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Liberal Site Accuses Justice Scalia of Admitting He ‘Abhors’ Free Speech — Is That True?

Dec. 7, 2012 2:51pm Mytheos Holt

Supreme Court Justice Antonin Scalia is renowned in many circles for holding a consistent viewpoint on interpretation of the Constitution according to the principles laid out specifically by the Founding Fathers. But according to ThinkProgress, Justice Scalia may not be quite on board with at least one of those principles – namely, free speech.

As evidence, the liberal blog quotes a recent interview, in which Scalia claims to “abhor” the landmark libel case New York Times v Sullivan, which holds that the only way a news source can be held to account for libel is if it publishes information either knowing it’s false, or without caring whether it’s false. In other words, it’s not sufficient for a news source simply to get something wrong. They have to have intentionally disregarded the truth. Here’s the full clip of Scalia’s reasons for disliking the decision:

And here’s what ThinkProgress has to say:

Indeed, nothing highlights the danger of a different legal regime more than the facts of the New York Times case themselves. Civil rights advocates ran an ad in the New York Times that includes a number of trivial factual errors, such as claiming Dr. Martin Luther King, Jr. had been arrested seven times when in fact he at only been arrested four times when the ad ran. Based on these minor errors, an Alabama court ordered the New York Times and the civil rights leaders to pay $500,000 in a transparent effort to shut down speech critical of Jim Crow — a practice which was very common in the segregationist south. So New York Times v. Sullivan did not simply protect journalism generally, it ended the apartheid states’ practice of deliberately intimidating people who report on civil rights by awarding massive libel awards to segregationists.[...]

Scalia’s professed love of democracy is admirable, but the truth is that Scalia only believes in the democratic process when democracy does what he wants it to do. He was one of the five justices who voted to give the presidency to George W. Bush, and he voted to strike down the Affordable Care Act based on reasoning that, in the words of a leading conservative judge, had no basis “in either the text of the Constitution or Supreme Court precedent.”

So are they right to claim Scalia dislikes free speech? Hardly.

To begin with, Scalia’s argument — as stated in the video — is not based on a nebulous concept of “democracy.” It is an argument about what the historical record says about the Founders’ opinions on free speech. ThinkProgress’ blog entry is notable insofar as it does not contest his understanding of that historical record, it simply ignores it, defending New York Times v Sullivan as a good case purely on the basis of its effects on policy. That, incidentally, is not a question Scalia disputes (“That may well be a good system and the people of New York state could have adopted that by law”), though he does believe it is irrelevant to a question of interpreting what the Constitution means, as opposed to what judges might like it to mean.

Secondly, Scalia’s argument about “democracy” does not pertain to democracy at the national level, but at the state level, since the First Amendment unquestionably protects against a nationwide libel regime imposed by Congress (it explicitly says “Congress shall make no law…abridging the freedom of speech, or of the press”). And for the most part, Scalia’s decisions have reflected this understanding of the states’ powers under the Constitution. Yet ThinkProgress doesn’t notice this distinction, because it conflates issues of state power with issues of federal power in its attempt to paint Scalia as an undemocratic judge.

In short, ThinkProgress has taken a statement that has nothing to do with Scalia’s belief about the benefits of free speech, and everything to do with his disagreements about a particular form of legal interpretation, and pretended it shows that he “abhors” free speech.

A cynical observer might find ThinkProgress’ attack on Scalia ironic, since in the course of defending the right to print unintentionally false statements, they have quite arguably misrepresented his position.

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Comments (46)

The Third Archon
Posted on December 9, 2012 at 2:46am
“LIBERAL SITE ACCUSES JUSTICE SCALIA OF ADMITTING HE ‘ABHORS’ FREE SPEECH — IS THAT TRUE?”
Scalia may be a lot of things–a simpleminded, myopic, aloof bastard of a justice. But abhorrent of free speech, he is not. New York Times v. Sullivan is a decision interpreting the effect of the 1st Amendment (more accurately the freedom of the press than the free speech clause, but pretty close) upon the burden of proof for the tort of defamation. The question was whether negligence was sufficient for press institutions to be held liable for false publications that were damaging to a plaintiff’s reputation, or whether a higher burden of proof was imposed by the 1st Amendment. The U.S. Supreme Court held that latter. Take it for what you will.

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- Ghandi was a Republican
  Posted on December 12, 2012 at 5:25pm
  It needs to address alinsky radicals and endless intentional malicious defamation of anyone who prefers America over some communist ideal. Alinsky is soo illegal it should be punishable up to life in prison. Some cases death penalty. Obama is a very good example. Why he and Soros weren’t thrown in prison decades ago defies logic. michelle, pelosi, Ayers and dorn, probably the obama daughters soon enough (what possible hope could there be for them, sadly enough).
  
