Conservatives supplant liberals in free- speech arguments to court

WASHINGTON —

On the final day of the Supreme Court term this past week, Justice Elena Kagan sounded an alarm.

The court’s five conservative members, citing the First Amendment, had just dealt public unions a blow. The day before, the same majority had used the First Amendment to reject a California law requiring religiously oriented “crisis pregnancy centers” to provide women with abortion information.

The decisions were the latest victories for a conservative agenda increasingly built on the foundation of free speech. Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns.

A new analysis prepared for The New York Times found that the court under Chief Justice John Roberts has been more likely to embrace free-speech arguments concerning conservative speech than liberal, a sharp break from earlier eras.

In the great First Amendment cases in the middle of the 20th century, few conservatives spoke up for the protection of political dissenters.

In 1971, Robert Bork, a conservative law professor and later a federal judge and Supreme Court nominee, wrote that the First Amendment should be interpreted narrowly in an article that remains one of the most cited of all time.

“Constitutional protection should be accorded only to speech that is explicitly political,” he wrote.

But a ruling by the Supreme Court five years later began to change that thinking. The case, a challenge to a state law that banned advertising the prices of prescription drugs, was filed by Public Citizen, a consumer rights group founded by Ralph Nader. The group said the law hurt consumers, and helped persuade the court to protect advertising and other commercial speech.

Now, the Supreme Court has agreed to hear a larger share of First Amendment cases concerning conservative speech than earlier courts had. And it has ruled in favor of conservative speech at a higher rate than liberal speech.

The court led by Earl Warren from 1953-69 was almost exclusively concerned with cases concerning liberal speech. Of its 60 free-expression cases, only five challenged the suppression of conservative speech.

The proportion of challenges to restrictions on conservative speech has risen to 22 percent in the court led by Warren Burger from 1969-86; to 42 percent in the court led by William Rehnquist (19862005); and to 65 percent in the Roberts court.

The result, the study found, has been “a fundamental transformation of the court’s free-expression agenda.”

Liberals and progressives are “sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right,” said Floyd Abrams, a First Amendment lawyer.