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):
| 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% |
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:
- 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).
- 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).
- 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):
- Dorf's Reply:
- Living Constitutionalism:
- Liberals, Conservatives, and Free Speech:
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.
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.
I'm sure you didn't mean to imply that Thomas was a liberal judge...but it sure comes across that way.
Liberals seem to give more respect to protecting the actual ability for all people to speak on a wider variety of topics.
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.
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).
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.
Apparently, this held true until the R. died.
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
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.)