Trumping the First Amendment?

Published in 2006. In the Journal of Law & Policy 21: 81-121.

(Revised version of a paper presented at Washington University School of Law's conference on The Rehnquist Court and the First Amendment, November 18, 2005.)

Lee Epstein
Jeffrey A. Segal

Our primary goal in this article is to assess whether the relationship between the ideology of Supreme Court justices and their support for the First Amendment guarantees of speech, press, assembly, and association has declined, such that left-of-center justices no longer consistently support those guarantees and right-of-center justices no longer consistently support regulation of them. Deploying data drawn from the 1953-2004 terms of the Court, we show that in disputes in which only First Amendment claims are at issue, the more liberal a justice, the higher the likelihood that she or he will vote in favor of litigants alleging an abridgment of their rights. That relationship, however, fails to emerge in disputes in which other values, such as privacy and equality, are prominently at stake. In these cases, liberal justices are no more likely than their conservative counterparts to support the First Amendment; indeed, if anything, a reversal of sorts occurs, with conservatives more likely and liberals less likely to vote in favor of the speech, press, assembly, or association claim. Taken collectively, these results indicate that a commitment to First Amendment values is no longer a lodestar of liberalism. We consider the implications of these findings in light of long-held assumptions in (quantitative) political science work on the Court.

Click here for the article (.pdf).
Click here for the data (Stata .dta file).