Take Justice Antonin Scalia. He is known as a consistent and principled defender of free speech rights.
It hurt him, he has said, when he voted to strike down a law making flag burning a crime. “If it was up to me, if I were king,” he said, “I would take scruffy, bearded, sandal-wearing idiots who burn the flag, and I would put them in jail.” But the First Amendment stopped him.
That is a powerful example of constitutional principles overcoming personal preferences. But that is not the norm. In cases raising First Amendment claims, Justice Scalia voted to uphold the free speech rights of conservative speakers at more than triple the rate of liberal ones.
He is not alone. The votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.
Social science calls this kind of thing “in-group bias.” The impact of such bias on judicial behavior has not been explored in much detail, though earlier studies have found that female appeals court judges are more likely to vote for plaintiffs in sexual harassment and sex discrimination suits.
“Though the results are consistent with a long line of research in the social sciences, I still find them stunning — shocking, really,” said the professor who conducted the study.
The court has, he said, protected hateful speech at military funerals, allowed the sale of violent video games to minors and struck down campaign finance laws. But it ruled against a government whistle-blower, a student expressing a pro-drug message, a prisoner and a human rights activist.
Justice Scalia was in the majority every time.
Source: “In Justices’ Votes, Free Speech Often Means ‘Speech I Agree With,'” New York Times online, May 5, 2014, article by Adam Liptak.