Are Liberal or Conservative Justices More Likely to Protect “Hate Speech”?

I blogged yesterday about whether liberal or conservative Americans are more likely to support protections for various kinds of speech, including speech arguing that blacks are genetically inferior — the General Social Survey question that’s most relevant to the debate about protection for supposed “hate speech.” It turns out that liberals are somewhat more likely than conservatives to support protection for such speech, though the gulf isn’t wide, and there’s a substantial split of opinion on both sides.

What about Supreme Court Justices? Since 1970, there have been several cases in which the Court has considered restrictions on what might be said to be “hate speech,” usually racist speech but in one instance misogynistic pornography. As I’ll note below, there are limits to how much this dataset tells us, but I pass it along for whatever it’s worth. So here is the data, with the caveats later. Each vote is classified as “+” if it supported protection for racist or misogynistic speech (or hinted substantially in that direction), “-” if it opposed such protection (or hinted substantially in that direction, and blank if the Justice didn’t express an opinion on the subject.

Justice Ideology Collin Hudnut Dawson R.A.V. Avis Black A Black B %
Brennan L + 100
Marshall L + 100
Stevens L + + + 60
Souter L + + + + 100
Ginsburg L + + 100
Breyer L + 50
White M + + 50
Powell M + 100
Blackmun M + + 50
Burger C 0
Rehnquist C + + + 50
O’Connor C + + 40
Scalia C + + + 75
Kennedy C + + + + 100
Thomas C + + 40

The bottom line result seems to be much the same as what I described for the public at large — liberals are somewhat more likely than conservatives to support protection for what is sometimes labeled “hate speech,” though the gulf isn’t vast, and there’s a substantial split of opinion on both sides. The same also remains even if we exclude Hudnut (which had to do with sex, and which might be hard to categorize for reasons I mention below) and even if we exclude both Hudnut and Collin (perhaps in trying to limit ourselves to post-1990 cases, to reflect the possibility that both conservative and liberal views on free speech have shifted in recent decades). Indeed, even excluding Hudnut and Collin, the result in terms of total votes shows 75% pro-hate-speech-protection for the liberals, 50% for the moderates, and 67% for the conservatives. If you rearrange some of the categories, the results might change slightly; but on balance, I think this probably captures the situation pretty well.

Now on to the details. First, a few general caveats that might limit the relevance of these cases to “hate speech” debates more broadly: The cases don’t generally deal with any solid attempts to outlaw bigoted advocacy generally, and often focus on very narrow restrictions, such as bans on racist “fighting words” (a subcategory of “fighting words,” which is already a recognized First Amendment exception). The cases may have had other factors in play that influence the Justices, such as broader debates about the death penalty (Dawson v. Delaware) or pornography (Hudnut v. American Booksellers Ass’n). Some of the decisions involved denials of discretionary review, so most of the Justices expressed no opinion on the merits (since the refusal to hear a case is often based on factors other than agreement or disagreement with the decision below). Some of the decisions, especially the denials of discretionary review, are somewhat ambiguous in their positions. No Justice was on the Court for all these cases.

Second, an explanation of my ideological labels for the Justices: As with my earlier posts, I combine liberals and moderate liberals into one group, and conservatives and moderate conservatives into one group. I label White and Powell as moderate because that’s how they have generally been understood as Court-watchers, and I think correctly so, if one looks at their views across a wide range of issues. I label Blackmun a moderate because he was generally seen as a conservative in the 1970s but then a liberal in the late 1980s and 1990s; given the makeup of the cases, that averages out to moderate. I label Stevens a liberal because he was generally seen as a moderate in the late 1970s and early 1980s but then a liberal in the 1990s and 2000s; given the makeup of the cases, that averages out to liberal. (I think Stevens genuinely changed his views on some topics, though not necessarily on free speech; I don’t think his labeling as liberal later in his career can be explained solely by the Court’s becoming more conservative.) I label Souter a liberal because I think he was a moderate liberal throughout his tenure on the Court; though he was seen as a conservative when he was first appointed by President Bush, I don’t think he really changed in any appreciable way, and he was quickly recognized to be a liberal. I label O’Connor and Kennedy as conservative because I think that they are on balance moderate conservatives, even though they’ve at times disappointed conservatives with their votes.

