When five became four

Justice Scalia's contribution to the law of free speech
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AP Photo/J. Scott Applewhite

U.S. Supreme Court Justice Antonin Scalia in 2005.

He was a moving force in constitutional and statutory law and in the interpretation of legal documents generally. In that area he was more than a man; he was a movement. In oral arguments, he was spirited and disputatious, a force with which to reckon. In dissent he wielded a pen with the skill of a expert marksman. In sum, he was a larger than life persona. He was, of course, Justice Antonin Scalia (1936-2016).

His shadow did not, however, cast as long in the First Amendment freedom-of-expression arena. His beloved originalist textualism, for example, never took real root when it came to free speech cases. True, there were opinions like his concurrence in Citizens United v. FEC (2010). But that was largely cabined to a truncated discussion of whether corporations were covered by the First Amendment. And then there was his opinion for the Court in Brown v. Entertainment Merchants Association (2011), an opinion that had an absolutist-historical flare about it. In that case, Justice Scalia spoke categorically: “The most basic principle — that government lacks the power to restrict expression because of its message, ideas, subject matter, or content... — is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words.” But it was more of a cart blanche declaration than a full-fledged theory of originalism in the free-speech context.

Unlike Justice Hugo Black’s First Amendment originalism, Scalia’s textualism never took front-and-center stage in the free speech debates over the meaning of the First Amendment. And it is just as well since Scalia’s brand of originalism would likely produce diminishing returns. (Consider, for example, his distain for New York Times, Co. v. Sullivan. See Erik Wemple, “Antonin Scalia Hates NYT v. Sullivan,” Washington. Post, Dec. 4, 2012).

By way of profile: During his tenure on the Roberts Court, Justice Scalia never wrote for the majority in any of the twelve 5-4 free speech cases that divided the Justices. Though he authored five majority opinions, that number paled in comparison to the thirteen such opinions Chief Justice John Roberts wrote in First Amendment expression cases. Of Scalia’s five majority opinions, the judgment in three of them was unanimous and 7-2 in the others. Still, he cast the deciding vote in cases such as

Tracking Harris v. Quinn, there is Friedrichs v. California Teachers Association, another labor union case. It was argued last January. Friedrichs teed up the possibility that the Court would overrule Abood v. Detroit Board of Education (1977). Judging from oral arguments, it appeared that Justice Scalia was prepared to join his conservative colleagues in pitching Abood into the precedential dumpster. But now? Well, Friedrichs will likely be either summarily affirmed or reset for oral arguments at some unknown date.

And then there is Holder v. Humanitarian Law Project (2010), a 6-3 “material support” for terrorists’ case. Scalia’s majority vote in Holder could prove significant since Justice John Paul Stevens was also in the majority. Given that Justice Elena Kagan replaced Justice Stevens, if she were to join the Holder dissenters that would make for a new five-person majority.

Add this to the jurisprudential mix: Justice Scalia wrote some noteworthy concurrences in free-speech cases. One was in McCullen v. Coakley (2014) (an abortion-clinic protest case); the other was in Citizens United v. FEC (2010) (a campaign finance case). In both cases, his First Amendment-like absolutism would delight conservatives and depress liberals.

In the changed-his-mind category there is this: In the early days Justice Scalia was a foe of commercial speech as evidenced by his majority opinion in Board of Trustees of State University of New York v. Fox (1989). But he came around as suggested by his concurrence in 44 Liquormart v. Rhode Island (1996) and his majority vote in Sorrell v. IMS Health, Inc. (2011).

By contrast, free speech stalwarts will take exception to his dissent in United States v. Playboy Entertainment Group, Inc. (2000) in which he treated sexually-oriented programming under the Telecommunications Act of 1996 as if were obscenity. By the same moral measure, there are his concurrences in Barnes v Glen Theatre, Inc. (1991) and City of Los Angeles v. Alameda Books, Inc. (2002), two secondary-effects cases in which he allowed that doctrine to fence in a good measure of expressive freedom. Likewise, his majority vote in Rust v. Sullivan (1991) and his dissent in Legal Service Corp. v. Velazquez (2001), both involving funding restrictions on speech, are unlikely to win favor among First Amendment devotees.

If any one Scalia First Amendment free expression opinion stands out from the rest, it is his majority opinion in R.A.V. v. City of St. Paul (1992), a race cross-burning case. In R.A.V. Justice Scalia fortified the ban on content discrimination by adding a new wrinkle to it – even unprotected speech (e.g., libel) may be entitled to some protection if the subcategories of that speech are impermissibly drawn (e.g., outlawing only libel critical of the government). This fascination with content discrimination has become one of the First Amendment hallmarks of the Roberts Court. (See, e.g., Reed v. Town of Gilbert (2015)).

Color him as you will. On the one hand, he was a First Amendment loyalist in the campaign finance and commercial speech line of cases, while on the other hand he betrayed free speech values in the government speech and student speech line of cases and in the “material support” case. When it came to the First Amendment and free expression, Chief Justice Roberts and Justice Anthony Kennedy largely eclipsed him. And as noted, his originalist jurisprudence never gained much traction in free speech cases.

In the marketplace of today’s ideologies, what counts most is whether the Justice who replaces Antonin Scalia is a liberal or conservative. Though it is a sign of our times, it is never a good sign for a robust First Amendment that flies no ideological flags.

Ronald Collins is the Harold S. Shefelman scholar at the University of Washington Law School. He writes a weekly First Amendment News blog post, which appears on the Concurring Opinions website.