FAN 147 (First Amendment News) Was Justice Scalia a First Amendment free-speech originalist?

His originalism was selective . . . and essentially absent in his First Amendment free speech jurisprudence . . . .

Like a great majority of originalists, although he recognized the problems with applying originalism, in practice he seemed to practice law office history.

Scalia was not an historian . . . His originalist opinions were almost always one-dimensional . . .  David Dorsen 

When it came to freedom of expression under the First Amendment, was Justice Antonin Scalia’s jurisprudence grounded in originalism? Did his First Amendment opinions in the following Roberts Court cases and elsewhere reflect the originalist jurisprudence he made famous?

During the Term of the Roberts Court, Justice Scalia wrote five majority opinions in First Amendment free-expression cases. Those opinions and the vote in them are set out below:

  1. Davenport v. Washington Educ. Association (2007) (9-0)
  2. United States v. Williams (2008) (7-2)
  3. New York State Bd. of Elections v. Lopez Torres (2008) (9-0)
  4. Brown v. Entertainment Merchants Association (2011) (7-2)
  5. Nevada Commission on Ethics v. Carrigan (2011) (9-0)

During that same Court era, Justice Scalia wrote dissents in the following cases First Amendment free-expression cases:

  1. Washington State Grange v. Washington State Rep. Party (2008) (7-2)
  2. Borough of Duryea v. Guarneri (2011) (concurring & dissenting in part) (8-1)
  3. Agency for International Development v. Alliance for Open Society International, Inc (2013) (6-2)

During that same Court era, Justice Scalia wrote concurrences in the following cases First Amendment free-expression cases:

  1. McCullen v. Coakley (2014) (9-0)
  2. Doe v. Reed (2010) (8-1)
  3. Pleasant Grove City, UT, et al v. Summum (2009) (9-0)
  4. Citizens United v. Federal Election Commission (2010) (5-4)

Justice Scalia & David Dorsen

How much did his originalist jurisprudence affect his thinking in those cases and others? Not much, says David Dorsen, author of The Unexpected Scalia: A Conservative Justice’s Liberal Opinions (Cambridge University Press, 2017).

In his latest book, Mr. Dorsen (who was a friend of the Justice) writes of Scalia’s “failure to look to the original understanding or meaning of many First Amendment issues ….” In a soon-to-be-posted interview I did with Mr. Dorsen for SCOTusblog, he added: “His originalist jurisprudence did have gaps. Perhaps the most important one was the freedom of speech (aside from pornography).”

Among other things, Dorsen argues that Scalia’s vote in Texas v. Johnson was inconsistent with his originalism: “No textual or historical evidence supports the contention that the society that adopted the First Amendment understood it to cover communicative activity like flag-burning. Symbolic expression, such as pictures and signs, were largely included, but that was it.”

“The distinction between content-based and content-neutral speech, the concepts of conduct as speech and fighting words, and the idea of conduct as protected speech are mid-to-late-twentieth century creations.”

Drawing on Professor Akhil Amar’s analysis, Dorsen maintains that Scalia’s opinion in R.A.V. v. City of St. Paul (1992) (cross burning) amounted to “‘an ambitious reconceptualization and synthesis of First Amendment doctrine.'”

Mr. Dorsen says more, much more, about Justice Scalia’s free-speech jurisprudence and originalism in his book, most of which highlights what Dorsen sees as the inconsistencies between the two.

 Again, more will be said on Justice Scalia’s originalism and textualism later this week in my SCOTUSblog Q&A with David Dorsen.


  1. Geoffrey Stone, Justice Scalia, Originalism and the First Amendment, Huffington Post, October 12, 2011
  2. FAN 7:  Justice Scalia & the First Amendment, March 19, 2014
  3. Gene Policinski, Justice Scalia: The 45 words — and original meaning — of the First Amendment, Newseum Institute, February 16, 2016
  4. Steven Heyman, Justice Scalia and the Transformation of First Amendment Jurisprudence, SCOTUS Now, February 27, 2016
  5. See Originalism and the First Amendment, Federalist Society Panel, Nov. 18, 2016 (Nadine Strossen, David Forte, & Bradford Clark)
  6. David Lat, Justice Scalia, Originalism, Free Speech And The First Amendment, Above the Law, November 22, 2016

Newseum Event: The President & the Press: The First Amendment in the First 100 Days

Today the Newseum is hosting a half-day forum that will explore the Trump administration’s relationship with the press in the critical first months. The program will be held at the Newseum and will feature one-on-one conversations, panel discussions and individual presentations.