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Ballot_Box_Revolution
Posted on December 8, 2012 at 1:29am
What he is saying is people mold society not the government…which i agree with… you have a right to be who you are but if you are not accepted by the norm, that is just the nature of things…there will always be a norm….even if the norm is to be different….the one wearing the one trying to be the same as someone else will be the outcast/un-normal….

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The_Cabrito_Goat
Posted on December 7, 2012 at 9:59pm
Like any joke, it’s all in the timing.

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charles116
Posted on December 7, 2012 at 6:46pm
Don’t force me to pay for your medical needs by going to ER for stuff YOUR doctor should be treating.
What don’t you apples and kumquat rubes understand?
An ER for that is the most expensive way to treat things.
Why it’s downright SOCIALISM!

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- DadRocked
  Posted on December 7, 2012 at 10:06pm
  SOCIALISM IS GOOD FOR US…
  because our government says so…
  BARF
  
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- Atilla
  Posted on December 9, 2012 at 2:16pm
  Definition of E.R. is, I believe, emergency room. In 1964 to 1967 or so when i was working as an x ray tech the average ER did 33% of non emergency care in ER’s for zip. Zip statnds for deadbeats. Correctomondo. I should never have to pay for someone else’s medical care unles an emergency. Operative word emergency. I should also never have to pay for anyone’s car insurance, heath insurance, house insurance, Obama phones, TV’s, or food. Don’t work equals don’t eat. I really could care less. Redistribute your own money and leave mine alone. Want compassion. Go to church.
  
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Larry E
Posted on December 7, 2012 at 6:46pm
Liberals all LOVE freedom of speech and all other of our God given rights. Well, except for when they don’t like them or agree with them. I’m waiting for Obama’s “free speech czar” to decide that any speech that he or Glorious Leader doesn’t like or that is not complementary to him will be banned. They’ll do that after they get total control of the Supreme Court I’ll bet, right soon afterwards.

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rangerrebew
Posted on December 7, 2012 at 5:07pm
I believe this liberal web site just like I believed Romney hadn’t paid taxes in 10 and he killed a woman. I believed that Benghazi was caused by a video, Bile Clinton didn’t have sex with that woman, and the Civil War was caused Republicans who wanted to maintain slavery. If a liberal’s mouth is moving, he/she is lying.

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- Pantloadian
  Posted on December 8, 2012 at 9:32am
  I believe that Sadam had WMDs, that Rumsfeld knew where they were, that Cheney never said the WMDS “were pretty much confirmed”, that cutting taxes increases tax revenue, that trickle down economics works, that tax cuts for the rich creates more jobs, that Obama stole the election, that Rush Limbaugh respects women, that Sean Hannity will get waterboarded for charity, that Ann Coulter regrets the deaths of 0/11, that Rupert Murdoch respects the privacy of individuals – if a conservative’s lips are moving, they are lying.
  
  Your turn.
  
  Report this comment
schroeder123
Posted on December 7, 2012 at 4:56pm
This guy needs to ousted.

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Chet Hempstead
Posted on December 7, 2012 at 4:35pm
Wait a minute, he doesn’t like the decision because he thinks it’s a state issue? Free speech is a state issue? There may be some limits to the extent to which the Fourteenth Amendment extends the restraints of the Bill of Rights to the acts of state and local governments, but anyone so boneheaded that he thinks states still have the power to make laws abridging the freedom of speech, or of the press, shouldn’t even be a lawyer, let alone a Supreme Court Justice.

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- RIGHT_WHERE_IT_HURTS
  Posted on December 7, 2012 at 5:03pm
  You shouldn’t even be posting your drivel here, Chet. Yet here you are. If enough States stick together, their rights supercede the fed.
  
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jessieH
Posted on December 7, 2012 at 4:33pm
sounds like George Soros is telling his lackies to “isolate & villify” Scalia.

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Cibolo
Posted on December 7, 2012 at 4:31pm
When are people going to learn THEY ARE ALL BAD!

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thegreatcarnac
Posted on December 7, 2012 at 4:22pm
Pray for the health of the conservatives on the court.

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Ghandi was a Republican
Posted on December 7, 2012 at 3:49pm
For those that are confused about ‘left’ and ‘right’ : The Constitution is the smack dab center. There in fact is no such thing as “right”, let alone far right. It is a myth the alinsky radicals use to label conservatives (Smack dab in the center) as some kind of radica (to the right of THEM)l. THAT is how radically left these loons are. They demonize anything that leads toward the Constitution relative to their far left wacko perspective.

