Study Questions Supreme Court’s Protection of the First Amendment

With the much ballyhooed wins for free speech in cases like Brown v. EMA and more, many commentators commended a John Roberts-led Supreme Court that upheld our right to free speech. A recent study questions whether the current Supreme Court is as supportive of free speech as we think it is.

The New York Times analyzed the findings of the study, including opinions from various sources about the Supreme Court’s record:

The studies acknowledge that the Roberts court has ruled for free speech rights in a handful of cases that have captured the public imagination, including ones protecting funeral protesters, the makers of violent video games and the distributors of materials showing the torture of animals.

“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,” Monica Youn, a lawyer with the Brennan Center for Justice at the New York University School of Law, wrote in a report titled “The Roberts Court’s Free Speech Double Standard.”

Floyd Abrams, the prominent First Amendment lawyer, said he was unimpressed by the new findings. “Statistics cannot tell the story of the willingness of a court to defend free expression,” he said. “Cases do. It is unpopular speech, distasteful speech, that most requires First Amendment protection, and on that score, no prior Supreme Court has been as protective as this.”

Ms. Youn’s study was posted on the blog of the American Constitution Society, a liberal legal group. At the request of The New York Times, two scholars — Lee Epstein, who teaches law and political science at the University of Southern California, and Jeffrey A. Segal, a political scientist at Stony Brook University — examined the data Ms. Youn relied on and confirmed the essence of her empirical conclusions.

The Free Expression Policy Project also analyzed the report, discussing the political implications of the decisions the Supreme Court made under Roberts’ leadership:

It is the political context that is crucial in understanding when the Court upholds First Amendment claims and when it rejects them. As law school dean Erwin Chemerinsky, quoted by Liptak, points out, the Roberts Court has a “dismal record of protecting free speech in cases involving challenges to the institutional authority of the government,” particularly when the speech in question is by public employees, students, prisoners, or advocates of politically controversial ideas.

You can read the entire New York Times article here. Youn’s original article questioning the Supreme Court’s record can be found here. Read the analysis from the Free Expression Project here.

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