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

15 Pages Posted: 15 Jul 2012 Last revised: 26 Aug 2012

Lee Epstein

Washington University in Saint Louis - School of Law

Christopher M. Parker

University of Rhode Island

Jeffrey Segal

Stony Brook University

Multiple version iconThere are 2 versions of this paper

Date Written: August 16, 2012

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.

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

Suggested Citation

Epstein, Lee and Parker, Christopher M. and Segal, Jeffrey, Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment (August 16, 2012). APSA 2012 Annual Meeting Paper. Available at SSRN: https://ssrn.com/abstract=2107425

Lee Epstein

Washington University in Saint Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

HOME PAGE: http://epstein.wustl.edu

Christopher M. Parker

University of Rhode Island ( email )

RI
United States

Jeffrey Segal (Contact Author)

Stony Brook University ( email )

Department of Political Science
Stony Brook, NY 11794
United States

HOME PAGE: http://www.sunysb.edu/polsci/jsegal/

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