• Professor Steve Heyman

    Steven J. Heyman

    Professor of Law

    – Go to his faculty biography

    – Go to his publications:

       SSRN: http://papers.ssrn.com
       Bepress: http://works.bepress.com/steven_heyman/

    Justice Scalia and the Transformation of First Amendment Jurisprudence

    by  • March 1, 2016 • Faculty Commentary • 0 Comments

    By Steven Heyman, Professor of Law [reposted from ISCOTUS]


    Antonin Scalia served on the federal bench for over three decades, first on the U.S. Court of Appeals for the District of Columbia Circuit (1982-86) and then on the U.S. Supreme Court (1986-2016).  This period coincided with a remarkable shift in our nation’s ongoing debate over the meaning of the First Amendment.  Traditionally, liberals defended a broad understanding of the constitutional freedoms of speech, press, and association, while conservatives believed that those freedoms were subject to legal regulation in the interests of social order, public morality, and national security.  During the 1980s, however, some scholars and activists on the left started to propose restrictions on racist hate speech as well as violent and degrading pornography, on the ground that these forms of expression undermine the equality of women and minorities.  In response, some conservatives began to develop a more libertarian position, which appealed to the First Amendment as a bulwark against what they regarded as the dangers of political correctness.  In recent years, this conservative-libertarian approach has become one of the most important currents in First Amendment law.  The federal courts have increasingly used this approach to strike down regulations that seek to promote liberal or progressive values.

    Justice Scalia played a leading role in this transformation of First Amendment jurisprudence.  In R.A.V. v. City of St. Paul (1992), a teenager who burned a cross in an African-American family’s yard was charged with violating a city ordinance that prohibited the display of burning crosses, Nazi swastikas, and other symbols that one knows or reasonably should know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”  Although this ordinance seemed overly broad on its face, the Minnesota Supreme Court interpreted it in a narrow way to apply only to symbolic conduct that fell within the definition of “fighting words” or other categories of expression that have long been held unprotected by the First Amendment.  When interpreted in this way, the ordinance appeared to be constitutional, but the US Supreme Court struck it down.  In an opinion for five Justices, Scalia held that although the government may ban all fighting words, it may not ban only those fighting words that are based on race, religion, or gender, for this sort of “selectivity” raises the specter that the government is seeking to impose an ideological orthodoxy on citizens by punishing the expression of racist views. (more…)

    The Public vs. the Supreme Court: A Comment on the Citizens United Case

    by  • March 3, 2010 • Faculty Commentary • 7 Comments

    The following is the text of remarks that Professor Heyman made at a forum on Citizens United v. Federal Election Commission which was held at Chicago-Kent on February 24, 2010, and which was co-sponsored by the Student Bar Association and the Chicago-Kent chapters of the American Constitution Society and the Federalist Society. Professor Sheldon Nahmod also spoke at the forum; his discussion of the case can be found here and here.

    By Steven Heyman


    In the Citizens United case, the Supreme Court was sharply divided, with five conservative Justices in the majority and four liberals in dissent. The immediate political reaction also followed predictable lines. President Obama and the congressional Democrats denounced the decision as a fundamental blow to our democracy. On the other hand, Republicans like Mitch McConnell, the Senate minority leader, hailed the decision as a victory for freedom of speech.

    All of this might lead one to believe that the issue in Citizens United is just one more area where the country is deeply divided along ideological lines, just as it is on issues like health care reform or government spending or abortion. But there are some indications that this isn’t true. For example, last week the Washington Post and ABC News released a poll that showed that four out of five Americans disagree with the Court’s decision in this case. Still more remarkably, the poll shows very little difference among political groups: 85 percent of Democrats oppose the ruling, but so do 81 percent of Independents and 76 percent of Republicans. And the poll also suggests that this is an issue that people feel deeply about: 65 percent of respondents say that they are strongly opposed to the decision, and 72 percent say they would support congressional action to reinstate the limits on corporate advertising in elections.

    So the question that arises is this: What led the Supreme Court to make a decision that is so broadly rejected by the public?

    (more…)