Picking nits: Justice Scalia, Heller & the First Amendment

Friday, June 27, 2008

Life is a bundle of mistakes. I don’t mean that as a grand existential proposition. No, I simply mean that we all make mistakes — some (like me) more than others. Still, even we mistake-prone types occasionally pick a nit or two. So here is a nit I just picked from part II-E of Justice Antonin Scalia’s majority opinion in District of Columbia et al. v. Heller, decided June 26. At one point in that opinion there is this assertion:

“This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) … .” (emphasis added)

Now, of course, Near v. Minnesota was a press case. There, the Court held a section of a Minnesota law to be unconstitutional as “an infringement of the liberty of the press guaranteed by the Fourteenth Amendment.”

It may be argued that when Justice Scalia wrote “speech” he meant to use the term in a broad sense (the precise text of the First Amendment notwithstanding) to include freedom of the press. But even granting that, Near was not the “first” time the Court held a state law to violate a law implicating freedom of expression.

Before Near, there was Stromberg v. California. There, the Court declared that the “conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech.” Therein, it ruled that the “first clause of the [anti-red flag] statute being invalid upon its face, the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside.” [See generally Kermit Hall, editor, The Oxford Companion to the Supreme Court (1992), p. 845: Stromberg “was the first ruling in which a majority of the Court extended the Fourteenth Amendment to include a protection of First Amendment substance”; and Elder Witt, editor, Guide to the U.S. Supreme Court (CQ Pres, 1990), p. 337: in Stromberg “the Court for the first time struck down a state law as violating freedom of speech.”); Harry Kalven Jr., A Worthy Tradition (Harper & Row, 1988), p. 167 (same); and Christopher Tomlins, The United States Supreme Court (Houghton Mifflin, 2005), p. 240 (same).]

To be sure, there was an even earlier controversy wherein the Court did sustain a free-speech claim in a state case, though on simple due-process grounds: Fiske v. Kansas (1927). The issue in Fiske was “whether the Syndicalism Act as applied in this case is repugnant to the due process clause of the Fourteenth Amendment.” The Court held that “the Act is an arbitrary and unreasonable exercise of the police power of the State, unwarrantably infringing the liberty of the defendant in violation of the due process clause of the Fourteenth Amendment.” [See, generally, David Rabban, Free Speech in its Forgotten Years (Cambridge University Press, 1997), p. 374, noting the limited due-process character of the case’s holding.]

Mistakes on this topic are not uncommon, even in Supreme Court opinions. For example, Justice Byron White did not appreciate in the importance of precision in this area, as evidenced by his 1968 opinion for the Court in Duncan v. Louisiana. For in that case he cited Fiske for the proposition that the due-process clause of the 14th Amendment incorporates the “rights of speech, press, and religion covered by the First Amendment.”

As I said, we all make mistakes, including those who wear black robes and those of us who make it our business to offer unsolicited critiques of their words. In this age of digital wonder, it is possible, however, to correct the text before it is forever frozen in print form. Hence, in the spirit of constructive revision and in the exercise of my First Amendment rights, I respectfully petition Justice Scalia to change the above-quoted passage to read:

“This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, Stromberg v. California, 283 U. S. 359 (1931) … .”

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