One would assume that the Supreme Court led by Chief Justice John Roberts would be an institution especially pro-free speech. However, according to an article
in the New York Times
, a recent study challenges that conclusion. By analyzing an array of data spanning nearly six decades (1953-2011), the study shows that the Court is hearing fewer and fewer First Amendment cases and, when it does hear them, is ruling in favor of free speech at an lower rate than any of the Courts led by three prior chief justices.
The timing of the study is opportune as the Court prepares to hear two major First Amendment cases. Today the court will hear arguments in FCC v. Fox Television Stations, a case which asks whether the First Amendment allows the government to regulate obscene language on national television. In February, the Court will hear United States v. Alvarez, and decide whether the government can make it a crime to lie about receiving military decorations. Neither case appears to be a certain victory for free speech advocates.
The recent study acknowledges that the Roberts Court has on occasion ruled in favor of free speech. These cases have tended to be media spectacles and received significant attention following the ruling. The attention given to the cases has skewed the perception of Roberts’ friendliness for free speech.
Monica Youn, an attorney with the Brennan Center for Justice at NYU Law said that, “These free speech slam-dunks, with their colorful facts, were among the Roberts court’s cases that have attracted the most press attention, but they are hardly indicative of a conservative majority with an expansive view of First Amendment freedoms.”
Others have come to Roberts’ defense. Floyd Abrams, an esteemed First Amendment attorney said he was not swayed by the recent findings. Abrams argued that statistics don’t tell much of a story, it’s the Court’s decision to protect unpopular and distasteful speech that really shows whether Roberts will protect the First Amendment and, according to Abrams, “no prior Supreme Court has been as protective as this.”
Abrams cites one of the most controversial decisions of Roberts’ tenure as proof. “Two words - Citizens United.” Abrams said that decision, granting corporations and unions the First Amendment right to spend freely to support candidates in elections, is proof of Roberts’ defense of the free speech even in the face of withering criticism.
In Roberts’ first six years on the bench the Court issued 29 decisions regarding free speech, of those cases it ruled in favor of free speech 10 times, roughly 35% of the time. The three prior Courts heard some 506 cases and ruled for free speech a total of 54% of the time. Such a difference has raised many an eyebrow.
Some have been quick to identify the cause of the difference. The Court led by Chief Justice Earl Warren, 1953-1969, was famously liberal and, by itself ruled in favor of free speech 69% of the time. Chief Justice Burger, 1969-1986, only ruled in favor of free speech 46% of the time and Chief Justice Rehnquist, 1986-2005, sided with free speech 49% of the time. Though Roberts’ 35% still clocks in as the lowest, the difference between his Court and that of Burger and Rehnquist is not statistically significant.