Justice Scalia and the Transformation of First Amendment Jurisprudence

Post by Steven Heyman, Professor of Law at IIT Chicago-Kent School of Law. 

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.  

In this way, Scalia took the position that even very narrow forms of hate speech regulation violate the First Amendment.  To reach this result, he had to dramatically expand existing First Amendment doctrine:  while the Court had long held that the government generally may not discriminate between different forms of speech that are protected by the First Amendment, it had never before extended that rule to unprotected categories of speech such as fighting words.  Thus, it was hardly surprising that Scalia’s ruling was deeply controversial.  As several liberal Justices contended in R.A.V., fighting words are unprotected because they convey a message of “imminent violence,” and this “message . . . is at its ugliest when directed against groups that have long been the targets of discrimination.”

Scalia’s approach to the issue of campaign finance reform was no less controversial.  In Austin v. Michigan State Chamber of Commerce (1990), Justice Thurgood Marshall ruled that the government could ban electoral expenditures by business corporations in order to prevent them from using “resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace.”  In a characteristically pungent dissent, Scalia contended that this decision was based on an “Orwellian” view “that too much speech is an evil that the democratic majority can proscribe.”  Scalia’s position triumphed two decades later in Citizens United v. Federal Election Commission (2010).  In that case, the five conservatives declared that bans on corporate electoral speech constituted an impermissible effort to “silence entities whose voices the Government deems to be suspect.”  Scalia contributed a concurring opinion that defended the majority’s position on originalist grounds.  

In both R.A.V. and the campaign finance cases, Scalia used the First Amendment to oppose speech regulations that came from the left.  The same is true of his opinions in cases such as Hill v. Colorado (2000) and McCullen v. Coakley (2014), in which he condemned laws that restricted the efforts of pro-life activists to dissuade women from entering abortion clinics.  Similarly, in cases like Rosenberger v. University of Virginia (1995) and Christian Legal Society v. Martinez (2010), he joined with conservative colleagues to defend conservative religious expression on campus.  

Yet Scalia’s libertarian approach to the  First Amendment was not a narrowly political one, but a more principled stance that made him skeptical of many restrictions on the content of speech, regardless of their ideological origin.  For example, in Brown v. Entertainment Merchants Association (2011), he invalidated a ban on the sale of violent video games to minors, writing a five-to-four opinion that was joined by most of the liberal Justices.  Most strikingly, he provided a decisive vote for the Court’s five-to-four decision in Texas v. Johnson (1989), in which Justice William J. Brennan, Jr. ruled that flag burning was entitled to constitutional protection.  As Scalia later explained on the lecture circuit, while he personally wished that he could put “scruffy, bearded, sandal-wearing” flag-burners in jail, his understanding of the First Amendment did not permit him to do so.

This is not to say that on Scalia’s view the First Amendment protected all speech.  Relying on original understanding and tradition, he accepted the Court’s longstanding position that some narrowly defined categories of expression could be restricted in the name of “social order and morality.”  On these grounds, Scalia maintained that the Constitution provided little protection to sexually explicit expression — such as nude dancing and internet pornography – even when such expression did not meet the Court’s legal standard for obscenity.  Moreover, his conservative-libertarian approach was based on a sharp distinction between the sphere of private liberty and the sphere of government authority.  Thus, at the same time that he contended that the government could rarely restrict speech by private individuals, he insisted that it had far-reaching power to decide what speech to fund (as by denying federal grants to artists to produce indecent or sacrilegious work), as well as to control speech by individuals within public institutions, such as prisoners and public employees. In all of these ways, Scalia profoundly influenced our legal system’s understanding of the First Amendment freedom of expression, and his legacy is a complex and controversial one.  

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