Justice Scalia, Originalism, Free Speech And The First Amendment

Justice Scalia was a great protector of First Amendment freedoms.

Antonin Scalia finger raised LFThe late Justice Antonin Scalia definitely availed himself of First Amendment freedoms. He was generally regarded as the most outspoken member of the Supreme Court, both on the bench and off, and he was a prolific writer as well, author of many books (affiliate link) and articles.

As a jurist, Justice Scalia was a staunch protector of free speech — even though, interestingly enough, the First Amendment doesn’t lend itself easily to originalism, his favored mode of analysis. These themes emerged during two panels at the Federalist Society’s recent 2016 National Lawyers Convention, centered on celebrating Justice Scalia’s life and legacy. The first panel focused on free speech, election law, and originalism, and the second panel covered Justice Scalia’s influence on different areas of law, including free speech law.

Free speech is an important topic to tackle given how it’s under attack today. Professor Nadine Strossen of New York Law School, president of the American Civil Liberties Union (ACLU) from 1991 to 2008, noted that advocating free speech has been described as “conservative,” in quarters where that’s not a compliment, and has even been investigated as “hate speech” on some university campuses.

Strossen’s political views are well to the left of most Federalist Society members, but on free speech, they’re with her. “Normally speaking at the Federalist Society is going into the lion’s den for me,” she said, “but on this issue, I’m preaching to the choir.”

Justice Scalia knew how his views on the First Amendment were shared by far more liberal figures — and even took a certain amount of pride in it. Floyd Abrams of Cahill Gordon, one of the nation’s most prominent First Amendment lawyers, recalled spending time with Justice Scalia and Nadine Strossen at a conference. They enjoyed a few drinks; Justice Scalia had some cigars. He then sat back in his chair and told Abrams and Strossen, “I’m really not bad about the First Amendment.”

Justice Scalia meant that jokingly — “bad” as in “unpalatable to the left” — but he was right. As Abrams noted, the justice was one of the most protective jurists regarding the First Amendment, and his rulings in the area will endure because of both their intellectual power and the force of his writing. Floyd Abrams highlighted four must-read Scalia opinions on the First Amendment: his dissent in Austin v. Michigan Chamber of Commerce (reviewing Michigan’s campaign finance law); his dissent in Hill v. Colorado (regulation of abortion protesters); his concurrence in McCullen v. Coakley (same); and his opinion for the Court in Brown v. Entertainment Merchants Association (the California violent video-games case).

In addition to writing important First Amendment opinions, Justice Scalia joined the free-speech opinions of other justices. Perhaps most famously, he voted with the majority in Texas v. Johnson, in which the Court held that flag burning was protected speech. That was a 5-4 decision, so Justice Scalia’s vote was dispositive. He was fond of citing the case as an example of one where his legal views and political preferences diverged; as he memorably put it, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”

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Justice Scalia’s protectiveness of the First Amendment flowed more from his views on stare decisis and his respect for precedent, rather than his originalist approach to constitutional interpretation. As both Nadine Strossen and Floyd Abrams pointed out, modern First Amendment jurisprudence doesn’t flow naturally from originalism. Or as their fellow panelist Michael McConnell put it, “Free speech has been kind of a desert when it comes to originalism.”

Originalism, or interpreting constitutional provisions based on their original public meaning at the time of enactment, focuses on text and history. But the text of the First Amendment — “Congress shall make no law… abridging the freedom of speech, or of the press” — is brief and a bit opaque. And looking at historical circumstances and practice doesn’t help much either, at least in terms of making sense of current SCOTUS jurisprudence. As noted by Strossen, during the Founding era there were laws on the books against seditious libel — laws that would be clearly unconstitutional today. Similarly, Professor Michael McConnell observed that prosecuting purveyors of pornography, which is circumscribed by the First Amendment today, would have been fine at the time of the Founding.

Professor David Rabban of the University of Texas echoed this analysis in his remarks. After extensive research into what a variety of Americans thought about free speech around the time of the framing and ratification of the Constitution, he believes that the original meaning of the First Amendment doesn’t tell us how to decide, say, the case of New York Times v. Sullivan (the landmark case laying down the “actual malice” standard for libel claims by public officials). Nor does the original meaning help us much on issues like campaign finance, commercial speech, pornography or violent video games. Rabban’s summary: “the original understanding of the First Amendment can help address some contemporary issues, but in many cases we must use alternative modes of analysis.”

In light of the challenge of applying originalism to modern First Amendment debates, it makes some sense that Justice Scalia relied less heavily upon originalist analysis in this as compared to other areas of law. Strossen cited one study reporting that in First Amendment cases, “Justice Brennan used originalism far more, and Justices Scalia and Thomas used it far less, than their public positions on originalism would suggest.”

Notwithstanding Justice Scalia’s focus on judge-made precedent over originalist analysis in this area, what approach should a committed originalist take to First Amendment issues? Given the opacity of the text, Professor McConnell argues that originalists must dig deep into the historical record, looking at developments such as the 1735 libel trial of John Peter Zenger and the debates over the Sedition Act of 1798 to get a better understanding of the scope of the First Amendment. Based on his own study of this area, here is McConnell’s preferred approach: go back to the 1942 case of Chaplinsky v. New Hampshire, in which the Supreme Court identified various categories of speech not subject to protection — “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words'” — and add more rigor and detail to that analytical framework.

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Contrary to the caricature of Justice Scalia painted by some on the left, his record leaves much to be admired and appreciated by liberals. His criminal-law jurisprudence might get more press, but his defense of free speech and the First Amendment must be remembered as well.

Originalism and the First Amendment [Federalist Society via YouTube]
Areas of Constitutional Doctrine Transformed [Federalist Society via YouTube]
2016 National Lawyers Convention [Federalist Society]


DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.