women of such knowledge and character that they were almost super-human. After all, these are the supreme-iest judges in the land; you’d think they’d be so far beyond you and I that they’d be almost incomprehensible. An idiot Senator? Sure, I can picture that. Some jackass President? Hell, we jackasses are the ones that vote them in, so sure. But the Supreme Court? Gods, right?

Of course not. It turns out, much to my unfortunate shock, that SCOTUS Justices are every bit as human as the rest of us and that they’re just as guilty as us when it comes to allowing ideologies cloud their judgement. One recent study looked at this, highlighting First Amendment cases to serve as an example.

The study considered 4,519 votes in 516 cases from 1953 to 2011. It was conducted by Professor Epstein, who is about to join the faculty at Washington University in St. Louis; Christopher M. Parker, a political scientist at Centenary College of Louisiana; and Jeffrey A. Segal, a political scientist at Stony Brook University.

That article highlighted Justice Scalia’s voting record, noting that he voted on free speech issues in favor of conservative speech sixty-five percent of the time, but only twenty-one percent of the time in favor of liberal speech. That said, don’t confuse that highlight to indicate that this is a problem only for conservative justices.

“While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”

While this may represent a “duh” moment for many of us, it’s not a problem we should be ignoring. This pervasive kind of group bias represents a very real threat to the supreme law of the Untied States and, if recent trends on the polarization of politics is any indication, it’s only going to get worse. And, while many people might see this as (sigh) yet another opportunity to fall back on their stupid party lines and go to war with the guys on the other side of the aisle, here’s the question specifically about free speech that the article doesn’t address: what if the speech in question is something both sides disagree with?

Fun thought, right? The whole point of free speech rights is that they don’t go away even if you disagree with the speech, yet the study shows that there is a tendency for Justices to vote against speech with which they don’t agree. Take the famous case between the National Socialist Party of America v. Village of Skokie, for instance, and ask yourself whether you think that ruling, which allowed the Nazis to march and assemble in a largely Jewish community was the exception or the rule. It was an immensely important case, even though it allowed some truly horrific people to march in a community that would be most offended by their presence (though they never actually marched). That didn’t matter. The First Amendment is the First Amendment.

Would that same ruling occur today? The study paints an unfortunate picture.

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Comments on “Judicial Problem: Defending Free Speech Is More Likely When Justices Agree With The Speech”

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Anonymous Coward says:

Not surprised anymore

I guess I’m not surprised. It might be my cyncial view of things, but I agree that there was a time when even though there were specific partisan differences, some principles were transcendant. No matter how differently two people thought, there was still a common ground that sprang from Constitutional ideas, and an understanding of how both sides benefitted and flourished from it.

That common ground has been replaced by an ‘all for me, and none for thee’ attitude. Taking a what may be utopian, but worthy ideals, and caring only for an rigidly ideological grab for power.

It really is a sad and terrible thing to consider that the only thing our political powers-that-be care about in regard to the First Amendment, and for the rest of the Constituion, is the power to dictate it to others.

Anonymous Coward says:

Re: Not surprised anymore

That happened when we allowed corporations to take over government. The all for me attitude is pervasive in corporate America so naturally when they were able to seize control of the political process, they made sure the people who were put in power carried that mindset with them.

Anonymous Coward says:

Re: Re: Not surprised anymore

Not sure when this “allowing” took place but I do not recall ever having an input in the matter. And please do not give me that tired old trope “you voted for the bustards – therefore you agreed to whatever they subsequently get away with” because that is so wrong it is beyond laughable.

Anonymous Coward says:

Re: Re: Re: Not surprised anymore

I won’t. It was more of a lack of input and participation that allowed this to occur. People were not outraged when this started happening to stop it. And it wasn’t that people voted for the wrong candidates. It was that people allowed big corporate money to have such an impact on the election process that by and large the only candidates that people had to choose from were these sorts of candidates, such that it no longer mattered whether you voted for them or not.

Anonymous Coward says:

Re: Re: Re: Not surprised anymore

It’s not that the voters agreed to it, it’s that they’re responsible for it because they chose to give power to these people. Imagine if I was in charging of hiring at a company and I kept hiring fuck-ups who harmed the business. I would be seen as bad at my job and probably fired. This is what voters are doing. If voting was a job, most voters would have been fire long ago.

John Fenderson (profile) says:

My turning point

“I pictured them as men and women of such knowledge and character that they were almost super-human.”

I have to admit that I did, too. Not superhuman, but I thought of them as a pretty close approximation of a judicial bench that was impartial, knowledgeable, and doing their best to find justice in very difficult cases. I defended them on many cases even when I disagreed with their ruling, even.

