In a recent conversation at the Aspen Institute's 2011 Washington D.C.'s Ideas Forum, Justice Antonin Scalia offered some interesting observations about his theory of originalism and the meaning of the First Amendment.
During the course of the conversation, Justice Scalia apparently brought up the Supreme Court's landmark 1964 decision in New York Times v. Sullivan. The situation in Sullivan was fairly straightforward. L.B. Sullivan, a Commissioner of Montgomery, Alabama, brought a civil libel action against several black clergymen and the New York Times because a fundraising ad run by the clergymen in the Times allegedly made several inaccurate statements in its description of a civil rights protest in Montgomery. The statements, if inaccurate, did not name Sullivan specifically and were relatively trivial in context. Although Sullivan could not prove that he had suffered any actual pecuniary damages as a result of the publication, the all-white Alabama jury awarded him damages of $500,000 (remember, this is in 1964).
When the case worked its way up to the Supreme Court of the United States, the Court unanimously held that it violated the First Amendment for the state to hold the New York Times and the clergymen liable. The Court held that even if the statements were factually inaccurate, it is unconstitutional to hold the speakers liable unless they acted with either knowledge of falsity or reckless disregard for the truth. Although conceding that false statements of fact do not themselves have any constitutional value, the Court recognized that to hold speakers liable for inadvertent false statements would seriously "chill" the willingness of citizens to engage in robust public debate. The general reaction to the decision in New York Times v. Sullivan at the time was captured by two seminal First Amendment thinkers -- Alexander Meiklejohn and Harry Kalven -- who proclaimed it an "occasion for dancing in the streets."
To fully understand the practical importance of New York Times v. Sullivan, it is important to consider the historical context. At the time of the decision, the South was in the throes of the civil rights movement. Southerners were deeply concerned about public opinion in the rest of country. The more the national media covered civil rights protests in the South, the more public opinion turned against those who were seeking to preserve segregation. Strategic lawsuits for libel brought by public officials against the national media for technical misstatements in news reports about civil rights protests were intended to deter the national media from covering the civil rights movement. This strategy was made especially effective because Southern juries were inclined to grant excessive damage awards against those who were embarrassing the South. In 1964, there were many similar actions pending against the New York Times in the South. The Supreme Court was acutely aware of this state of affairs, and that awareness no doubt led the justices to give the case the attention it deserved.
This brings me back to Justice Scalia. In his conversation during the Aspen Institute program, Justice Scalia made his familiar and obviously correct point that courts should not render decisions that in effect legislate. He then went on to say that New York Times Co. v. Sullivan was such a case. He explained that "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." In other words, if the statement was inaccurate, the speaker was liable, without regard to whether the speaker reasonably believed the statement to be true. Justice Scalia found the Court's change in the law illegitimate:
New York Times v. Sullivan just cast [the traditional common law of libel] 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 the living constitutionalists on the Supreme Court, the Warren Court, 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 any more.'
In Justice Scalia's view, then, the critical question is whether the Framers of the First Amendment at the time understood the provision as embracing the rule of New York Times v. Sullivan. If not - and clearly they did not understand the Amendment in that way in 1790 - then that ends the matter. The Constitution has nothing to say about the issue in New York Times v. Sullivan and it's up to the people of New York to change their law, if they want to do so.
There are many things wrong with this argument, and with originalism generally, (see here), but I want to focus on one point in particular. Justice Scalia suggests that the solution to the problem in New York Times was for the New York legislature to change its libel law. But the New York legislature had absolutely nothing to do with this situation. This was a lawsuit in Alabama, decided under Alabama law by an Alabama jury. The New York legislature was completely powerless to affect the matter in any way.
It was precisely this fact that made a constitutional decision necessary. It's bad enough that Alabama wants to censor what its own citizens can read, but what the situation in New York Times v. Sullivan demonstrated was that the nation cannot constitutionally allow each state to censor speech on its own, because in a national marketplace of ideas censorship in one state effectively precludes the press from distributing news to people nationally. Although only a few hundred copies of that issue of the New York Times actually found their way into Alabama, that gave Alabama sufficient leverage to impose a huge penalty on the Times that was designed to deter it from writing negative stories about the South generally.
