It does turn out, though, that if you look not at the voters or the justices but at the backers—the intellectual, academic, and institutional backers of some restrictions—there is something of a liberal-conservative divide. For example, campus speech codes seem to be backed by a combination of mostly liberal university administrators and professors, based partly on a nonpolitical desire to suppress stuff that causes a mess and causes a fuss. This isn’t to say that most liberals support campus speech codes, but most supporters of campus speech codes are liberals.
There are also attempts to restrict speech from the right, including speech with sexual themes. Generally speaking, it’s more conservatives than liberals who favor giving government the broad right to fire government employees for their speech, including whistleblowing speech. So it depends on the particular controversy.
Let me give an example of something that people haven’t much noticed. In child custody cases, when courts decide which parent gets custody, the standard is the best interests of the child. And there are quite a few cases in which the judge says, more or less, “This parent is more religious than the other parent, and it’s in the best interests of the child to be raised in a more religious environment. Therefore we’re going to give custody to the more religious parent.” Or sometimes, “We’re going to bar this parent from saying something that we think is against the child’s best interest”—bar a parent from saying racist things, or bar a parent from saying pro–gay rights things, or bar a parent from saying anti-gay things, especially when the other parent turns out to be a lesbian.
You might say, “Well, it’s conservatives who are trying to suppress atheist speech, and it’s liberals who are trying to suppress, say, anti-gay speech.” But what really seems to be going on is that judges say: “All we care about is this legal standard, best interests of the child. Free speech, religious freedom, separation of church and state—we’re not going to pay any attention to any of that. We’re just fixated on our daily job, which is to apply this standard.” And I think that’s true with regard to a lot of speech restrictions. It’s often government officials, whether judges or prosecutors or administrative officials, who just don’t pay any attention to free speech. It’s not about politics to them. It’s about getting the things they want done notwithstanding any constitutional constraints.