Then I hit my turning point: Bush v Gore. It was a decision so incredibly craven and corrupt that my view of the Supreme Court was altered forever. Now, in my view, they’re no better than Congress or the Presidency.

Anonymous Coward says:

Re: My turning point

I concur with your assessment of that case as a turning point. If you read the opinion in the context of previous opinions on similar cases, what stands out is the tortuous reasoning: it’s painfully clear that the justices reached a conclusion first and then built a (rickety) framework to support it. As a piece of jurisprudence, it’s horribly flawed, and in terms of its consequences for the country, tragically flawed.

It’s not that I expect perfection from the court: it’s that I expect a principled reading of the law and the Constitution leavened with a healthy dose of good sense: conclusions that cannot be reached except by twisting and distorting the existing corpus are quite likely bad conclusions and should be eschewed by the court. Moreover, I expect that they should have read at least as many of the papers of the Founders as I have (hopefully many more!) and should have internalized a sense of what they intended. Jefferson and Paine, Franklin and Madison, all of them, would be rightly appalled at some of the decisions that have been issued.

People — many people — fought, bled and died for the Constitution. I expect the justices to be equally tenacious in its defense.

Anonymous Coward says:

Re: Re: My turning point

I too have to agree that I thought the Supreme Court Justices were the cream of the crop. I too found that after the Bush/Gore ruling I had lost a huge amount of that respect. I now look in that direction with a different set of glasses than I once did. I fear those glass will never be replaced and that vision isn’t one for the better.

Anonymous Anonymous Coward says:


It seems there is no honor amongst their Honors. Here is the text of their current oath of office:

“”I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”



for a bit of history.

Old oath, new oath, combined oath, it is not honored.

saulgoode (profile) says:

My disillusionment with the Supreme Court came with the appointment of Clarence Thomas; not because of his political views or the harassment scandal that arose during his confirmation, but owing to the fact that his entire judicial career included just 18 months as a sitting judge. Up till that point I hadn’t realized that Supreme Court Justice was basically an entry level position.

Whatever says:

Amusement continues

The study reaches a conclusion without considering the more likely alternative:

If the SCOTUS agrees with the speech, it is very likely that the speech in question is more mainstream or more generally acceptable, and thus less likely to run afoul of someone else’s rights. Replace “SCOTUS” with “American public” and you are likely to have seen similar results.

So yeah, junk science.

Anonymous Coward says:

Re: Amusement continues

“If the SCOTUS agrees with the speech, it is very likely that the speech in question is more mainstream or more generally acceptable”

More likely? – I doubt that.
For example, what percentage of the public thinks
1) corporations are people?
2) racism is non existent?
3) voter suppression is not a problem?
4) bribing politicians is ok?

Whatever says:

Re: Re: Amusement continues

1) A very technical point that most people don’t care much about one way or another
2) cite an example. The courts have ruled over and over again that racism is a real issue, but at the same time that affirmative action is not always the right answer.
3) cite an example. Is there any true voter suppression in the US?
4) cite an example. Contributing to, participating in, and offering support to a political campaign is the ultimate in free speech, and one that most people agree with. There are always extreme examples in the Super Pacs, but they are extreme cases in a system that otherwise works well and that the American people generally participate in and support.

Anonymous Coward says:

Re: Re: Re: Amusement continues

You seem to be arguing with the examples provided rather than the point that was made – which was that I doubt a majority of the public believes what you think they believe.

FWIW, the examples were chosen based upon recent SCOTUS rulings and the resulting revulsion felt by many in the public. The SCOTUS rulings were definitely not “mainstream” and certainly were not acceptable.

Ninja (profile) says:

This… Difficulty to accept opposing points of view is inherent to the human being. It’s part of a larger resistance to what is different. And it manifests in many ways. Racism, xenophobia, prejudice against the poorer or people from a determined place even if within the country and so on.

I’ve learned from life that even if you disagree it does not mean the other person is wrong. In fact disagreeing opinions may be both right and merely different paths to the same goal. We still have plenty of evolution and learning before we can truly accept free speech.

Josh King (profile) says:


This sounds like classic garbage-in, garbage-out analysis (although the liberal justices on today’s court would certainly support the findings, given their antipathy for group speech and campaign speech).

But Skokie? Odds are it would come out the same today. Look at the Phelps case from a couple of years back, where an attempt to regulate equally offensive speech (the Wesboro Baptist Church nutbags) was found unconstitutional.

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