THE U.S. Supreme Court's ruling last week that a radio host could not be sued for reporting news that was obtained unlawfully by someone else is the latest reminder that in matters of free speech the actions of the usually conservative Rehnquist court cannot be easily predicted.
When the current conservative majority was cemented in 1992 with the appointment of Justice Clarence Thomas, free-speech advocates worried openly about the future of expressive liberty. After several decades in which liberal justices such as Thurgood Marshall and William J. Brennan Jr. had vigorously defended free-speech rights, they feared that the new court would be mostly deaf to First Amendment claims.
Their concerns were well-founded. During the social turbulence of the 1960s and 1970s, many conservatives had argued for a restrictive reading of the free-speech clause. Robert Bork, the leading light of right-wing legal scholars, had gone so far as to claim that the First Amendment protected only political speech, not artistic or scientific expression. And though Bork's nomination to the court in 1987 was defeated, the judge who took his place - Anthony M. Kennedy - was a solid conservative in his own right.
But the story that has unfolded over the past decade is more complex than some had expected. Although the court has cut back on some First Amendment liberties - most notably, sexually oriented expression - it has been surprisingly sympathetic to free-speech claims.
Among its most significant free-speech rulings, the court has struck down a federal law making it a crime to post indecent material on the Internet that could be accessed by children. The court also has struck down several regulations of campaign activity, including a federal law limiting how much political parties can spend on their candidates and an Ohio statute banning anonymous campaign literature.
In other cases, the court has invalidated hate-crime statutes, restrictions on commercial advertising, and local ordinances barring property owners from posting signs on their land.
A recent study by Eugene Volokh, a UCLA law professor, puts this story into numbers. Of the 33 cases involving free-speech challenges from 1994 to last year, the court sided with the free-speech plaintiff, at least partially, in 20. And in the two free-speech decisions it has issued this year, the court has ruled in favor of the plaintiff.
More striking than these numbers is the breakdown of justices who have been most protective of free speech. Contrary to conventional expectations, conservative justices, not liberals, have voted most often to strike down government restrictions on speech.
Volokh's study shows that Kennedy has taken, by far, the most protective stance toward free speech. He voted for the plaintiff in all but 10 of the 33 cases over the six-year period. Tying for second place are Justices David H. Souter, a Republican appointee who has drifted to the left since taking his seat in 1990, and Thomas, one of the court's most conservative members.
Two of the court's reliable liberals, Justices John Paul Stevens and Ruth Bader Ginsburg, come next on the list. But Justice Stephen G. Breyer, who was appointed by President Bill Clinton in 1994 and is a key member of the liberal bloc, is last. He voted in favor of free-speech plaintiffs in only 14 of the 33 cases, though he has sided with the plaintiffs in the two cases decided this year.
What explains this seemingly curious lineup? In part, it reflects a more general principle that the political leanings of the justices are not always reliable indicators of their votes in particular cases. Last year, Scalia and Thomas voted to overturn the sentence of a convicted criminal because it was based on allegations that the jury had not been required to consider, while Breyer sided with the prosecution.
But the upsetting of expectations in free-speech cases is also the result of broader shifts in the theoretical perspective that conservatives and liberals bring to the First Amendment.
During the 1960s and 1970s, Democratic liberals were the heirs of a libertarian tradition that distrusted government action (outside of economic regulation) and jealously guarded individual liberties, particularly free speech.
"Debate on public issues should be uninhibited, robust, and wide-open," Brennan wrote in his 1964 opinion in New York Times v. Sullivan, a landmark case that gave news organizations broad protection from libel suits filed by public officials.
But critics from within the liberal camp soon challenged Brennan's view, arguing that disparities in power and wealth ensured that some people had greater opportunities for speech than others. Feminists argued that pornography intimidated women into silence, while race theorists maintained that bigoted hate speech perpetuated discrimination against blacks and other minorities.
The result was that many liberals began to support regulations that, while restricting speech up front, were designed to promote a broader range of voices in the long run.
On the other side, many conservatives who had trusted the government to regulate subversive speech in the 1950s and 1960s took up the libertarian cause. They viewed government efforts to equalize speech among different groups -through anti-discrimination and hate-speech laws - as a dangerous interference with the marketplace of ideas.
One case in which these competing views played out was last year's ruling on the right of the Boy Scouts to expel gay members.
Writing for himself and the court's four other conservatives, Rehnquist concluded that a New Jersey anti-discrimination law could not require the Scouts to admit gay members because it would interfere with the group's First Amendment right to express its opposition to homosexuality.
The four dissenters - Stevens, Souter, Ginsburg and Breyer - agreed that the Boy Scouts could not be forced to send a message about homosexuality that conflicted with its core mission. But they rejected the Scouts' claim that homosexuality was fundamentally incompatible with that mission.
Campaign finance reform is another area in which liberals and conservatives have often ended up on reverse sides of the free speech spectrum. Liberals tend to view restrictions on campaign spending as a tool to stop corruption and to prevent the wealthy from dominating electoral politics, while conservatives regard them as blatant attempts to limit political speech.
That explains why Stevens and Ginsburg have consistently voted to uphold campaign finance regulations - such as limits on campaign contributions and on campaign spending by political parties - whereas Scalia, Kennedy and Thomas usually oppose such laws.
Other factors have contributed to the court's idiosyncratic voting pattern on free-speech cases. For one thing, Scalia and Thomas often view restrictions on speech through the lens of property rights, which accounts for their opposition to commercial advertising restrictions.
"For Scalia and Thomas, if you own property, you have speech rights in it," says Yale law professor Jack M. Balkin. "If you don't have property, don't bellyache about free speech."
Kennedy, by contrast, is often animated by what Balkin describes as a "romantic vision of individualism," in which free speech enables groups and individuals to define their identity. And Breyer appears driven by a confidence in the government's ability to solve problems that is reminiscent of early 20th-century progressivism.
The court's decision last week highlighted another variable in its free-speech doctrine - the role of privacy rights.
The case involved a radio talk show host who was sued after broadcasting a cellular telephone conversation that had been illegally recorded by someone else. Although federal wiretap laws made his actions a crime, he claimed protection under the First Amendment.
The court ruled 6-3 in his favor, rejecting the argument that his free-speech rights were trumped by the privacy interests of those who were illegally taped.
But two of the justices in the majority - Breyer and O'Connor - sharply qualified the court's ruling. And the dissenters - Rehnquist, Scalia and Thomas - argued that the majority's approach would minimize free speech by discouraging people from sharing information over telephones and computers.
This debate is likely to flare up again soon in cases involving the right of companies to gather and sell personal information about people. And though it is tempting to speculate about how the conservatives and liberals will vote, the complexities of the issue make it nearly impossible to predict.
"You can see in the distance this upcoming battle over free speech rights and privacy, which is going to be a real donnybrook," says Balkin. "And no one knows how it's going to come out."
Thomas Healy covers the U.S. Su preme Court for The Sun.