Justice Antonin Scalia is known for his fiery dissents, his clear writing style, and for his formidable questioning during oral arguments. During his nearly 30 years on the Court, he has made his mark in many areas of constitutional law. The First Amendment free-speech clause is no exception.
The following five quotes epitomize Justice Scalia’s defense of First Amendment free speech principles:
“The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content.”
A key aspect of First Amendment jurisprudence is the content-discrimination principle. Content-based laws are subject to the highest form of judicial review known as strict scrutiny. Justice Scalia aptly described this principle as “the first axiom” of First Amendment law in his dissenting opinion in Williams-Yulee v. The Florida Bar. The Supreme Court narrowly upheld a broad rule prohibiting solicitations by judicial candidates. Justice Scalia believed in this case that the law failed the content-discrimination principle, but in the majority opinion, the court said “Simply put, the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors”
“The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”
The First Amendment protects unpopular speakers from suppression by majoritarian forces. After all, popular speech doesn’t face government oppression. Justice Scalia expressed this idea in his opinion invaliding a sweeping hate speech ordinance in R.A.V. v. City of St. Paul (1992).
“We should celebrate rather than condemn the addition of this speech to the public debate.”
One of the more contested areas of First Amendment law is campaign finance regulation. The Supreme Court is deeply divided. Some justices believe that “money is speech” and that corporations have as much right to speak as individuals. Other justices believe that “money is property” and warn of the dangers of corporate influence in elections. Justice Scalia defended the free-speech rights of corporations in his concurring opinion in Citizens United v. Federal Election Commission (2010).
The majority opinion, written by Justice Anthony Kennedy, noted that “political speech is “indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation.”
“… the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of sexual conduct.”
The California legislature sought to regulate the sale and rental of violent video games to minors. It did so through a statute that sought to treat violent material as obscenity. However, Justice Scalia rejected the idea of violence as obscenity. Instead, he wrote in his majority opinion in Brown v. Entertainment Merchants Ass’n (2011) that the obscenity exception applies only to sexually explicit material, not violent material.
“Just as there is no use arguing about taste, there is no use litigating about it.”
Obscenity cases are difficult and troublesome to First Amendment advocates because there is an eye-of-the-beholder phenomenon to the issues What is patently offensive to one person may be pleasing to another individual. Justice Scalia often has not been terribly sensitive to free-speech issues in cases involving sexual expression. However, in Pope v. Illinois (1987) he recognized in his concurring opinion that determining whether expression is valuable or tasteless is beyond the purview of the courts.
David L. Hudson, Jr. is the Ombudsman for the Newseum Institute’s First Amendment Center. He also is the author or co-author of more than 40 books, including The First Amendment: Freedom of Speech (2012).