Conservative Justices Far More Biased on Free Speech

There’s a fascinating new study by Lee Epstein of the USC Law School that looks at how justices voted on free speech cases from 1953 to 2010. It shows that all justices are more likely to uphold the legality of speech that agrees with them ideologically, the conservatives on the court are far more likely than the liberals to do so. Here’s a chart showing how the most recent long-serving justices voted in such cases:


Note that the gap between how conservatives vote when liberal speech is at issue and how liberals vote when conservative speech is at issue is much, much larger. None of the four most liberal justices here have a gap of more than 16 points; none of the four most conservative justices have a gap of less than 42 points. The in-group bias of the conservative justices is far more prevalent and they are much more likely to support only speech that they agree with.

One might chalk that up to the fact that the liberal justices are just more supportive of free speech in the abstract and that’s clearly true. All of them voted to uphold the right to express conservative views at least 40% of the time. But that wouldn’t explain why all of the conservative justices supported the expression of conservative views at least 53% of the time and none of them supported the expression of liberal views more than 23% of the time. That gap is really quite staggering even with our understanding of in-group bias.

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  • Justice – how does it work!?! You can’t explain THAT!

  • R Johnston

    It’s not difficult to understand once you acknowledge that there’s no actual jurisprudence to conservative “jurisprudence.” Conservative “legal” doctrine as currently constituted is strictly antithetical to the concept of the rule of law. It’s not just a problem with free speech cases; conservative “jurisprudence” is entirely lacking in actual legal principles across all aspects of jurisprudence.

    Conservative legal claims are the textbook example of bullshitting.

  • jaybee

    Ed, you just don’t get it. The Originalists know that the founding fathers were for conservative free speech and against liberal free speech.

  • Crimson Clupeidae

    Breyer seems to be the most consistent one there. Interesting study.

  • Michael Heath

    I wonder whether the difference becomes even more glaring when considering just individuals. (I assume the above report includes group speech like corporations and unions.)

  • Duh. Conservatives protect speech that needs to be protected, like prayers to start city council meetings and other issues that protect the majority and their Rights from minorites and their “rights”, while Liberals flock to defend filth like pornography and garbage like “Bong hits for Jesus”.

  • bryanfeir

    Mostly off topic, but it probably says something about me that the first thing I thought of when I saw that chart, even before actually looking at the contents, was ‘Wow, Computer Modern font, that looks exactly like it was set up in LaTeX.’

  • howardhershey

    After glancing through the actual data, — appendix p.7

    it is clear that although the above holds for the *current* or *recent* members of the court, a larger representation of justices shows comparable levels of liberal ‘bias’ if you include justices like Black, Douglas, Marshall, and Warren. The larger point is that both liberal and conservative justices have their biases and express them in their opinions.


  • 3324jeff

    howardhershey – I think it may be challenging to compare the voting behavior of justices from disparate eras (like comparing the voting patterns of the justices from the 1950’s to those fifty years later), because the nature of what was considered acceptable – and/or litigatable – has changed radically over the past half century. Much of what we now consider abusive and unacceptable language today, was acceptable *policy* fifty years ago, especially as relates to race/racism or gender/sexual harassment. And that reflects in the case mix upon which the bias percentages are built.

    If you dig into the raw data further behind appendix p.7 [1], Justice Black, for example, sat for 170 cases of liberal speech, and only 14 cases of conservative speech. Deciding just one extra conservative case for pro-speech would narrow Justice Black’s “bias” by 30% just by itself.

    In contrast, Justice C. Thomas sat for 52 cases of liberal speech, and 53 cases of conservative speech. Justice Scalia sat for 92 cases of liberal speech, and 69 cases of conservative speech. Perhaps in part because of the changing nature of acceptable speech in America, modern justices face a more balanced mix of cases than justices from a half century ago – perhaps in part because speech that was completely acceptable 50 years ago is now subject to litigation today.

    So I think comparing justices from across eras may have limited utility. It may only be reasonable to compare Justices from similar eras – to compare liberal and conservative justices serving roughly contemporaneously; rather than trying to draw conclusions from a direct comparison of, for example, the behavior of Justice Black to Justice Scalia.