Which Justices Have the Broadest (and Narrowest) Views of Free Speech?

I’ve just updated my Excel spreadsheet of the Justices’ votes in free speech cases to include 1994 to 2003 — 10 years in which the Court’s makeup has remained the same. Here are the results, with the Justices ranked from having the broadest aggregate view of free speech protection to the narrowest aggregate view.

Ranking, from most speech-protective (#1) to least (#9)

Justice

Score, out of 57 cases

#1

Kennedy

39

#2-3 (differences of <1 point treated as ties)

Souter

32

#2-3

Thomas

31.7222

#4

Stevens

29.6667

#5

Ginsburg

28.5

#6

Scalia

25.4167

#7-8

O’Connor

21.5

#7-8-9

Rehnquist

21.1667

#8-9

Breyer

20.5

For (1) a description of my method, (2) an explanation of why it makes some sense to look at Justices’ overall votes on a wide range of free speech issues, and (3) an acknowledgment of the limitations of such aggregate results, see here.

As I stress in the article I cite to, I don’t want to overstate the importance of such aggregate data. Still, many laypeople, journalists, and even scholars do make generalizations about the Justices (e.g., Thomas is a conservative and therefore has a narrow view of free speech, Breyer is a liberal and therefore has a broad view), and there is some value to such generalizations. If such generalizations are made, they should at least be accurate.

The Excel spreadsheet is still tentative; I’d love to hear any corrections that people might have. But before e-mailing me any proposed changes, please (1) make sure you’ve read my scoring method, (2) make sure you’ve recently read the case, and (3) tell me specifically which scores you think should be changed, and why.

Also, remember that I’m not counting whether I think the Justices reached the right result — only whether they reached a more or less speech-protective result (and speech-protective in a pretty narrow sense, focusing on speech restrictions by the government and not on the effect on the overall level or quality of public speech).

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