FAN.7 (First Amendment News) — Justice Scalia & the First Amendment
“The words are the law.” Sound familiar? Of course, they are the words of none other than Justice Antonin Scalia, spoken at Catholic University of America on Oct. 18, 1996. As I considered them recently, I wondered, yet again, how the Justice’s view of textualism and originalism — I do not say “original intent,” which would be a breach of the Scalia creed — plays out in the First Amendment context. That took me back to the First Amendment debate between then Judges Robert Bork and Antonin Scalia in Ollman v. Evans (D.C. Cir., 1984), which is well worth reflective consideration. See e.g. Steven Calabresi & Lauren Pope, “Judge Robert H. Bork and Constitutional Change: An Essay on Ollman v Evans,” 80 U Chi. L. Rev. Dialogue 155 (2013).
All of this brings me to my main point: Though it is not news in the literal textualist sense, it was news to me and may likewise be so to many others — I refer to Justice Scalia’s March 8, 2012 Hugo Black lecture on freedom of expression at Wesley College. The title of that lecture was “The Originalist Approach to the First Amendment.” A packed audience of college students and others listened to lecture. “After Scalia’s 40-minute speech, protesters in the balcony of the chapel where he spoke unfurled a banner reading, ‘There can be no justice in the court of the conqueror’ and flung dozens of condoms carrying pro-gay rights and pro-abortion messages.”
As to the substance, here are a few samples of what Justice Scalia reportedly said (the full text is, to the best of my knowledge, unpublished):
Libel. According to a news report, the Justice maintained that “[t]here’s no doubt that libel of a public figure, even good faith libel of a public figure, was unprotected by the First Amendment in 1791. Indeed, it remains unprotected even today in England. But the Warren Court had determined, as the framers had not, that allowing good faith libel of public figures would be good for democracy. And so the First Amendment was revised accordingly . . . .”
As for symbolic speech expressed by way of conduct, Scalia was quoted as saying: “You should be in no doubt that patriotic conservative that I am, I detest the burning of the nation’s flag, and if I were king, I would make it a crime. But as I understand the First Amendment, it guarantees the right to express contempt for the government, Congress, the Supreme Court, even the nation and the nation’s flag.”
Associations. Further elaborating on his ideas, and in response to a question, the Justice added: “The text guarantees the freedom of speech. That freedom of speech was never withheld from associations of people. Associations of people can speak just as people can speak and can band together to make their speech more effective, pool their resources . . . . If you’re going to deny it to corporations, are you going to deny it to the Washington Post? Most newspapers, most sources of political commentary, are corporations. How do you create an exception for that in the First Amendment? Because freedom of speech and of the press? C’mon, ‘press.’ The word ‘press’ meant publishing—anybody—not the institutional press. I’m not sure they had an institutional press.”
Questions? Mindful of such considerations, and duly sensitive to the “text and traditions of our people” concerning the words of the First Amendment, one might respectfully ask the textualist/originalist the following questions:
- Does the constitutional restriction on “Congress” extend to the other branches of government such as the executive and judicial branches? If so, how?
- How should one interpret the constitutional ban against Congress making laws? (Consider Hans Linde, “‘Clear and Present Danger’ Reexamined,” 22 Stan. L. Rev. 1163, 1183 & n.66 (1970).)
- What does “abridging” mean and is it synonymous “prohibiting” or “denying”?
- What exactly does “freedom of speech” mean? Did “speech” mean “money,” as in spending money for expressive purposes? Whatever else it meant, for Justice Scalia the term “speech” apparently did not include anonymous speech as evidenced by his dissent in McIntyre v. Ohio Elections Commission (1995) and his concurrence in Doe v. Reed (2010).
- How far does the notion of “press” extend? (Consider Volokh here)
- How exactly should we understand the term “petition”? (Consider S. Higginson here)
- What does the 1828 edition of Webster’s Dictionary of the English Language (apparently, the preferred edition?) tell us about such matters and how are we to discern the original “public meaning” insofar as these queries are concerned?
I have touched on some of these questions in short article titled “The Speech & Press Clauses of the First Amendment.” For additional discussion of the Justice and his views on the First Amendment and freedom of expression, see his A Matter of Interpretation 37-38, 45 (1997), and Richard A. Brisbin, Jr., Justice Scalia & The Conservative Revival 181-222 (1997), and David A. Schultz & Christopher E. Smith, The Jurisprudential Vision of Justice Antonin Scalia 123-157 (1996).
Floyd Abrams weighs in on government employee speech case
The case is Lane v. Franks, which the Supreme Court has agreed to hear. The issues in the case are: (1) Whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and (2) whether qualified immunity precludes a claim for damages in such an action. Tom Goldstein filed the cert. petition in the case.
The First Amendment Coalition, which filed an amicus brief, is among those supporting the Petitioner Edward Lane. Floyd Abrams is the counsel of record on that brief. Some of the other briefs in support of the Petitioner are an ACLU brief, a law professors brief (the professors include Nadine Strossen, Christina Wells, and Timothy Zick, among others), and a brief filed by the Government Accountability Project, which was prepared with the assistance of the Yale Law School Supreme Court Law Clinic. The S.G. also filed a brief, supporting an affirmance in part and a reversal in part.
As for Mr. Abrams, here is the crux of his argument: “The Garcetti decision may not be read so expansively as to permit the dismissal of a public employee simply because he told the truth, under oath, in court. That cannot be squared with principles established and repeated throughout the history of the First Amendment: that truthful speech is at the apex of the constitutional safeguard; that truthful speech about matters of public concern and the conduct of public officials is especially protected; and that truthful testimony in court, in particular, may not serve as the basis for public sanction.”
