High court protects free speech

Surprise: Fears that the conservative justices would be unsympathetic to First Amendment claims have proved unfounded.

May 27, 2001|By Thomas Healy

THE U.S. Supreme Court's ruling last week that a radio host could not be sued for reporting news that was obtained unlawfully by someone else is the latest reminder that in matters of free speech the actions of the usually conservative Rehnquist court cannot be easily predicted.

When the current conservative majority was cemented in 1992 with the appointment of Justice Clarence Thomas, free-speech advocates worried openly about the future of expressive liberty. After several decades in which liberal justices such as Thurgood Marshall and William J. Brennan Jr. had vigorously defended free-speech rights, they feared that the new court would be mostly deaf to First Amendment claims.

Their concerns were well-founded. During the social turbulence of the 1960s and 1970s, many conservatives had argued for a restrictive reading of the free-speech clause. Robert Bork, the leading light of right-wing legal scholars, had gone so far as to claim that the First Amendment protected only political speech, not artistic or scientific expression. And though Bork's nomination to the court in 1987 was defeated, the judge who took his place - Anthony M. Kennedy - was a solid conservative in his own right.

But the story that has unfolded over the past decade is more complex than some had expected. Although the court has cut back on some First Amendment liberties - most notably, sexually oriented expression - it has been surprisingly sympathetic to free-speech claims.

Among its most significant free-speech rulings, the court has struck down a federal law making it a crime to post indecent material on the Internet that could be accessed by children. The court also has struck down several regulations of campaign activity, including a federal law limiting how much political parties can spend on their candidates and an Ohio statute banning anonymous campaign literature.

In other cases, the court has invalidated hate-crime statutes, restrictions on commercial advertising, and local ordinances barring property owners from posting signs on their land.

A recent study by Eugene Volokh, a UCLA law professor, puts this story into numbers. Of the 33 cases involving free-speech challenges from 1994 to last year, the court sided with the free-speech plaintiff, at least partially, in 20. And in the two free-speech decisions it has issued this year, the court has ruled in favor of the plaintiff.

More striking than these numbers is the breakdown of justices who have been most protective of free speech. Contrary to conventional expectations, conservative justices, not liberals, have voted most often to strike down government restrictions on speech.

Volokh's study shows that Kennedy has taken, by far, the most protective stance toward free speech. He voted for the plaintiff in all but 10 of the 33 cases over the six-year period. Tying for second place are Justices David H. Souter, a Republican appointee who has drifted to the left since taking his seat in 1990, and Thomas, one of the court's most conservative members.

Two of the court's reliable liberals, Justices John Paul Stevens and Ruth Bader Ginsburg, come next on the list. But Justice Stephen G. Breyer, who was appointed by President Bill Clinton in 1994 and is a key member of the liberal bloc, is last. He voted in favor of free-speech plaintiffs in only 14 of the 33 cases, though he has sided with the plaintiffs in the two cases decided this year.

The other three conservatives on the court - Justices Antonin Scalia, Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor - place sixth, seventh, and eighth, respectively.

What explains this seemingly curious lineup? In part, it reflects a more general principle that the political leanings of the justices are not always reliable indicators of their votes in particular cases. Last year, Scalia and Thomas voted to overturn the sentence of a convicted criminal because it was based on allegations that the jury had not been required to consider, while Breyer sided with the prosecution.

But the upsetting of expectations in free-speech cases is also the result of broader shifts in the theoretical perspective that conservatives and liberals bring to the First Amendment.

During the 1960s and 1970s, Democratic liberals were the heirs of a libertarian tradition that distrusted government action (outside of economic regulation) and jealously guarded individual liberties, particularly free speech.

"Debate on public issues should be uninhibited, robust, and wide-open," Brennan wrote in his 1964 opinion in New York Times v. Sullivan, a landmark case that gave news organizations broad protection from libel suits filed by public officials.

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