When the First Amendment was ratified in the U.S. Constitution over 200 years ago, it aimed to prevent government overreach by safeguarding free speech and other individual liberties. Since then, it has been warped into the right to say whatever you want without consequences. This has coincided with a shift from using the First Amendment to protect minority viewpoints to a more conservative perspective that believes political correctness has gone too far. Since the rise of the MAGA movement in 2016, supporters have become vocal advocates of free speech, citing concerns about media bias and online censorship. But political rhetoric on both sides of the aisle has intensified. Social media platforms function as echo chambers that exacerbate political divides. Social activism has become more brazen, with protests conducted without restraint as the new baseline. This has caused the line between what is right and what is wrong in free speech debates to become blurred, as seen in controversies surrounding election integrity and disinformation campaigns.
Despite widespread support for free speech in America (see, e.g., a 2024 poll from the Cato Institute), it is not surprising that the role of these arguments in the courtroom has been mixed. But free speech arguments are becoming more ubiquitous across a variety of case types, including defamation, employment, copyright, and criminal cases as well as in the regulation of social media platforms. We suspect this divergence in general attitudes towards free speech and support for free speech arguments in legal cases stems from a tendency to only care about the First Amendment when it is self-relevant. In other words, people are probably more likely to support free speech arguments when it is their speech, rather than someone else’s, that is at issue, or when their background and experiences make them more likely to identify with those who have felt deprived of their right to free speech—as in the case of disenfranchised groups or MAGA supporters.
To examine this, the DOAR Research Center conducted an online survey of approximately 1,500 residents in the Southern and Eastern Districts of New York. We selected these venues because the New York courts (SDNY especially) have tried many of these high-profile cases where free speech arguments are being advanced. We assessed people’s opinions and experiences related to free speech and then presented them with three hypothetical legal cases—copyright infringement, social media regulation, and defamation—and assessed their support for the party advocating free speech. We varied whether respondents were told to imagine that one of the parties in the case was a loved one versus just some other person to test whether people are more likely to support the free speech position when it is being advanced by someone whose speech matters to them.
Results of the Survey
Copyright Infringement Scenario
In the first scenario, we told respondents to imagine that someone (a stranger or a loved one) creates a digital (i.e., two-dimensional) representation of a Barbie doll and calls it art. Mattel, the owner of Barbie, discovers this and sues the artist for copyright infringement. Respondents indicated whether they were more likely to agree with the plaintiff (Mattel) for protecting its copyrighted product, or with the defendant (the artist) for claiming artistic expression protected under the First Amendment.
Overall, more respondents (60%) sided with the plaintiff (the company) and this was true regardless of whether the artist was described as a stranger or a loved one. However, in support of our hypothesis, those asked to imagine the artist was a loved one rather than just some other person were statistically significantly more likely to side with their position (43% and 36%, respectively; p < .01).
Individuals who were more likely to agree with the defendant arguing free speech had characteristics associated with a tendency to be suspicious of large corporations (e.g., because they have never worked at one) and to not trust institutions to advocate for them or their needs. Alternatively, those more likely to agree with the plaintiff alleging copyright infringement had characteristics suggesting they would be more likely to identify with Mattel or the executives of a large corporation and have a desire to defend large corporations (e.g., individuals who have mostly worked at large corporations).
Online Posting Scenario
In the next scenario, we told respondents to imagine a stranger or a loved one had their X/Twitter account suspended for political comments he or she made on the platform. We then asked whether they were more likely to agree with X/Twitter’s decision because the user’s statements violated company policies against content that could be perceived as threatening or inciting violence, or if they were more likely to say the suspension was unjustified under the First Amendment.
Overall, more respondents (59%) agreed with X/Twitter for suspending the user’s account. As in the previous scenario, this was true regardless of whether the user was a stranger or a loved one. Again, and in support of our hypothesis, those who were told the user was a loved (vs. a stranger) were more likely to agree that X/Twitter had no right to suspend the user’s account because of the First Amendment (45% and 38%, respectively; p < .01).
Those who were more likely to go against X/Twitter and advocate for free speech had characteristics associated with MAGA supporters (e.g., watches only right-wing news media, has no trust in the federal government or news media, and believes preserving free speech is more important than preventing hate speech) or come from a marginalized group (e.g., younger Hispanic/Latinx respondents or not college educated). On the other side, those more likely to agree with X/Twitter’s decision to suspend the user’s account had the opposite profile. This tended to be a more privileged group that prioritizes preventing hate speech over preserving free speech (e.g., college educated, has never felt deprived of their right to free speech and never reported being penalized for voicing their opinion).
Defamation Scenario
Finally, we presented respondents with a scenario where a company fires an employee (a stranger or a loved one) amid allegations of sexual harassment. The company issues a statement claiming the employee “grossly violated” its standards, leading the employee to sue for defamation. First, we asked respondents with which side they would be more likely to agree. Based on this information, respondents slightly favored (53%) the plaintiff (the employee) over the defendant. Notably, results changed dramatically based on whether respondents imagined the employee was a stranger or a loved one: among those who imagined the employee was a stranger, most (55%) sided with the defendant-company, whereas among those who imagined the employee was a loved one, most sided with the plaintiff-employee (61%); p’s < .001.
Those who were more likely to side with the plaintiff were more likely to have characteristics suggesting some identification with the employee in this case—namely, people who are more likely to be concerned about something similar happening to them in the workplace (e.g., male, Republican or Conservative, feels they are penalized for voicing their opinion all the time, has no trust in the courts). Individuals who were more likely to side with the defendant-company were on the opposite end of the political spectrum (i.e., Liberal) and tended to come from jobs associated with trust in institutions (i.e., law enforcement or government workers).
After respondents answered this first question, we told them that the sexual harassment allegations turned out to be false and asked if they thought the company was entitled to make those statements because of First Amendment protection. Most respondents (58%) said no, the company was not entitled to make those statements.
Notably, when framed within the context of free speech, those who reported having been penalized for voicing their opinion or have felt deprived of their right to free speech were more likely to say the company had the right to make those statements. This framework completed flipped the script for this group. Those who did not believe the company was entitled to First Amendment protection had the opposite profile. These were people who reported never having been penalized for voicing their opinion and have never felt deprived of their right to free speech.
Conclusion
Our results suggest that individuals who are more likely to support free speech arguments in legal cases have felt or feel deprived of their right to free speech, report having been penalized for voicing their opinion and do not trust institutions to protect them. These are individuals who come from disadvantaged groups or have characteristics typically associated with MAGA supporters.
We also see the powerful effect of humanizing parties in a case. By making the party advocating for free speech someone you can imagine caring for, people on both sides of the aisle were more likely to side with their position. Yet, respondents were, on average, less receptive to free speech arguments. Despite widespread support for the First Amendment (as seen in our survey and in recent polls), in each of our hypothetical cases, most respondents went against the party advocating for free speech. This aligns with the general sense that the courts, and jurors, are wary of these arguments.
In cases involving free speech arguments, however, one side is going to be concerned with making the client relatable, while the other side is going to be more concerned with identifying jurors who are going to relate to their client so they can remove them. Our findings suggest important considerations for voir dire and trial strategy.
Reprinted with permission from the November 2024 edition of the “New York Law Journal”© 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.
