FC: Supreme Court justices on free speech, by E.Volokh, and a response

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From: Carey Lening (carey@tstonramp.com)
Date: Wed Nov 01 2000 - 12:15:21 PPET

Good things to remember as the new presidential election is upon us, and
 the possibility of 3 new justicies becomes a looming topic.



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


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


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


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