After discussing a variety of historical materials and judicial precedents, Abrams focused on the importance of a government employee being able to tell the truth in a judicial proceeding without fear of retribution from his employer. “[A] public employee’s obligation to testify truthfully,” he argued, “should be accompanied by the right to do so free from retaliation. If a public employee’s truthful testimony were not protected by the First Amendment, the employee would be faced with an intolerable Hobson’s choice if called to testify.” To liilustrate that choice, he drew upon an opinion by Judge Ronnie Abrams (his daughter) in Caruso v. City of New York (S.D., N.Y., Sept. 26, 2013): “He or she could either (1) honestly answer the question, in which case, as a matter of law, she could be fired; (2) commit perjury; or (3) refuse to answer the question posed and be held in contempt.”
Oral arguments in Lane are set for April 28th.
“Ag gag” law challenged
Late last month Idaho Governor C.L. “Butch” Otter signed into law (Idaho Code sec. 18-7042) what some are calling yet another “Ag gag” law. Six other states have enacted such laws and others are considering them. The Idaho law makes makes it a crime (punishable by up to a year in prison and a $5,000 fine) for anyone to take photos or videos at a factory farm or slaughterhouse without the owner’s express consent. A few days ago, the Idaho ACLU and other groups challenged the law in federal court. “The Idaho law is deeply distressing,” said UC Irvine Law School Dean Erwin Chemerinsky, “because it is aimed entirely at protecting an industry, especially in its worst practices that endanger people, at the expense of freedom of speech. It even would criminalize a whistle-blower who took a picture or video of wrongdoing in the workplace,” he added. “I am confident,” Chemerinsky emphasized, “that this law will be struck down under Ninth Circuit and Supreme Court precedents.” According to a news report in the Idaho Statesman, the “legislation, promoted heavily by Idaho’s dairy industry, comes after videos released by Los Angeles-based vegetarian and animal rights group Mercy for Animals showed workers at Bettencourt Dairy beating, stomping and sexually abusing cows in 2012. An activist secretly filmed the abuse after getting a job at the dairy.”
Data & dissent
In case you missed it, the Brennan Center has published an impressive and informative report entitled “What Government Does with America’s Data” by Rachel Levinson-Waldman. The report takes “a comprehensive look at the multiple ways U.S. intelligence agencies collect, share, and store data on average Americans. The report, which surveys across five intelligence agencies, finds that non-terrorism related data can be kept for up to 75 years or more, clogging national security databases and creating opportunities for abuse, and recommends multiple reforms that seek to tighten control over the government’s handling of Americans’ information.” Among other things, I noticed the section of the report concerning dissent (pp. 9-13), which flagged how groups such as the Catholic Worker, Green Peace, and People for the Ethical Treatment of Animals were improperly investigated, which can sometimes produce “a variety of adverse federal actions.”
- American flag t-shirt flap: Jonathan Turley, “Courts are killing students’ free speech rights,” Gannet News, March 4, 2014 (“On Cinco de Mayo in 2010, students who came to Live Oak High School outside San Jose were rounded up by teachers for engaging in offensive speech. The speech? They had American flags on their T-shirts, something the school viewed as insulting to Hispanics. Administrators insisted that only the Mexican flag could be shown on campus that day.”) Re 9th Cir. ruling, see Dariano v. Morgan Hill Unified School Dist. See also Eugene Volokh’s thoughtful commentary on this case: “Not safe to display American flag in American high school,” Volokh Conspiracy, Feb. 27, 2014 (“Somehow, we’ve reached the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech). Something is badly wrong, whether such an incident happens on May 5 or any other day.”). See additionally Volokh’s “High school student suspended for refusing to remove NRA T-shirt,” Volokh Conspiracy, March 13, 2014.
- Filming police: Luke Broadwater, “New city police policy says public has right to film officers,” Baltimore Sun, March 12, 2014, and Danny Jacobs, “A First Amendment confrontation and police wearing cameras,” Daily Record, March 13, 2014.
- Bork on Buckley: Marty Lederman, “Commentary: The return of the Robert Bork “dueling briefs” strategy: Buckley v. Valeo, Susan B. Anthony List, and Ohio Attorney General DeWine” (March 17, 2014, SCOTUSblog) (well worth the read!).
- College Student Speech: Frank D. LoMonte, “Fouling the First Amendment: Why Colleges Can’t, and Shouldn’t, Control Students Athletes’ Speech on Social Media,” 9 J. Bus. & Tech. L. 1 (2014).
- Lawyer & Judicial Speech: Wm. Breck Seinger, Jr., “Free speech rules cost us a good look at court decisions,” Idaho Statesman, March 2, 2014 (“The recently reported medical negligence case of Nield v. Pocatello Health Services raises critical issues regarding restrictions on First Amendment rights of lawyers and judicial candidates . . . .”).
- Murrow & Brennan: Gene Policinski, “Inside the First Amendment: Celebrating 2 First Amendment landmark moments,” Gannett News, March 17, 2014 (Sixty years ago, on March 9, 1954, CBS’ Edward R. Murrow hosted an episode of the prime-time television program “See It Now,” in which he successfully exposed Sen. Joseph McCarthy’s mean-spirited and shoddy tactics in pursuing alleged communists in the U.S. government. And on March 9, 1964″ decided New York Times v. Sullivan).
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