Justice Scalia's generally conservative opinions on establishment of religion contrasted with his generally liberal opinions on freedom of speech, at least speech that was historically protected (exclusions were predominantly obscenity but also libel7). Curiously, he did not rely much on the founders’ views of the speech clause, as he had in connection with many of the other rights protected by the Bill of Rights. He told me that he recognized that most of his free-speech jurisprudence was not originalist. Discussed are four First Amendment cases. First, two cases of broad First Amendment applicability. Second, cases in which the government sought to punish certain types of speech that it deemed undeserving of protection based on the content of the speech, for example, “hate speech” or “fighting words.”8 Third, cases where the government sought to equate depictions of animal cruelty and violence with pornography. Fourth, cases under the Free Press and Petition Clauses. The opinions represented a broad commitment to freedom of speech.
The concept of overbreadth is part of constitutional law. In essence it means that a penal statute punished constitutionally protected as well as unprotected conduct. For example, a statute could punish all payments of cash to a government employee, which read literally would criminalize a mother's payment to her son if he was a government employee. A defendant indicted for bribery could not complain about the overbreadth of the statute unless the cash payment was from his mother. The rule is different in free-speech cases because of the concern that an overly broad statute might chill protected speech. Massachusetts v. Oakes (1989)9 involved a statute that punished anyone who permitted a nude child under eighteen to pose for a photograph. While the case implicated overbreadth because it would punish parents who took pictures of their nude infants, there was a controlling preliminary issue. After Douglas Oakes allegedly violated the statute by taking nude pictures of his fourteen-year-old stepdaughter who was attending modeling school, the state legislature amended the statute to require “lascivious intent,” which cured the overbreadth problem for the future. The question for the Court was whether it cured the overbreadth problem for prosecuting Oakes.
Four conservative Justices answered yes. “[O]verbreadth analysis is inappropriate if the statute being challenged has been amended or repealed.…Because the special concern that animates the overbreadth doctrine is no longer present after the amendment or repeal of the challenged statute, we need not extend the benefits of the doctrine to a defendant whose conduct is not protected.”10 Five Justices answered no and acquitted Oakes in an opinion by Scalia:
The overbreadth doctrine serves to protect constitutionally legitimate speech not merely ex post, that is, after the offending statute is enacted, but also ex ante, that is, when the legislature is contemplating what sort of statute to enact.…In my view, we have the power to adopt a rule of law which says that the defendant's acts were lawful because the statue that sought to prohibit them was overbroad and therefore invalid. I do not think we have the power to pursue the policy underlying that rule of law more directly and precisely, saying that we will hold the defendant criminally liable or not, depending upon whether, by the time his last appeal is exhausted, letting him off would serve to eliminate any First Amendment “chill.”11
When a municipality promulgated an ordinance that required registering and obtaining a permit to go on private property to canvass or solicit or face misdemeanor charges, Jehovah's Witnesses objected based on the First Amendment. Seven Justices struck down the ordinance as applied to the plaintiff on broad grounds in Watchtower Bible & Tract Soc. of N.Y., Inc. v. Village of Stratton (2002).12 Rehnquist alone dissented on the ground Stratton's concern over crime justified its ordinance. Scalia's concurrence rejected the ground that a person's religious objection to applying for a permit had validity. It also rejected the Court's argument that there “are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official.”13 Scalia intolerant response? “If our free-speech jurisprudence is to be determined by the predicted behavior of such crackpots, we are in a sorry state indeed.”14
Texas v. Johnson (1989),15 decided in Scalia's third Term as a Justice, generated a higher ration of ire than any First Amendment case on which he sat. Scalia wrote no opinion, but instead joined Brennan's majority opinion, with Marshall, Blackmun, and Kennedy. Involved was a conviction for burning the American flag under a Texas statute that made it a crime when “[a] person…intentionally or knowingly desecrates…a state or national flag.…For purposes of this section ‘desecrate’ means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.”16 Despite a broadly based and passionate populace that condemned the conduct, the Court majority declared the statute unconstitutional.
Brennan wrote that flag-burning was expressive conduct, and while the “government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word…[i]t may not…proscribe particular conduct because it has expressive elements.…If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas asserted “no interest in support of Johnson's conviction that is unrelated to the suppression of expression,” such as preventing breaches of the peace.17 As expected, there was no suggestion of originalist analysis in Brennan's opinion. Johnson relied on post–World War II cases that involved the wearing of black armbands to protest the war in Viet Nam,18 sit-ins by blacks in “whites only” areas to protest racial discrimination,19 and picketing regarding a wide variety of causes.20 Brennan asked whether expression was prohibited “simply because society found the idea itself offensive or disagreeable,” a bright, but fuzzy, line.21
Rehnquist wrote an over-heated dissent, in which he compared flag-burning to incinerating the Jefferson Memorial, ignoring, among other things, that the burned flag was only a copy not the original flag, the amount of property damage was de minimis, and the property was the defendant's. His opinion stressed the flag as “holding a unique position as symbol of our Nation,” dating back to the Revolution, that warrants government protection.22 Not all expressive conduct is permitted by the First Amendment, and publicly burning the flag had the potential for disturbing the peace.