Participants, including White House Press Secretary Sean Spicer and Counselor to the President Kellyanne Conway, will explore pertinent challenges to the First Amendment, a free press and protecting the free flow of information in a divided nation.

→ Live video feed here.

Guests include:

  • Jim Acosta, CNN
  • Mike Allen, Co-founder and Executive Editor, Axios
  • Bret Baier, Fox News
  • Carrie Budoff Brown, POLITICO
  • Kellyanne Conway, Counselor to the President
  • David Fahrenthold, The Washington Post
  • Ari Fleischer, former White House Press Secretary, George W. Bush
  • David Kirkpatrick, journalist and author of “The Facebook Effect: The Inside Story of the Company That Is Connecting the World”
  • Julie Pace, The Associated Press
  • Jennifer Palmieri, former White House Communications Director, President Barack Obama
  • Bob Schieffer, CBS News
  • Sean Spicer, White House Press Secretary
  • Charlie Spiering, Breitbart News
  • Brian Stelter, CNN
  • Greta Van Susteren, MSNBC
  • Cecilia Vega, ABC News
  • Glenn Thrush, The New York Times
  • Kristen Welker, NBC News
  • Michael Wolff, The Hollywood Reporter

Headline: “NRA Readies Next Attack Against The First Amendment”

This from Cydney Hargis over at Media Matters: “NRA To Launch Ads Against The ‘Anti-Freedom’ ‘Propaganda Machine’ New York Times.”

“The National Rifle Association’s news outlet NRATV announced a new “series of messages” against The New York Times that will air on the Fox News Channel beginning Monday. The NRA previewed the ad with the claim that the newspaper has ‘gone on the offensive to take away your liberties.'”

“On the April 7 edition of NRATV’s Stinchfield, host Grant Stinchfield called the Times ‘a liberal propaganda machine that is out of control,’ and claimed the newspaper has carried out an ‘assault on journalism.’ He then played a preview of a message featuring NRA’s CEO Wayne LaPierre in which LaPierre claimed the media has “weaponized the First Amendment against the Second,’ and that America “would have fallen long ago” had people placed their trust in the ‘failing American news media.'”

LoMonte to Leave SPLC & Join the Brechner Center

It was pleasure to work with Frank during his tenure as the leader at Student Press Law Center.  He was a great advocate and educator for the cause of free speech and access to information for student journalists.  He will be a tremendous asset for the Brechner Center.  Frank will bring great energy and leadership to the Center as it seeks to expand its mission. David Horowitz

Frank LoMonte

Frank LoMonte, the executive director of the Student Press Law Center, will become the next executive director for the Brechner Center, University of Florida’s center for the freedom of information.  Lomonte will leave in early August.

The Brechner Center is a non-profit educational center. Although The Brechner Center does not provide legal advice, its executive director answers general questions about libel, privacy, prior restraints, freedom of information, Florida’s Government in the Sunshine Laws, access to courts and other First Amendment issues.

The Brechner Center answers queries about media law from journalists, attorneys, and other members of the public. The Center is prepared to explain issues relating to media law, provide educational and training materials, react to current developments, and offer speakers for meetings and conferences.

First Amendment Salon Video: Liptak Interviews Abrams

Floyd Abrams & Adam Liptak

 New York Times Supreme Court correspondent Adam Liptak interviews Floyd Abrams at the Abrams Institute at Yale Law School.

Susan Gonzalez, Legal scholar speaks about why free speech matters, Yale News, April 6, 2017

Book Tour: Floyd Abrams Goes on the Road

Floyd Abrams may have to reduce the number of his billable hours given the tour for his latest book, The Soul of the First Amendment (Yale University Press, 2017).  Here are some of the venues at which Abrams will be speaking:

  1. April 30: The Newseum, Washington, D.C.
  2. May 1: Cato Institute, Washington, D.C.
  3. May 8: National Constitution Center, Philadelphia
  4. May 11: Legal Strategy Forum (hosted by Heritage Foundation), Colorado Springs, Co.
  5. June 1: Carnegie Council on Ethics & International Affairs, New York, N.Y.
  6. June 5: Temple Emanu-El Streicker Center, New York, N.Y.
  7. June 13: The Aspen Institute, Washington, D.C.
  8. August 28: Commonwealth Club of California, San Francisco, CA

Floyd Abrams ’59 Writes New Book on First Amendment, Yale Law School News, March 24, 2017

Forthcoming: Reporters Committee’s Freedom of the Press Awards Dinner

On May 23rd, the Reporters Committee for Freedom of the Press will host its 2017 Freedom of the Press Awards Dinner at the Pierre Hotel in New York City.


