The Volokh Conspiracy

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Volokh Conspiracy

Free speech vs. voting rights and abortion rights


Dahlia Lithwick has a piece in Slate complaining that the Supreme Court is more protective of some rights than others. It begins:

The Supreme Court of the John Roberts era gets one thing very right: It's one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution-seeker whose rights and privileges will not be treated by the court with the utmost reverence and solicitude.

This is important and vital, and one doesn't want to slag the court for the boundless attention and care it lavishes upon the most obnoxious speakers in America. After all, the First Amendment is kind of the constitutional gateway drug, the portal to the rest of the Bill of Rights. And without securing meaningful protection for the rights to speak, assemble, worship, and publish, so many of our other rights might be illusory. Great. Stipulated.

That makes it extra weird whenever the assorted (lets call them largely "conservative") justices of the Roberts court, and judges on lower courts across the land, turn their attention to the protection of other rights-equally crucial but perhaps less sexy-like, say, the right to vote or to obtain an abortion. …

Lithwick's basic point is that the right to vote and to obtain an abortion ought to get, but do not get, the same strong protection from the Court as free speech does. She suggests that this is because the Court doesn't "see the poor and the powerless," "the hundreds and thousands of voiceless voters and abortion-seekers" or belittles their claims "because they are poor or minorities or just women."

[This makes me somewhat puzzled by this criticism by Scott Greenfield (endorsed by Judge Kopf) which reads Lithwick as trying to "horse-trade" or "attack" the free speech cases. I'm not sure that's really a fair characterization of Lithwick's piece, which advocates leveling up, not leveling down.]

But I can't help but noticing one interesting and important difference between the right to free speech, and the rights to vote or to obtain an abortion. The right to free speech is enumerated in the text of the Constitution. The rights to vote and to obtain an abortion are not—at least not as explicitly.

It's true that the right to vote is mentioned in a series of constitutional amendments that protect the right from discrimination on the basis of race, sex, age, etc. But there's no textual provision that just protects the right in and of itself. And while the voter ID laws that Lithwick writes about have been challenged as discriminatory under the Voting Rights Act, the main constitutional claim against them is that they burden the unenumerated right to vote. Similarly, while there are arguments to derive abortion rights from various textual provisions, I think everybody acknowledges that they aren't as explicit as the right to freedom of speech.

That makes me wonder if it's possible that there's a different explanation for the pattern Lithwick alleges. Maybe it's not that the Court lacks sympathy for the poor or the vulnerable, or that the other rights are not "sexy." Maybe the Court thinks that rights that derive from the constitutional text are more powerful, or less subject to common-law doctrinal balancing, than rights that are derived from judicial precedent.

Now maybe this pattern wouldn't hold if we brought other rights into the picture too. And even if it's true that the Court treats the constitutional text with greater solicitude than non-textual rights, one could certainly mount arguments against that. Maybe the right to vote and the right to obtain an abortion should be placed on doctrinally equal footing with textually enumerated rights. But since that's the glaring difference between the three rights Lithwick compares, it seems like that's the argument she ought to confront.