Scalia's voice surfaced three years after Johnson, when he wrote for the Court in R.A.V. v. St. Paul (1992),23 another conflagration case where the igniters lacked popular support. Teenagers burned a cross on the lawn of a black family and St. Paul had charged them under a city ordinance that prohibited the display of a symbol, “including a burning cross or a Nazi swastika, which one knows or has reason to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The Minnesota Supreme Court had construed the statute to apply only to that conduct that constitutes “fighting words,” namely, “conduct that itself inflicts injury or tends to incite immediate violence.”24
Scalia's opinion held that “the ordinance is facially unconstitutional because it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”25 “[T]he government may proscribe libel, but it may not make the further content discrimination of proscribing only libel critical of the government.” While a state may prohibit obscenity, it may not prohibit only obscenity that includes an offensive political message and while a government can ban outdoor fires, it cannot punish an outdoor fire that dishonors a flag.26 “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.…The dispositive question in this case, therefore, is whether content discrimination is reasonably necessary to achieve St. Paul's compelling interests; it plainly is not.” Scalia added: “Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”27 Scalia's only nod to originalism in R.A.V. was the statement that, while “[i]ntent-based regulations are presumptively invalid,…[f]rom 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit may be derived from them is clearly outweighed by the social interest in order and morality,’” quoting Chaplinsky v. New Hampshire (1942),28 a nonoriginalist opinion.
Scalia rejected several counterarguments, including the intriguing one that since defamation, obscenity, and fighting words are not speech within the First Amendment, distinctions could be based on content. “Such a simplistic, all-or-nothing approach to First Amendment protection is at odds with common sense and with our jurisprudence as well.” The communications were obviously speech, whatever had been said about them, but they constituted speech that was not “an essential part of any exposition of ideas.” “The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”29 Scalia's reasoning closely mirrored Brennan's.30 Four Justices concurred in the result in three separate opinions, all of whom stated that the case should have been decided on the well-established ground “that the St. Paul ordinance is fatally overbroad because it criminalizes not only unprotected expression but expression protected by the First Amendment,” rather than on constitutional grounds neither presented to the state supreme court nor briefed by the parties in the Supreme Court.31
In his first Term, Scalia wrote a cryptic concurring opinion that suggested that he was willing to accept sexually explicit writing as deserving of First Amendment protection. Pope v. Illinois (1987),32 a prosecution of sellers of allegedly obscene magazines, involved the standard for judging the literary and artistic value of alleged obscenity, including whether the standard should include the ubiquitous “reasonable man.”33 Scalia voted to uphold the conviction, concluding that the various standards were nearly identical so the use of one rather than another amounted to harmless error. Bringing to mind Justice John Marshall Harlan's 1971 comment that “one man's vulgarity is another's lyric,”34 he added: “I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it. For the law courts to decide ‘What is Beauty’ is a novelty even by today's standards.”35
Twenty-four years later, Brown v. Entertainment Merchants Ass'n (2011)36 invalidated a California law imposing restrictions on violent video games sold to minors, which drew heavily on the standards applicable to obscenity, including forbidding the sale of offending games to minors unless accompanied by a parent.37 Kennedy, Ginsburg, Sotomayor, and Kagan joined Scalia's opinion striking down the statute on its face. The dominant precedent guiding the opinions was United States v. Stevens (2010,38 a case dealing with depiction of animal cruelty, which held that legislatures cannot create new categories of unprotected speech.
“No doubt a State possesses legitimate power to protect children from harm,” Scalia wrote in Brown, “but that does not include a free-floating power to restrict the ideas to which children may be exposed.…Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny – that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest.…The State's evidence is not compelling.” It does not even establish “that violent videos cause minors to act aggressively,” certainly not to a significant extent.39 Moreover, “California cannot show that the Act's restrictions meet a substantial need of parents who wish to restrict their children's access to violent video games but cannot do so.” Finally, there was no long-standing tradition in the United States of restricting children's access to depictions of violence. Violence is everywhere from movies to fairy tales to serious literature. There was no more than a passing reference to early history.
All concurring and dissenting opinions were more conservative than Scalia's. Alito, joined by Roberts, concurred in the judgment of the Court, but on the ground that the California Act was void for vagueness; it did not define “‘violent video games’ with the ‘narrow specificity’ that the Constitution demanded.” Disagreeing with striking down the statute on its face, Breyer responded by carving out a subclass that the statute could legitimately cover, namely, sales to minors under the age of seventeen of highly realistic, violent video games. Supporting parental authority and the state's independent interest in the well-being of its youth were compelling state interests. Breyer also identified scientific studies that found a connection between violent video games and aggressive behavior.40
Compared to the Freedom of Speech Clause and the Religion Clauses, core freedom of the press was tangential to the Court's efforts during Scalia's tenure. An exception was Florida Star v. B.J.F. (1989),41 where a newspaper's “Police Reports” section published the full name of a rape victim, who sued the newspaper. The Sheriff's Department had inadvertently included the name in its report. B.J.F. sued the newspaper under a Florida statute making it unlawful to publish the name of the victim of a sexual offense in “any instrument of mass communications.” An opinion by Marshall, in which Brennan, Blackmun, Stevens, and Kennedy joined, held for the newspaper. Applying the standard, “if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order,”42 the Court found no state interest of the highest order. Concurring separately, Scalia agreed: “This law has every appearance of a prohibition that society is prepared to impose upon the press but not upon itself.”43
White's dissent concluded that the majority had undervalued the wrong committed to B.J.F. Emphasizing that the right of privacy is not absolute, he nevertheless accused the Court of “obliterate[ing] one of the most noteworthy legal inventions of the 20th century: the tort of publication of private facts.…The public's right to know is subject to reasonable limitations so far as concerns the private facts of its individual members.”44 A basically conservative trio (White, Rehnquist, and O'Connor, but not Scalia) favored privacy over free speech.45