In Justice Scalia's world, the New York legislature could do nothing to protect the right of its citizens to be informed, the national government could do nothing to protect the New York Times (and all other national news outlets) from such censorship, and as a result citizens throughout the nation would have their capacity to learn and to understand their own nation squelched by the State of Alabama. The Supreme Court in New York Times quite correctly concluded that such an outcome was profoundly inconsistent with what the Framers of the First Amendment had in mind.
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I don't have his fancy legal education, but to me, the plain reading of "Congress shall make no law... abridging the freedom of speech, or of the press...." makes the freedom of the press a special instance of freedom of speech and can in no way be construed to extend the freedom of speech to any corporate group other than the press.
Of course, there is long tradition of Supreme Court decisions that have extended the right of free speech to groups that were organized specifically to magnify the voices of like-minded individuals, such as labor unions, but I don't expect an "originalist" like Scalia to agree with those opinions.
What I find shocking about Citizen's United is that it saw fit to not only equate money and speech, but chose to take a series of cases that specifically dealt with groups organized to magnify speech and chose to confer those rights on corporations that were organized solely (or at least I thought that was the business of business?) for the purpose of making a profit while limiting shareholder liability.
Silly me.
Well then, I guess this would make Scalia the number one enemy of Fox News today.
What I *can't stand* is the blatant, repetitive hypocrisy on the part of Scalia in his invocation of originalism. When he wants a conservative outcome, he easily discards his originalist scruples (as in, say McDonald v. Chicago, Citizens United v. FEC, or Bush v. Gore). Originalism then isn't really a guiding principle for coherent interpretation of the Constitution. It is a shield with which to hide his political activism.
I also think it's funny, on originalist lines, that the Constitution in itself does not grant to the Supreme Court the power of judicial review. Interestingly, that power was granted to the Court by the Court in Marbury.
As I alluded to in now-buried comments, Scalia's pretense of "originalism" simply evaporates when one holds him to any pretense that he is either: 1) a student of history, or 2) a student of the language of various provisions of the Constitution at the time it was written.
I'm willing to forgive a lot of things, but judicial hypocrisy isn't one I find easy, no matter how much time I spend on my knees (and, yes, that's both figurative and literal -- but not in the dirty way some Conservatives might choose to construe it!).
How do we know this?
Segregated schools were common in both the North and the South both before and after the Amendment was passed and ratified.
Congress, the same body, the same people, that passed the 14th Amendment, passed a statute after it passed the Amendment providing for segregated schools in DC.
Provisions in several pieces of legislation passed after the 14th Amendment could have been read to prohibit segregated schools. Southern Congressmen objected on that basis, and the provisions were removed.
The 14th Amendment, as originally conceived and understood, permitted segregation in public schools. Originalism is therefore contrary to the result reached in Brown. Indeed, the Court in Brown specifically refused to rely on original meaning, because it knew an originalist approach would have required an affirmation of Plessy.
To my mind, any legal theory that reaches a result contrary to Brown, as originalism must, has a severe legitimacy problem.
Segregated schools were common in both the North and the South when the amendment was passed by Congress and ratified by the states. After the Amendment was passed, Congress debated several pieces of legislation which, as originally drafted, could have been read to prohibit segregated schools. Many representatives and senators objected for precisely that reason, and the provisions were removed. Moreover, the same Congress that passed the 14th Amendment and the same representatives and senators who voted for the Amendment passed a state right after the Amendment was adopted that ordered the segregation of public schools in DC.
By any standard, by any measurement, the segregation of public schools was permissible under both the original intent and the original meaning of the 14th Amendment.
I take it, then, that to your mind Brown v. Board of Education, which relied on the equal protection clause of the 14th Amendment, was wrongly decided, because it did not reflect the original intent or original meaning of the 14th Amendment?