  • Martin Baron, Executive Editor, Washington Post
  • Kathleen Carroll, Former Senior Vice President and Executive Editor, Associated Press
  • Paul Steiger, Executive Chairman, ProPublica
  • The Media & First Amendment Practice of Davis Wright Tremaine LLP
  • Special Presentation: Remembering Gwen Ifill
  • Special Guest Speaker: David McCraw, Deputy General Counsel, New York Times

Robotica is Coming 

Coming next spring: Collins & Skover, Robotica: Speech & Artificial Intelligence (Cambridge University Press, 2018). The book (the main text of which is now complete) will include commentaries by Ryan CaloJane BambauerJames GrimmelmannBruce Johnson, and Helen Norton along with a rejoinder by the authors. Below is what is likely to be the cover of our forthcoming book.

                       cover design by Alex Lubertozzi

The Slants to Perform at Flying Dog Brewery this Sunday

This Sunday at 6.00 p.m. The First Amendment Society will host the rock group whose case is waiting to be decided by the Supreme Court — yes, The Slants. They are the all-Asian American dance-rock band (music video) whose request to trademark their name was denied by the Patent and Trademark Office. The Portland-based band will perform “in a very casual setting” — the Flying Dog Brewery’s tasting room.

 The case: Lee v. Tam (transcript of oral arguments)

New FIRE Podcasts

  • Nico Perrino interviews Sam Gedge on Campaign Finanace Laws & the First Amendment
  • Nico Perrinno Interviews Bob Corn-Revere on censorship: the ‘bastard child of technology’

FIRE Continues to Expand First Amendment Library 

New and expanded entries include:

Forthcoming Book


As movies took the country by storm in the early twentieth century, Americans argued fiercely about whether municipal or state authorities should step in to control what people could watch when they went to movie theaters, which seemed to be springing up on every corner. Many who opposed the governmental regulation of film conceded that some entity—boards populated by trusted civic leaders, for example—needed to safeguard the public good. The National Board of Review of Motion Pictures (NB), a civic group founded in New York City in 1909, emerged as a national cultural chaperon well suited to protect this emerging form of expression from state incursions.

Using the National Board’s extensive files, Monitoring the Movies offers the first full-length study of the NB and its campaign against motion-picture censorship. Jennifer Fronc traces the NB’s Progressive-era founding in New York; its evolving set of “standards” for directors, producers, municipal officers, and citizens; its “city plan,” which called on citizens to report screenings of condemned movies to local officials; and the spread of the NB’s influence into the urban South. Ultimately, Monitoring the Moviesshows how Americans grappled with the issues that arose alongside the powerful new medium of film: the extent of the right to produce and consume images and the proper scope of government control over what citizens can see and show.

New & Forthcoming Scholarly Articles

  1. Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, Harvard Law Review (forthcoming 2017)
  2. Zach Greenberg: Striking the Balance Between Academic Freedom and Transparency in Higher EducationHarvard Civil Rights-Civil Liberties Law Review (2017)
  3. Danielle Keats Citron, Extremist Speech and Compelled Conformity,  Notre Dame Law Review (forthcoming 2017)
  4. Leslie Kendrick, The ‘Speech’ in ‘Freedom of Speech‘, SSRN (March 23 2017)
  5. Eric N. Lindblom, Micah L. Berman & James T. Thrasher, FDA-Required Tobacco Product Inserts & Onserts – And the First Amendment, Food & Drug Law Journal (2017)
  6. Philip Lee, Student Protests and Academic Freedom in an Age of #Blacklivesmatter, Ohio Statet Law Journal (forthcoming 2017)
  7. Jordan Alexander Lewis, The Future of Disparagement: How Trademark Law Suppresses Freedom of Speech, SSRN (April 9, 2017)
  8. Kolby Paul Marchand, Free Speech and Signage After Reed v. Town of Gilbert: Signs of Change from the Bayou State, Southern University Law Review (forthcoming 2017)
  9. Kyle Langvardt, A Model of First Amendment Decisionmaking at a Divided Court, SSRN (March 29, 2017)
  10. Enrique Armijo, Government-Provided Internet Access, Infrastructures of Free Expression, and the Role of the State, in Mobile Technologies and Access to Knowledge (forthcoming 2018)
  11. Andrea C. Armstrong, Racial Origins of Doctrines Limiting Prisoner Protest Speech, Howard Law Journal (2016)

