The NYT has a nuanced article that discusses a new study released by the Brennan Center for Justice at NYU. Basically, contra conventional wisdom, the Roberts Court finds in favor of free speech at a lower rate than the three previous Courts. The Roberts Court has ruled in favor of speech 34.5%, whereas the rate for the Rehnquist Court was 49%, Burger 46%, and shockingly the Warren Court was 69%. While the NYT had the study reviewed by a couple political scientists who work in the field (Epstein and Segal) who determined that the difference between Roberts and the three previous courts in aggregate was statistically significant, yet the differences between Roberts and the two previous courts is not, I don’t find statistical significance a particularly useful tool considering the data involved.
What’s of greater interest is percentage of “free speech” cases that were actually about campaign finance (which I initially wondered about when reading the article). Here’s the money shot:
A majority of the Roberts court’s pro-free-speech decisions — 6 of 10 — involved campaign finance laws.
“What really animates” the Roberts court, Erwin Chemerinsky wrote recently in The Arizona Law Review, “is a hostility to campaign finance laws much more than a commitment to expanding speech.”
No shit. More Chemerinsky:
The court, he wrote, has a “dismal record of protecting free speech in cases involving challenges to the institutional authority of the government when it is regulating the speech of its employees, its students and its prisoners, and when it is claiming national security justifications.”
For the geeks among us, the article dips its toe into the pool of epistemology:
David L. Hudson Jr., a scholar at the First Amendment Center at Vanderbilt University, said the studies lacked nuance by, for instance, treating every decision as equally important. His criticism illuminated a gap between the two disciplines used to assess the Supreme Court: political science codes and counts, while law weighs and analyzes.
Which reminds me, I’ll have a couple stacks of essays on epistemological issues to grade when I return to England early next week. Splendid.