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Friday, August 31, 2012

More free speech and ideology

Apropos of this brief conversation and stuff I've written here before, comes this paper by political scientists Lee Epstine, Christopher Parker, and Jeffrey Segal that finds a correlation between the nature of the speaker and speech at issue and the likelihood of the Court and individual justices voting in favor or against the First Amendment claim. This result also is consistent with theories of in-group bias/favoritism--that people give preferential treatment to members of their own group.

I still believe the liberal/conservative labels are too crude generally and especially as applied to expression. Plus, is it really in-group bias that is going on in First Amendment cases? While I agree with the outcomes in the flag-burning cases and in Snyder v. Phelps, I'm not sure I am "part" of either group. We could tweak it as political agreement or sympathy, but I certainly would not say I agree with the ideas expressed by the speakers in either of those cases. And in something like campaign finance, we don't even know what the speech at issue will be; there is an assumption that the corporate speakers will make conservative speech, but do we know that is true in the abstract?

Anyway, the study is useful in showing that the simple notion of a complete alignment or complete reversal of left/right support for speech both are wrong. Beyond that, more grist for the discussion.

Posted by Howard Wasserman on August 31, 2012 at 11:53 AM in Article Spotlight, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink

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Interesting study, but I find the justification of the coding odd. Is there any justice in the last 50 years who could be fairly said to like racist speech? To like anti-American organizations? The authors might have been better off instead of implying the latter to be conservative and the former to be liberal, to instead suggest that the coding is justified by the idea that each side especially abhors certain kind of speech--liberals would therefore be expected to have less tolerance for racist speech, conservatives for anti-American speech,so we could code racist speech as "especially abhorrent to liberals" and anti-American speech "especially abhorrent to conservatives" without implying that racist speech is "conservative" and anti-American speech "liberal."

Posted by: Anon250 | Aug 31, 2012 11:33:01 PM

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