Last night, Justice Antonin Scalia delivered the prestigious Hugo Black Lecture at Wesleyan University, speaking in the university’s Memorial Chapel before a packed house. Wesleyan is an uber-liberal school — the basis for the movie PCU, about a very Politically Correct University — and Justice Scalia’s visit was preceded by campus protests (dubbed “Occupy Scalia”). But I was pleasantly surprised by how respectful and appreciative the audience was of Justice Scalia’s deeply thoughtful and persuasive remarks; the protests during his speech were minor and clustered near the end.
I trekked up to Middletown from New York City to attend the lecture. What did Justice Scalia have to say? And what did the protests entail?
The full title of the Hugo Black Lecture is the “Hugo L. Black Lecture on Freedom of Expression.” Fittingly enough, Justice Scalia’s speech consisted of a defense of originalism using the First Amendment as a case study. (Since Above the Law readers are primarily lawyers and law students, I’m assuming familiarity with originalism, Justice Scalia’s preferred method of constitutional interpretation. You can read all about it in his excellent book, A Matter of Interpretation: Federal Courts and the Law (affiliate link).)
Justice Scalia began with the text of the First Amendment (which happens to be my favorite constitutional amendment; my favorite federal statute, in case you’re wondering, is 47 U.S.C. § 230). The First Amendment reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Justice Scalia maintained, consistent with his originalist philosophy, that “the freedom of speech, or of the press” must be construed in light of how these terms were understood in 1791, when the First Amendment was adopted. He noted the presence of the definite article — “the freedom of speech,” not plain old “freedom of speech” — and argued that the Amendment should be understood as protecting the free-speech rights enjoyed by Englishmen at the time.
Under Justice Scalia’s originalist interpretation of the First Amendment, New York Times v. Sullivan, in which the Supreme Court held that a publisher can’t be held liable for defamation of a public figure absent “actual malice” (i.e., knowledge of a statement’s falsity or reckless disregard as to falsity), was wrongly decided. Back in 1791, nobody thought that “the freedom of speech” encompassed the right to libel public figures. We wound up with this “actual malice” standard, according to Justice Scalia, essentially because the Warren Court thought it would be good for democracy and good as a matter of public policy.
Justice Scalia highlighted his divergence on this issue from Justice Hugo Black, the namesake of the lecture series, who was much more of an absolutist with respect to the First Amendment. Justice Black’s view could be roughly summarized as saying, “‘make no law… abridging the freedom of speech’ means exactly that, namely, ‘make no law… abridging the freedom of speech.'” Justice Black, in other words, did not interpret “the freedom of speech” in the history-based way that Justice Scalia does. (Justice Scalia faulted what he described as the weakness and thin sourcing of Justice Black’s separate concurrence in Sullivan.)
What other laws or government policies does Justice Scalia not object to from a First Amendment point of view? He made a pointed reference to laws against fraud surely passing constitutional muster, which suggested to me that he’ll vote to uphold the Stolen Valor Act. (As Mike Sacks tweeted at me, Justice Scalia’s questions at oral argument also point in this direction.)
The government declining to fund your speech also does not constitute abridging the freedom of speech. Here Justice Scalia cited the case of NEA v. Finley and colorfully referred to artist Karen Finley as “the lady who covered her naked body in chocolate, or something weird.” This was met with laughter from the audience — which surprised me, given that Karen Finley is très Wesleyan. (As it turns out, she got her MFA at the San Francisco Art Institute.)
Justice Scalia noted that his originalist view of the First Amendment does not always align with his personal policy preferences. He cited his vote in Texas v. Johnson, where he provided the fifth vote for holding flag burning to be protected speech under the First Amendment. (This got amusingly mangled in the Hartford Courant’s write-up of the speech: “[Scalia] said he detests flag-burning and ‘if I were king, I would make it a crime.'” Yes, he literally said those words, but in the service of a point that was completely missed.)
He then turned to extol the virtues of originalism more generally. I won’t belabor this, since you’re all
sick to death of familiar with the debate between originalists and those who believe in a “living Constitution.” I’ll just offer some quick bullets about this part of Justice Scalia’s remarks:
- Originalism protects flexibility in policy because it lets the people decide what policies they favor by exercising their voting rights at the ballot box. The “living Constitution” school, on the other hand, takes many issues — e.g, abortion, through Roe v. Wade — and removes them from the normal political process, instead enshrining them in constitutional law. So “don’t love the living Constitution because it will bring you flexibility and choice; it will bring you rigidity.”
- Some critics of originalism question how much it relies on history, noting that lawyers aren’t historians. Justice Scalia had several responses: (1) historical inquiry is inevitable in construing the Constitution (e.g., do you know what a “Letter of Marque and Reprisal” is); (2) lawyers can turn to and cite the work of expert historians in going about constitutional analysis; and (3) there’s no reason to think that lawyers are better at picking policy outcomes and deciding “what ought to be” than they are at historical analysis.
- Originalism may not be perfect, but it doesn’t have to be; it just has to be better than the other options. Justice Scalia noted that the alternative modes of interpretation “don’t even have a name, which should give you pause.” (I am in favor of calling non-originalist approaches “The School of the Living, Breathing, Sushi-Eating, Stairmastering Constitution.”)
- Liberals should actually like originalism because of how it constrains judges: “Show Scalia the original meaning, and he will be prevented from imposing his nasty conservative views on the people!” (I love it when Justice Scalia refers to himself in the third person)
When Justice Scalia concluded his prepared remarks, the audience applauded, more than just respectfully. I had the sense that perhaps he had won some converts — or that, at the very least, convinced a few people that he wasn’t Evil Incarnate (contrary to some of the press coverage in the Wesleyan Argus prior to his visit).
Let’s now talk about the Q-and-A session. And the protests, of course….