U.S. Supreme Court

Study Targets Conventional Wisdom that Roberts Court Is Pro Free Speech


The modern U.S. Supreme Court isn’t as protective of free speech as many commentators have suggested, according to a new study.

Some scholars have suggested the Roberts court is the most supportive of First Amendment rights in history, but the raw numbers tell a different story, the study says. The New York Times reports on the results.

From 2005 to 2011, the Roberts court issued 29 free speech decisions in argued cases, and ruled in favor of free speech in 34.5 percent of the cases. From 1953 to 2004, on the other hand, the court ruled in favor of free speech in nearly 54 percent of the cases.

The numbers were compiled by Monica Youn of New York University School of Law. Out of the 10 free speech rulings by the Roberts court, six struck down campaign finance laws. Three others—concerning animal cruelty, funeral picketing and violent video games—were free speech “slam dunks” in which the court upheld a lower court decision by a large margin, she writes at ACS Blog.

According to Youn, the numbers support claims by University of California at Irvine law dean Erwin Chemerinsky, who argues the Roberts court is more animated by a hostility to campaign finance laws than a commitment to expanding speech.

The Times talked to First Amendment experts for reaction. David Hudson Jr. of the First Amendment Center at Vanderbilt University said the Supreme Court’s record was mixed. It “has been terrible in public employee free speech claims,” he told the Times, but it “really landed the plane” in the funeral protest, animal cruelty and video games cases.

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