Scalia Speaks: Reflections on Law, Faith, and Life Well Lived by Scalia Antonin

Author:Scalia, Antonin [Scalia, Antonin]
Language: eng
Format: epub
Tags: Politics, Biography, History, Philosophy, Religion
ISBN: 9780525573326
Google: adgzDwAAQBAJ
Amazon: B073TJWYHP
Goodreads: 35837561
Publisher: Forum Books
Published: 2017-10-03T07:00:00+00:00

Now I agree with Justice Black that it is “distasteful, useless, and time-consuming” for the Court to sort through obscene materials deciding what should and should not be allowed. But it is non-originalist jurisprudence that has made this a difficult chore, by adding to the requirement that the material appeal to a prurient interest in sex the requirements that it do so “as a whole,” that it “portray sexual conduct in a patently offensive way,” and that “taken as a whole, it…not have serious literary, artistic, political, or scientific value.” In any case, it is only Justice Black’s “literal” reading of the First Amendment (which as I have said is not really very literal) that enables him to avoid the difficulty.

One outspoken critic of originalism has called Justice Black “by far the most successful originalist of the last century.” Both the adjective and the noun are wrong. As for successful, only Justice William O. Douglas ever joined Justice Black in his “absolutist” views of the First Amendment, and no one on the current Court has taken up their banner. And as for originalist, as we have seen, with respect to the First Amendment Justice Black did not take an originalist approach. His opinion in New York Times v. Sullivan, for example, spent a great deal of time explaining why libel laws were a bad idea, and then, for support in the original understanding, offered up a footnote with a single citation, telling the reader to “See, e.g.,” an 1803 commentary from a law professor that did not even support his claims.

There are other examples of speech that is unprotected by the First Amendment because “the freedom of speech” was not understood to cover it. Incitement to violence and fighting words, for example. Other speech, such as criminal conspiracy and solicitation or fraud, has not yet come before my court in a First Amendment case, but since these forms of speech have long been criminalized without serious First Amendment challenge, I doubt we would find that the First Amendment was understood to protect them. I have no idea how Justice Black would have handled them. Would he really say that laws prohibiting false advertising are unconstitutional?

Under an originalist approach, not only is speech unprotected at the Founding unprotected today, but speech protected at the Founding remains protected today. Exemplifying that point is a recent Supreme Court case, Brown v. Entertainment Merchants Association, which involved a California law restricting the sale or rental of violent video games to minors. First, the Court (in an opinion I wrote) reaffirmed the principle I mentioned earlier, that “the basic principles of freedom of speech…do not vary” with a new and different communication medium. Next it noted that the First Amendment excludes from its protection certain limited categories of historically unprotected speech, such as obscenity, incitement, and fighting words. But speech about violence was not among those historically unprotected categories. The California legislature was not free to create its own new category of unprotected speech—speech about violence—by weighing the value of such speech against its social costs.

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