Magazine article The News Media and the Law (Online)

When Five Became Four

Magazine article The News Media and the Law (Online)

When Five Became Four

Article excerpt

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. SullivanWashington. 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

* Garcetti v. Ceballos (2006) (government-employee speech)

* Morse v. Frederick (2007) (student speech)

* Harris v. Quinn (2014) (labor union fees), and in

* Citizens United v. FEC (2010) andMcCutcheon v. FEC (2014) (campaign finance).

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. …

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