Justice Scalia: The 45 words — and original meaning — of the First Amendment

U.S. Supreme Court Justice Antonin Scalia

U.S. Supreme Court Justice Antonin Scalia addresses the audience at the Supreme Court Fellows Program’s annual lecture in the Newseum’s Annenberg Theater on March 5, 2015. (Maria Bryk/Newseum)

Justice Antonin Scalia’s view of the First Amendment’s freedoms ranged from a defense of flag desecration as political speech to criticism of a court case many see as fundamental to a free press — and at least once, meant apologizing for how his words were applied.

Scalia, 79, who died Saturday, was a proud and most-recent Supreme Court advocate of “textual originalism” throughout his legal career and three-decade tenure as a justice.

Scalia put it succinctly a year ago, in a brief conversation before speaking at the Newseum about his latest book on the subject: Judges should look to what a law meant when it was adopted and not “to what society today thinks it ought to mean.”

Concurring in a 2010 decision involving privacy claims, Scalia wrote: “The court’s implication that where electronic privacy is concerned we should decide less than we otherwise (would) … is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

In considering disputes across the range of the First Amendment’s five freedoms — religion, speech, press, assembly and petition — Scalia held views that alternatively supported or disappointed those who consider themselves First Amendment advocates. In one instance in 2004, he apologized for how his stance on press coverage had been interpreted by the U.S. Marshals Service and blamed himself for a lack of clarity in his own words.

In letters dated April 9, to Denise Grones of The Associated Press and Antoinette Konz of the Hattiesburg American, Scalia — noting his long-standing policy of not permitting the taping of his public remarks — was intended to keep him and other judges from being “regarded as politicians seeking public favor.”

A U.S. marshal providing security for Scalia during remarks at Presbyterian Christian High School in Hattiesburg, Miss., seized the reporters’ hand-held recorders — returning them only after the pair agreed to erase the recording of the justice’s speech and answers to questions.

“I abhor as much as any American the prospect of a law enforcement officer’s seizing a reporter’s notes or recording. The marshals were doing what they believed to be their job, and the fault was mine in not assuring that the ground rules had been clarified,” he wrote.

“I have learned my lesson (at your expense), and shall certainly be more careful in the future. Indeed, in the future I will make it clear that recording for use of the print media is no problem at all,” Scalia said in his letter to Konz, which is on display at the Newseum.

But even then, journalists criticized him for the position that other kinds of recordings could be restrained. A New York Times editorial praised his apology but added, “Most unwelcome, though, and offensive to the First Amendment, was his suggestion that he retains a ‘First Amendment right’ to bar audio and visual coverage of his public speeches by the electronic media. There is no such right, as any person charged with safeguarding America’s cherished free speech rights should easily see.”

Scalia argued his view on “textualism” was the ultimate defense of the First Amendment. In March 2012, an Associated Press report said he told an audience at Wesleyan University that the Court’s early justices would be “astonished that the notion of the Constitution changes to mean whatever each successive generation would like it to mean. … In fact, it would be not much use to have a First Amendment, for example, if the freedom of speech included only what some future generation wanted it to include. That would guarantee nothing at all.”

That opinion didn’t prevent Scalia from harsh criticism of what is widely viewed as one of the essential court rulings protecting free speech and a free press — the 1964 decision in New York Times Co. v. Sullivan.

At the Newseum in the Aspen Institute 2011 Washington Ideas Forum, Scalia said the landmark ruling meant “you can libel public figures without liability so long as you are relying on some statement from a reliable source, whether it’s true or not.

“Now the old libel law used to be (that) you’re responsible, you say something false that harms somebody’s reputation, we don’t care if it was told to you by nine bishops, you are liable,” Scalia said. “New York Times v. Sullivan just cast that aside because the Court thought in modern society, it’d be a good idea if the press could say a lot of stuff about public figures without having to worry. And that may be correct, that may be right, but if it was right it should have been adopted by the people. It should have been debated in the New York Legislature and the New York Legislature could have said, ‘Yes, we’re going to change our libel law.’”

But in Times v. Sullivan, Scalia said the Supreme Court, under Justice Earl Warren, “… simply decided, ‘Yes, it used to be that … George Washington could sue somebody that libeled him, but we don’t think that’s a good idea anymore.’”

Journalist Tony Mauro, veteran Supreme Court reporter and a legal correspondent for the Newseum Institute’s First Amendment Center, wrote in June 2011, “When it comes to the First Amendment, as with other parts of the Constitution and Bill of Rights, Supreme Court Justice Antonin Scalia’s credo usually goes like this: If it was good enough for 18th century America, it’s good enough for us now.”

Mauro wrote that “In Doe v. Reed last year when the issue was whether the names of petition signers should be kept private, Scalia said no, pointing to Colonial-era “viva voce voting” practices — individuals voting out loud, often in the presence of candidates. In Citizens United v. Federal Election Commission, Scalia traveled back to the late 18th century for proof that corporations should enjoy the same free-speech rights as individuals. And in commercial-speech cases, Scalia has been impressed by the fact that Colonial newspapers carried advertisements as well as news stories on their front pages.”

Scalia voted in 1989 to strike down a law making it a crime to burn an American flag, and again in 1990 to void a Congressional attempt to reverse that decision — joining in the majority to say it was protected speech. But he often noted those decisions went against his personal views. “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said in comments at a Philadelphia appearance just last November. “But I am not king.”

Scalia was unabashed in standing up publicly about his votes in even the most controversial cases, including one decision that has loud echoes in this year’s presidential race. Defending his role in Citizens United v. FEC, in 2010, that struck down limits on political spending by corporations and labor unions, Scalia told CNN’s Piers Morgan in July 2012 that “Thomas Jefferson would have said the more speech, the better. That’s what the First Amendment is all about. So long as the people know where the speech is coming from.”

Scalia was asked about the 5-4 decision during a 2012 presentation before the South Carolina Bar Association, which had led in the rise of so-called “Super PACs” — political action committees that can take in unlimited contributions and use those funds for political advertising, as long as they don’t directly coordinate with the candidate.

“I don’t care who is doing the speech — the more the merrier,” Scalia said. “People are not stupid. If they don’t like it (the advertising), they’ll shut it off.”

History likely will remember Scalia not only for certain Court opinions and dissents, but also for being the embodiment of what the Court has defended since the First Amendment was adopted: The vigorous, robust and full discussion of matters of public concern. At various times charming, humorous, biting, sarcastic, critical and loyal, Scalia believed in not just holding to one’s views but also in publicly expressing them.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center.

Email: gpolicinski@newseum.org
Twitter: @genefac

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