Remembering Justice Antonin Scalia’s First Amendment legacy: Flags, crosses, and video games

The passing of U.S. Supreme Court Justice Antonin Scalia shocked the country Saturday. The conservative titan served on the bench of the nation’s highest court since 1986, earning enthusiastic esteem from the right wing and vigorous vitriol from the left. Quoting my constitutional law professor Paul R. Baier, Scalia “roared from the bench” like a “lion” with stark opinions and scathing dissents rooted in originalism.

Scalia’s approach to the law resulted in a mixed First Amendment legacy. Some of the Justice’s beliefs stunted the growth of speech freedoms, while others expanded speech rights into the 21st century.

For example, Scalia opposed cameras in the Supreme Court, refusing to allow the public to peek inside the most secretive branch of our government.[1] Scalia believed the First Amendment’s Establishment Clause permits government endorsement of religion and dismissed the principle of neutrality.[2]  Scalia cast the decisive vote in carving out an exception for First Amendment rights of students in Hazelwood[3] and voted against student speech rights again in Morse v. Frederick.[4] Scalia repudiated the actual malice standard for defamation of public officials from the seminal case New York Times Co. v. Sullivan.[5] Although not squarely a speech issue, Scalia stood fervent against civil liberties of the LGBT+ community.[6]

However, Scalia’s record contained moments of victory for First Amendment freedoms. In reflecting on the life of one of the most memorable Justices of our lifetime, here are some notable First Amendment opinions from Scalia:

Flag-burning ban infringes First Amendment – Texas v. Johnson, 491 U.S. 397 (1989).

Although Justice Brennan penned the majority opinion, Scalia’s vote in the 5-4 majority that found Texas’ flag-burning law unconstitutional under the First Amendment was crucial during the early days of his tenure on the Court. During oral arguments, Scalia challenged the Dallas County Assistant District Attorney Kathi Alyce Drew, gaining laughter from the audience by asking about the extent to which laws should protect venerated items, such as the state flower. Scalia continued to play the role of the Court’s comedian for the remainder of his Supreme Court stint.

Full opinion here.

Cross-burning ordinance unconstitutional – R.A.V. v. St. Paul, 505 U.S. 377 (1992).

Three years later, the Court confronted another heated First Amendment case. In R.A.V., the Court considered the constitutionality of a St. Paul (Minnesota) ordinance prohibiting the placing of a “symbol, object, appellation, characterization or graffiti” (including burning a cross) when “one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender . . . .” The defendant was charged under the law after making a cross out of broken chair legs and burning the cross inside the fenced yard of a family across the street. Scalia determined the ordinance was facially unconstitutional as a content-based and viewpoint-based restriction on speech.

“Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. . . . The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.”[7]

“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.”[8]

Full opinion here.

Violent video games protected under First Amendment – Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011).

Using his familiar historical approach to the law, Scalia led the Supreme Court in shielding video games under the First Amendment. In striking down a California law prohibiting sale or rental of “violent video games” to minors, the originalist found the law violated the First Amendment because:

“Like protected books, plays, and movies that preceded them, video games communicate ideas—and even social message—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”[9]

Full opinion here.

Honorable mention: Thermal-imaging is a “search” under the Fourth Amendment – Kyllo v. United States, 533 U.S. 27 (2001).

Although Kyllo is not a First Amendment case, Scalia protected another crucial civil liberty—privacy—in his majority, 5-4, opinion. In this case, the police used a thermal-imaging device to detect marijuana in the defendant’s home. Armed with this new information, the police obtained a search warrant for the defendant’s residence. Relying on the principle that the Fourth Amendment draws “a firm line at the entrance to the house,” Scalia wrote:

“Where, as here, the Government uses a device not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”[10]

Full opinion here.

Scalia’s legacy will survive in both jurisprudence and reputation. His impassioned voice will be heard for generations through oral argument recordings. But the dynamics of the Supreme Court chambers will be forever changed without the roar of the lion called Antonin Scalia.

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[1] See Josh Gerstein, Politico, Scalia: Cameras in Supreme Court would ‘mis-educate’ Americans, July 26, 2012; Jamie Schuman, Reporters Committee for Freedom of the Press, Holding out against cameras at the high court, Spring 2014.

[2] See Americans United for Separation of Church and State, Government’s God: Scalia and the Fraud of ‘Ceremonial Deism,’ February 2016; Rob Boston, Americans United for Separation of Church and State, There He Goes Again: Justice Scalia Continues Attacking Religious Neutrality, Jan. 4, 2016.

[3] Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) (holding that school officials can censor a high school sponsored newspaper when there is a reasonable educational justification and the censorship was viewpoint neutral)

[4] Morse v. Frederick, 551 U.S. 393 (2007) (ruling that school officials can prohibit students from displaying certain messages at a school sanctioned event).

[5] New York Times Co. v. Sullivan, 376 U.S. 254 (1964); See Erik Wemple, The Washington Post, Antonin Scalia hates ‘NYT v. Sullivan’, Dec. 4, 2012.

[6] See, e.g.,  Obergefell v. Hodges , 576 U.S. [  ] (2015) (J. Scalia, dissenting) (disagreeing with the majority’s finding that the Fourteenth Amendment requires a state to license same-sex marriages), United States v. Windsor, 570 U.S. [  ] (2015) (J. Scalia, dissenting), Lawrence v. Texas, 539 U.S. 558 (2003) (J. Scalia, dissenting), Romer v. Evans, 517 U.S. 620 (1996) (J. Scalia, dissenting) (comparing homosexuals to murderers, polygamists, and people who beat animals).

[7] Id. at 391.

[8] Id. at 396.

[9] Id. at 2733

[10] Id. at 40.

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