There was a time when the judges who championed freedom of expression were liberal — e.g., Louis Brandeis, Hugo Black, William O. Douglas, and William J. Brennan Jr. But no longer. With increasing frequency, that cause is being embraced more by conservative jurists than by liberal ones. Case in point: Justice Anthony Kennedy is the Court’s most speech-protective member (a point first made by Eugene Volokh). Justice Stephen Breyer, by comparison, has the least free-speech protective voting record on the current Court. And based on what we know of his judicial opinions, Judge Samuel Alito Jr. is more like Kennedy than Breyer.
They are the new defenders of the First Amendment. They are bright and often libertarian (though there are exceptions). Not infrequently, they are inclined to safeguard full and robust expression. At the Supreme Court level, they are Justices Kennedy and Clarence Thomas — and Justice Antonin Scalia does have his moments, too. At the federal circuit level they include Judges Alito of the 3rd U.S. Circuit Court of Appeals, J. Harvie Wilkinson III of the 4th Circuit, Richard Posner of the 7th Circuit, Alex Kozinski of the 9th Circuit, and Janice Brown of the D.C. Circuit. While their records are not uniform, they nonetheless reveal a willingness to protect freedom of speech and press in ways more akin to the old absolutism of Justice Douglas than to the new trepidation of Justice Breyer.
The figures tell much of the story. Consider, for example, the free-speech voting record of Justices Kennedy and Breyer during the last decade of the Rehnquist Court (1994-2004):
Of course, fidelity to free speech is not categorically a conservative prerogative — liberal Justices David Souter and John Paul Stevens have sided with Kennedy more often than with Breyer in affirming First Amendment claims. Even so, when one considers the current Court’s First Amendment docket, the free-speech momentum clearly seems to be with the conservative wing of the bench — this is, as Geoffrey Stone has observed, in sharp contrast to the old conservatism of Justices like William Rehnquist.
Commercial speech is one of the most rapidly developing areas of modern free-speech law. Typically, the issue in such cases is the extent to which advertisers can make truthful claims about their products (everything from attorney advertising to alcohol advertising) without being subject to paternalistic government regulation. In that respect, it is noteworthy that Justices Scalia and Thomas — the “conservatives” — have upheld commercial-speech claims more than 75% of the time. Their “liberal” counterparts, Justices Breyer and Ruth Bader Ginsburg, are nowhere nearly as sympathetic to commercial speech; they have affirmed these claims only 33% and 44% of the time, respectively.
In this area, as in others, Judge Alito’s view of the First Amendment is far more in line with that of his “conservative” speech-protective brethren. Following in the footsteps of Justice Thomas (a staunch defender of commercial speech) and Judge Kozinski (one of the intellectual godfathers of protection for commercial speech), Judge Alito has shown a striking sensitivity to the idea that commercial speech is integrally related to freedom in a highly commercial culture.
The case was The Pitt News v. Pappert (2004). There, a Pennsylvania law banned paid advertisements for alcohol in college newspapers. A unanimous three-judge panel of the 3rd Circuit, with Alito writing the opinion, held that the 1996 law, which was intended to combat under-age drinking, placed an impermissible financial burden on student-run publications and impermissibly interfered with their right to free speech while doing little to achieve the government’s goal. In Alito’s mind, the Pennsylvania law was unconstitutional for two basic reasons: “First, the law represents an impermissible restriction on commercial speech. Second, the law is presumptively unconstitutional because it targets a narrow segment of the media.”
Another Alito opinion, Saxe v. State College Area School District (2001), likewise reveals his libertarian free-speech side. In Saxe, Alito wrote the opinion in which the 3rd Circuit struck down as contrary to the First Amendment a public school anti-harassment policy. The stated purpose of the policy was to provide “all students with a safe, secure, and nurturing school environment.” It further added that “disrespect among members of the school community is unacceptable behavior which threatens to disrupt the school environment and well being of the individual.”
Writing for a unanimous panel, Alito declared: “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause. Moreover, the ... Policy prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law.” Furthermore, he added: “There is of course no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause. But there is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs.”
Such opinions are characteristic of the new defenders of the First Amendment, though there are exceptions both for the justices and Judge Alito, too. And while their record often focuses on so-called “conservative speech” — e.g., defending commercial speech and opposing campaign-finance restrictions — it is by no means limited to such expression. Take, for example, Kennedy’s opinion in United States v. Playboy Entertainment Group (2002). There a federal law required cable operators to “fully scramble” indecent and sexually explicit programming on adult stations. The cable operators claimed that the law violated the First Amendment. By a 5-4 vote, with Kennedy writing for the majority (joined by Thomas), the Court invalidated the law. Breyer dissented.
Then there is Scalia’s vote in Texas v. Johnson (1989). In that case the Court, again 5-4, struck down a Texas flag-desecration law. Scalia provided the crucial fifth vote while the Court’s leading liberal, Stevens, dissented.
Whether the new defenders of the First Amendment will fully embrace the libertarian ideal in other controversial areas, such as free speech in wartime, remains to be seen. Still, their new presence on the constitutional landscape reveals something basic: Freedom knows no ideological boundaries.