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Turn Off the TV? Scalia's Baffling Civics Lesson

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There is a sports radio talk show host in New York City who has a simple solution for disgruntled fans: if you don't like what your team is doing, he says, stop complaining about it and vote with your wallet. Don't go to your team's games. Don't watch your team on television. Don't read about your team in the sports pages. Ignore it.

That, you might argue, is the "free market" approach to sports enthusiasm, and while many regard this particular talker as a bit of a bully -- if you live in New York, you know who he is -- callers rarely provide the obvious come-back, professional sports are, purely speaking, not part of the free market. Most teams have a monopoly on their piece of geography, meaning that if you forgo the team, you forgo the sport; and in a business where an acute identification with the product is central to its appeal, no Jets fan or Phillies fan or Ravens fan or, shudder, Mets fan (like me) would simply abandon his team the way that one might opt to abandon a diner if it kept on burning your toast. We Met fans may complain, but it is still our team.

I thought of this last week, not simply because the football playoffs reduced the field to two -- the New England Patriots and the New York Giants -- who will now vie in the mother of all fan spectacles, the Super Bowl. But also because Supreme Court Justice Antonin Scalia, speaking at a South Carolina Bar Association event, had much the same point of view as the aforementioned sports host when he offered this advice about our political process: if you do not like the rash of intensely negative campaign commercials on television this year, the ones made possible by the court's 2010 decision in Citizens United, then turn off the television.

Really? Does he mean this? If we find the political process, our political process, to be so degraded as to offend our democratic sensibilities, the only choice in this, our democracy, our only democracy, is that we interrupt our entertainment habits and block our ears, that we separate ourselves from the commanding communications medium of our time, television, and get our news someplace else? I understand his defense of Citizens United; I even agree with some of it. But to maintain that we should love it or leave it is the worst kind of civics lesson that he, an associate justice of the U.S. Supreme Court, can provide.

What about the free-market principle of good speech drowning out bad? What about the people's check on the court, a.k.a. the power to amend the Constitution? What about electing a president who will nominate justices who might eventually overturn this judgment? There are plenty of things to do if you don't like our politics or our Supreme Court's decisions, but unplugging your television set and recoiling to the life of a monk should not be one of them. We have to own our democracy or, frankly, we can't claim it to be one.

The First-Amendment comparison to the free market -- that its value is in the way it encourages a competitive exchange of ideas just as there is a competitive market for goods and services -- has long been an attractive one, since markets are by definition statements of will, and if democracy stands for anything, it is the people's will. In a sense, we are always "voting" with our wallets, whether it is the cereal we opt to put on our breakfast table or the charity we choose to bolster with our giving.

The great Justice Oliver Wendell Holmes was the first to coin this analogy while discussing speech -- a "free trade in ideas" is the expression he actually used -- though, ironically, he was writing in dissent of the Supreme Court's 1918 decision in Abrams v. United States, a case where the majority ruled that that the First Amendment does not protect words that could be construed as incitements to violence (a doctrine that has long since been refined to a standard requiring an incitement to "imminent" lawlessness).

But an analogy can be dangerous if it is taken too far. If Justice Scalia thinks that turning off the television is the correct response to offensive speech because it is the best choice offered by the "marketplace," then he is taking this one too far. Citizens United is this court's most controversial decision for a reason; it is not only about speech, it is about the most important speech we have, the speech that the Founders ranked higher in value than any other, speech central to our political process.

The majority's argument recognized this; that's one of the reasons why it did not feel as though the state could, under the First Amendment, be allowed to regulate it. But if the effect of the decision is to drive us from the political arena, to disgust us from the coarseness of our own politics, to let a handful of monied interests dominate our discourse, then we have used our logic, our piety of principle, to undermine the very reason for our freedom in the first place. I wonder how the majority would defend its decision if its effect were to force so many people to turn the television off, that they stopped participating in the democratic process and maybe even stopped voting?

Absolutism can be a fetish, and when it stands this boldly in the way of our political branches instituting genuine reform on a political issue, it can only be seen as a dangerous fetish. I feel confident that Holmes himself would have understood this. In that same Abrams dissent, he refers to the Constitution as "an experiment, like all life is an experiment." It was a line he borrowed from the great 19th-century American writer Ralph Waldo Emerson, but the Emerson original is even better. "The more experiments you make," the poet continued, "the better."

Todd Brewster is the Director of the National Constitution Center's Peter Jennings Project and the Center for Oral History at West Point.

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