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FC: Supreme Court justices on free speech, by E.Volokh, and a response
From: Declan McCullagh <declan () well com>
Date: Wed, 1 Nov 2000 10:35:23 -0500
******* Date: Tue, 31 Oct 2000 09:34:02 -0500 To: fight-censorship () vorlon mit edu From: "James M. Ray" <jray () e-gold com> Subject: Where the Justices Are Unpredictable The New York Times October 30, 2000 Where the Justices Are Unpredictable By EUGENE VOLOKH LOS ANGELES -- The composition of the Supreme Court is a hot issue in the presidential campaign, with both parties warning of evil days if the other side gets to name the next several justices. But it's not so easy to predict the positions of Democratic or Republican court appointees - and this is especially true of free-speech opinions. Stephen G. Breyer, for instance, a Clinton appointee, is the least likely of all nine justices to vote for a free- speech claim. The justice who takes the broadest view of free-speech rights is Anthony M. Kennedy, a Reagan appointee, followed by Clarence Thomas in a tie with fellow Bush appointee David H. Souter. Not what one might expect from reading the conventional political labels. To compile this free-speech scorecard, I studied 33 cases decided in the last six years - involving pornography, picketing, the media and commercial speech, for example. (I chose six years because that's how long the court's membership has been unchanged.) I assigned a point for each case where a justice voted for the free-speech claimant, adjusting up by a third of a point for a separate opinion taking a more speech-protective stance than the justice's colleagues did and adjusting down by that amount for one expressing a more government-friendly view. Rated this way, Justice Kennedy voted for free speech claimants an adjusted 74 percent of the time - making him hardly an absolutist, but still a voice for broad speech protection. Justices Thomas and Souter were both at 63 percent, and Ruth Bader Ginsburg (a Clinton appointee) and John Paul Stevens (Ford) were virtually tied, at 58 percent and 57 percent. Antonin Scalia (Reagan) was next, at 52 percent, followed by Chief Justice William A. Rehnquist (Nixon) and Sandra Day O'Connor (Reagan) at 46 percent and 45 percent. Justice Breyer voted for the free-speech claimant only 40 percent of the time. To be sure, generalizing from numbers about where a justice stands on "free speech" can be misleading. Justices can have plausible (and sometimes politically predictable) reasons for voting against a free-speech claim. Justice Ginsburg, for instance, generally strongly supports free-speech claims, but thinks that private individuals' religious speech and costly election-campaign speech should be more restricted. Justice Scalia believes in strong protection for religious expression and campaign-related speech, but thinks that sexually explicit speech deserves less protection. Still, a vote for or against a free- speech claim reaches beyond these distinctions. After all, Supreme Court decisions that curb one kind of speech tend to lead to restrictions on other kinds. The so-called slippery slope is a real concern in a legal system founded on precedents and analogies. So voters who support broad free-speech rights should feel more comfortable with the views of a Justice Kennedy, Thomas or Souter (all Republican picks) than with those of Justice Breyer - even if they disagree with the first three on specific cases. It's just not sound to assume that the left generally sides with speakers and the right with government officials who want to curb them. Eugene Volokh is a law professor at the University of California at Los Angeles. ******** Date: Tue, 31 Oct 2000 14:58:38 -0500 From: Marc Rotenberg <rotenberg () epic org> Subject: Re: Where the Justices Are Unpredictable TO THE NEW YORK TIMES Professor Eugene Volokh makes a clever argument about the future of the Court ("When Justices are Unpredictable," October 31, 2000".) But in two cases of particular interest to the Internet community (and well known to Volokh), the political split is hardly ambiguous. In McIntyre v. Ohio (1995), an important privacy case, Justice Stevens wrote for the Court that the anti-anonymity provisions of a local ordinance violated the First Amendment's free speech clause. Justice Thomas concurred in the outcome but followed a strict constructionist argument. Justices Scalia and Rehnquist dissented. In Reno v. ACLU (1997), the case challenging Congress's efforts to limit controversial speech on the Internet, Justice Stevens wrote for a seven-member majority that the Communication Decency violated the First Amendment. Justice Rehnquist and Justice O'Connor concurred in part but also dissented in part. In these two cases, the justices have already given a clear indication of the close relationship between judicial philosophy and judicial outcome that will shape the rights of privacy and free expression in the Internet era. Marc Rotenberg WASHINGTON, DC ------------------------------------------------------------------------- POLITECH -- the moderated mailing list of politics and technology You may redistribute this message freely if it remains intact. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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