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July 05, 2002

Do Liberals Like Free Speech?

Prof. Volokh has updated an analysis of all free speech decisions made by the current line up of Supreme Court Justices, and he has found that the liberal Justices are less friendly to free speech than the conservative Justices. I noted this issue about the judicial speech case last week.
...Now, I think Volokh's survey is very useful, but not because it's a simple way to expose hypocrisy of liberals on their virtue as free speech advocates. It may serve that function for some folks, but what the volume of cases his survey shows is the sprawling areas being colonized under "free speech."

Laws involved in everything from cable TV regulation to advertising to union dues have come under 1st Amendment jurisdiction-- the most radical development being the equation of money with speech, thereby making the regulation of money in many cases the same as a free speech violation. In some cases, that makes sense-- I actually generally think the campaign finance decisions by conservatives have the issues right -- but since the Supreme Court has changed the meaning of "free speech" over the years, it's hardly surprising that liberals who defended one version of free speech in the past might not rate as highly under a Rehnquist Court mostly defending the commercial dealings of powerful corprorate interests.
...In the early part of this century, the major constitutional cases defending "liberty" were about striking down Congressional child labor laws and other state regulation. Justices who deferred to government regulation, like Oliver Wendell Holmes Jr., were seen as standing up for individual rights against corporate interests who were using dominance of the courts to break the free speech rights of unions and other groups protesting corporate power.
...The interesting Justice on Volokh's list is Stephen Breyer, who rated as the most anti-speech Justice. This may reflect a more general characteristic of Breyer as one of the judges least favoring judicial activism in most areas, social and economic. I noted his comments in the judicial penalties case where he wanted to defer to state penalty rules, since he thought judicial interference created rigidity in systems better left to democratic debate.
...What the survey also reflects is judicial activism; to the extent that the conservatives are protecting free speech more, they are also being judicial activists, something conservatives often express disdain for. So to the extent that conservatives want to claim free speech bragging rights, they will also have to reliquish their supposed judicial restraint claims.

Posted by Nathan at July 5, 2002 03:34 PM

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