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…)