Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment

Abstract:     
When it comes to freedom of expression, there is some tension in the literature on judging. On the one hand, political scientists have long equated liberal judges with a commitment to the First Amendment guarantees of speech, press, assembly, and association. On the other hand, a growing body of descriptive literature (mainly in the law reviews) suggests that these definitions are no longer apt. The punchline in these studies is that an ideological realignment of sorts has occurred, such that conservatives judges are now more likely to embrace free expression and liberals, regulation.

We seek to resolve this tension by examining the votes in all Supreme Court cases argued and decided between the 1946-2010 terms that touch on the First Amendment guarantees of speech, press, assembly, association, and petition. Our findings suggest that neither side has it exactly wrong or right. To be sure, liberal justices aren't uniformly attached to the First Amendment and conservative justices aren't uniformly committed to regulation, as the legal literature correctly notes. But ideology isn't absent from their decisions, nor has an ideological reversal occurred. In line with broader theoretical predictions following from literature on in-group bias in economics, psychology, and even early political science work, the justices' votes tend to reflect their preferences toward the expression (or expressor), and not an underlying taste for the First Amendment qua Amendment.

Number of Pages in PDF File: 15

Keywords: Supreme Court, First Amendment, ideology, in-group bias

working papers series