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YLS Information Society Project Examines Public Opinion and Freedom of Speech

Political scientists have long speculated that opinions discussed by Americans around the water cooler eventually influence the opinions handed down by the U.S. Supreme Court.

Yale Law School's Information Society Project (ISP) recently analyzed over fifty years of existing research with an eye toward determining the extent to which public opinion both responds to and influences Supreme Court rulings on freedom of speech.

The conclusion? Public opinion holds sway over the Court over time, primarily through the judicial appointment process. Likewise, Supreme Court decisions can influence public opinion. The public's influence on the Court, though, "seems more substantial and well-supported than the Court's influence on public opinion," according to the study's resulting white paper, which was written by ISP Fellow Marvin Ammori and was sponsored by the John S. and James L. Knight Foundation.

As part of its study, the ISP examined how the public's definition of "speech" differs from the Court's definition. The findings suggest that while both the public and the Court are committed to the abstract notion of protecting freedom of speech, they define "speech" differently. While the Court takes a broader view of protected speech, the public tends to favor discussion over protest; politeness over offensiveness; and an individual's right to freedom of speech over corporate claims on the First Amendment.

The study also addresses the longstanding concern that public opinion could undermine First Amendment rights. There is "at least some basis for this fear," the ISP paper acknowledges: "Public opinion does influence the Court's decisions and, while the public is not anti-speech in general, for certain types of speech (such as offensive speech or media speech) and perhaps during certain times, the public may be less speech-protective than the Court. As a result, public opinion may help undermine—or buttress—existing speech protection for certain speech categories or during certain periods."

In response to that conclusion, the paper advocates new educational initiatives that will increase public understanding of and support for freedom of speech.

"We are now engaged in a really vital debate over civil liberties after 9/11, and it becomes ever more important for the public to show its support for our basic freedoms," said Jack Balkin, who is founder and director of the ISP, and Knight Professor of Constitutional Law and the First Amendment at Yale Law School. "It's a time of challenge but also a time of opportunity. Courts can't do everything by themselves, nor should we expect them to. If the public rises to the occasion and supports freedom of speech when it is threatened, the judiciary will be far more likely to protect this core freedom," Balkin added.

The Information Society Project white paper "Public Opinion and Freedom of Speech" is available as a pdf here and on the ISP website.