NCPA - National Center for Policy Analysis

Justices Scored On Free Speech

October 31, 2000

It is not easy to predict how Democratic or Republican Supreme Court appointees will vote -- and this is especially true of free-speech opinions.

Law professor Eugene Volokh compiled a free-speech scorecard of the nine justices currently serving on the U.S. Supreme Court from 33 cases decided in the last six years -- involving such things as pornography, picketing, the media and commercial speech -- and assigned a point for each case where a justice voted for the free-speech claimant, adjusting up or down for a separate opinion taking a more or less speech-protective stance than his colleagues.

  • The justice who takes the broadest view of free-speech rights is Anthony M. Kennedy, a Reagan appointee, says Volokh; he voted for free speech claimants 74 percent of the time.
  • Justices Thomas and Souter (Bush appointees) were both at 63 percent, and Ruth Bader Ginsburg (a Clinton appointee) and John Paul Stevens (Ford) were virtually tied, at 58 percent and 57 percent.
  • Antonin Scalia (Reagan) was next, at 52 percent, followed by Chief Justice William A. Rehnquist (Nixon) and Sandra Day O'Connor (Reagan) at 46 percent and 45 percent.
  • Justice Stephen G. Breyer (Clinton) voted for the free-speech claimant only 40 percent of the time.

Generalizing from these cases where a justice stands on "free speech" can be misleading.

"It's just not sound to assume that the left generally sides with speakers and the right with government officials who want to curb them," concludes Volokh.

Source: Eugene Volokh (University of California at Los Angeles), "Where the Justices Are Unpredictable, " New York Times, October 30, 2000.


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