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

16 Pages Posted: 6 Aug 2013

See all articles by Lee Epstein

Lee Epstein

Washington University in St. Louis - School of Law

Christopher Parker

University of Rhode Island

Jeffrey Segal

Stony Brook University

Multiple version iconThere are 2 versions of this paper

Date Written: 2013

Abstract

While scholars debate whether liberals or conservatives on the Supreme Court are more supportive of First Amendment rights (compare Pritchett [1948] and Epstein, Landes, and Posner [2013] to Volokh [2011] and Sullivan [1992]), we argue that the Court’s First Amendment jurisprudence may fruitfully be viewed through the lens of In-Group Bias, a fundamental norm in social psychology that holds that humans tend to evaluate our own group and its members more favorably than outsiders.

From this perspective we argue that liberal (conservative) justices will evaluate speech claims made by liberal (conservative) parties more favorably than they will speech claims made by conservative (liberal) parties, after controlling for other salient factors. After correcting the coding in Spaeth’s Supreme Court database for ideological direction in cases in which the First Amendment issue is not the main issue, our multilevel hierarchical model finds a substantial in-group bias in the votes of U.S. Supreme Court justices from the 1953-2010 Terms of the Court. The findings hold up through a series of robustness checks.

Suggested Citation

Epstein, Lee and Parker, Christopher and Segal, Jeffrey, Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment (2013). APSA 2013 Annual Meeting Paper; American Political Science Association 2013 Annual Meeting. Available at SSRN: https://ssrn.com/abstract=2300572

Lee Epstein (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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

Christopher Parker

University of Rhode Island ( email )

RI
United States

Jeffrey Segal

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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