Third, a brief summary of the cases:

1. Smith v. Collin (1978), denying discretionary review, and also the earlier decision in the case denying a stay. These came from the famous litigation over the Nazi parade in Skokie, Illinois, in which the lower court upheld the Nazis’ right to march. Justices White and Rehnquist voted to deny the stay, and Justices White and Blackmun voted to rehear the case; both opinions seemed to express some openness to the continued survival of Beauharnais v. Illinois (1952), a decision that upheld bans on defamation of racial and religious groups (an early form of “hate speech” ban). Beauharnais is widely considered to no longer be good law, given New York Times Co. v. Sullivan and later cases, but I read Justices White’s, Rehnquist’s, and Blackmun’s votes and accompanying opinions as at least suggesting the view that Beauharnais should be still seen as valid.

2. Hudnut v. American Booksellers Ass’n (1986), affirming without opinion the Seventh Circuit decision striking down the Indianapolis anti-pornography ordinance (drafted in large part by Catharine MacKinnon), which banned even pornography that fell outside the existing “obscenity” exception, so long as that pornography presented women “as sexual objects who enjoy pain or humiliation,” “as sexual objects for domination,” “in scenarios of degradation,” “as sexual objects who experience sexual pleasure in being raped,” and so on. The Court’s affirmance was a decision on the merits, but one that set a very narrow precedent. (Such “summary affirmances” were not uncommon until the Court’s jurisdictional statute was changed in the late 1980s.) Chief Justice Burger and Justices Rehnquist and O’Connor voted to hear oral argument in the case, which I read as suggesting that the ordinance might well be constitutional.

3. Dawson v. Delaware (1992) reversed a death penalty determination that was based partly on the defendant’s membership in the Aryan Brotherhood prison gang; the Court held that the membership by itself only showed the “abstract beliefs” of the gang, and wasn’t sufficiently linked at trial to the culpability or future dangerousness of the defendant. Justice Thomas dissented, arguing that such a link was present.

4. R.A.V. v. City of St. Paul (1992) struck down an ordinance that specially punished certain kinds of insulting words that were based on race, religion, and similar categories. Chief Justice Rehnquist and Justices Scalia, Kennedy, Thomas, and Souter held that the ordinance was unconstitutional even if it was limited to so-called “fighting words,” which could generally be banned; selectively banning bigoted fighting words, the majority held, violated the First Amendment. The concurring Justices, White, Blackmun, Stevens, and O’Connor, concluded that selectively banning bigoted fighting words would be constitutional, though it voted to strike down the ordinance because the concurring Justices didn’t think it was limited to fighting words. Probably the best way of viewing the split was five Justices being more open to protecting racist speech, and four Justices being more open to some quite modest restrictions on such speech.

5. Avis Rent a Car System, Inc. v. Aguilar (2000) declined to review a lower court case that upheld an injunction against racist epithets in the workplace. As with Smith v. Collin, this decision didn’t express an opinion on the merits. Still, Justice Thomas did dissent from the denial of review, and strongly suggested that the lower court decision was wrong.

6. In Virginia v. Black (2003), the Supreme Court considered three convictions under a Virginia statute banning cross-burning; it struck down one (which I label “Black A”) by an 8-1 vote, on the grounds that that cross-burning was just a statement of racist political ideas, and upheld two others (which I label “Black B”) by a 6-3 vote, on the grounds that the single cross-burning involved in those two cases was an individually targeted threat that therefore fell within the “true threats” exception. The exact details are complicated, but I think it’s fair to say that Justice Thomas was the sole dissenter (on the more speech-restrictive side) in Black A, and Justices Kennedy, Souter, and Ginsberg were the dissenters (on the more speech-protective side) in Black B.

I do not include in this list Forsyth County v. Nationalist Movement (1992), in which the speakers happened to be racist, but in which the law did not target racist speakers as such, but rather imposed extra fees on speakers that were likely to draw a hostile audience.

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