New & Notable Blog Post

News, Editorial, Op-eds & Blog Posts

  1. Peter Bonilla, ‘Unwanted Advances’ shows Laura Kipnis’ critiques of academic culture more relevant than ever, FIRE April 11, 2017
  2. Adam Steinbaugh, At the University of Minnesota, reports of ‘bias’ often include political speech, FIRE, April 10, 2017
  3. Eugene Volokh, Claremont McKenna statement on the shutting down of Heather Mac Donald’s talk, The Volokh Conspiracy, April 8, 2017

Today in First Amendment History: 100 Years Ago Today 

Gilbert Roe of the Free Speech League

“One week after the U.S. declared war on Germany and entered the European war, free speech advocates on this day criticized the pending Espionage Act bill in hearings before the Senate Judiciary Committee.  Attorney Harry Weinberger, representing the Free speech League, said the bill would give the president ‘too much power.’ He and others strongly objected to the section of the bill that would punish causing ‘disaffection’ in the military. Attorney Gilbert Roe pointed out that if there were genuine problems with the war effort the section would prevent people from ‘pointing out the evils and correcting them.'”

“The Espionage Act became law on June 15, 1917, and as the critics had warned, became an instrument for suppressing dissent during the war. Most notably, Eugene V. Debs, leader of the Socialist Party, was convicted under the law for a speech in Canton, Ohio, on June 16, 1918, in which he carefully did not mention the current war. He was sentenced to 10 years in prison for the speech.”

“The Free Speech League, formed on April 7, 1911, was the first free speech/civil liberties organization in the U.S. Although it handled a number of important cases in the years before the war, it essentially stopped functioning during the war. It was supplanted by the National Civil Liberties Bureau, organized on July 2, 1917, which in turn was reorganized into the American Civil Liberties Union (ACLU) on January 19, 1920.”

Statement of Gilbert Roe, Representing the Free Speech League, House Committee on the Judiciary (65th Congress), April 12, 1917 (re proposed bill “To Punish Acts of Interferference with the Foreign Relations, the Neutrality, and the Foreign Commerce of the United States”)

The Court’s 2016-2017 First Amendment Free Expression Docket

Opinions Rendered 

  1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

  1.  Expressions Hair Design v. Schneiderman (transcript here)
  2. Lee v. Tam (transcript here)
  3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

  1. Keefe v. Adams
  2. Augsburg Confession
  3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary)

Summary Disposition

  1. Independence Institute v. FEC (affirmed)

Cert. Denied

  1. Scott v. Georgia
  2. Bondi v. Dana’s Railroad Supply
  3. Bennie v. Munn
  4. Flytenow v. Federal Aviation Administration
  5. Armstrong v. Thompson
  6. Wolfson v. Concannon
  7. Dart v.
  8. NCAA v. O’Bannon
  9. Mech v. School Board of Palm Beach County
  10. Williams v. Coalition for Secular Government 
  11. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

  • Doe v. LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

  • Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Pending

  • Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Pending  

→ The Court’s next Conference is on April 13, 2017

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #148: April 10, 2017

Last Scheduled FAN, #146Upcoming Conference: “Truth, Lies and the Constitution”

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4 Responses

  1. Original Pr@nkster says:

    The framers believed that sign-language, braille, morse code, and waving white flags to signal “surrender” were all forms of “speech” protected under the freedom of speech–there were no laws upheld by the courts that required people to express themselves in vocal language (or the written word, for freedom of the press). So why would flag-burning protests not also be considered “speech”?

    • Brett Bellmore says:

      Perhaps the distinction is that these various modes of communication were general purpose; Even naval flags were capable of detailed communication. (White flags of surrender were only one of the available “words”.) Whereas, what exactly does burning a flag communicate? Can it communicate different ideas, and clearly? Can you write a sonnet in burning flags?

      It’s more of an interjection than speech, I should think.

  2. Original Pr@nkster says:

    Even if the First Amendment only protected vocal speech, the equal protection clause (disparate-impact clause) would prevent bans on expression primarily used by the blind, deaf, mute, etc.

    The term “All persons” at the beginning of the fourteenth amendment surely includes the blind, deaf, mute, etc. No written records from the founding suggest that family or friends were no longer “human” after losing their senses–if anything, such people were offered greater compassion, not none-at-all. No one was found not-guilty-of-murder because the person murdered was deemed “not a person due to an absence of the sense of sight or hearing” and therefore the ban on human murder didn’t apply.

  3. Brett Bellmore says:

    Scalia never did claim to be a particularly good or consistent originalist, though. As I recall, he specifically denied being a principled originalist in “A Matter of Interpretation”.