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Ghandi was a Republican
Posted on December 7, 2012 at 3:41pm
If alinsky radicals are accusing YOU of something, you can bet the farm it;s something high and foremost on their current agenda. It’s preemptive finger pointing so they can say– “you too”
Like a progressive alisnky form of “smelt it, dealt it”

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Charles_Almon
Posted on December 7, 2012 at 3:34pm
I like Justice Scalia. He’s a good man.

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ResistSocialism
Posted on December 7, 2012 at 3:34pm
does it matter

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charles116
Posted on December 7, 2012 at 3:25pm
Yada yada judges are only ACTIVIST judge when they lean to the left.
Scalia is a joke. Though not as much as Thomas.
This Supreme Court is held in this lowest regard, ever

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- progressiveslayer
  Posted on December 7, 2012 at 3:36pm
  The court shouldn’t be leaning left or right they should rule within the confines of the constitution and that healthcare law is clearly unconstitutional. The government can force you to buy a product? If you don’t you will be fined and or jailed? WTF is this America or Amerika?
  
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- JACKTHETOAD
  Posted on December 7, 2012 at 4:14pm
  It wouldn’t surprise me one bit. They’re all going belly-up now.
  
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- charles116
  Posted on December 7, 2012 at 4:32pm
  You’re ‘forced’ to buy car insurance.
  Next.
  
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- progressiveslayer
  Posted on December 7, 2012 at 4:44pm
  Sorry Charlie apples and oranges
  
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- RJJinGadsden
  Posted on December 7, 2012 at 4:57pm
  CHARLES116, Right you are about auto insurance. But as PROGRESSIVESLAYER mentioned, you are comparing apples to oranges. One chooses to own an automobile, just as one chooses whether to drive or not. Once born, you really don’t have a choice under the requirements of 0bamacare.
  
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- charles116
  Posted on December 7, 2012 at 6:43pm
  When you go to an ER because you don’t have insurance YOU are sticking it to me and other taxpayers. hell-O
  
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- progressiveslayer
  Posted on December 7, 2012 at 7:06pm
  Charels116 That’s where the system is flawed because the government shouldn’t be involved with healthcare for the indigent,private charities should handle it then we don’t have the question of taxpayer money being involved.
  
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- Pantloadian
  Posted on December 8, 2012 at 9:39am
  PRONGPAYER . . . Not “fined” but “taxed” . . . heh heh heh . . . either way it’s here to stay. Don’t fight it. sit on it and spin on it and love i t till it hurts. Cuz you ain’t seen nothing yet. Single payer here we come. And it’s about time.
  
  Hosannah! Hosannah! Glory be to God. thank you Jesus, dear Lord and savior!
  
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charles116
Posted on December 7, 2012 at 3:20pm
Scallion is lucky Thomas is on the bench.
Or else he’d be the worst most corrupt political judge in the court’s history.

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- 00100111
  Posted on December 7, 2012 at 3:35pm
  Derp derp derpty derp.
  
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- Anonymous T. Irrelevant
  Posted on December 7, 2012 at 3:55pm
  Nah, I think the Ninth Circuit Court of Appeals holds that record.
  
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- RJJinGadsden
  Posted on December 7, 2012 at 4:59pm
  Isn’t that actually better known as The Ninth Circus Court?
  
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Anonymous T. Irrelevant
Posted on December 7, 2012 at 3:20pm
Methinks a group called “ThinkProgress” will always try to twist the words of a conservative.

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- rangerrebew
  Posted on December 7, 2012 at 5:02pm
  You mean the ninth circus court, don’t you?
  
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JohnGaltCalling
Posted on December 7, 2012 at 3:17pm
Someone needs an editor.

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progressiveslayer
Posted on December 7, 2012 at 3:14pm
ThinkProgress is just another group of progressive dirt bags going after a conservative justice,no news here. They misrepresent conservatives views on a daily basis,that’s what they get paid to do. Justice Scalia was correct on the health care law it was unconstitutional but Roberts didn’t want to be locked out all the cocktail parties so he sided with the progs. When it fully kicks in it’ll bankrupt us and set medicine back a century,rationing will be the order of the day and claims will be denied routinely.Our health care system will be on par with Cuba’s or N.Koreas,not the health care the ruling class gets I mean what the serfs get.It’ll be the same here the ruling class will have state of the art care at little or no cost and us serfs will have VA healthcare for all. Barry also has more time now to stack the court with progressive nut jobs who believe the government should have an ever expanding role in our lives to dictate that we must purchase health care or be fined or imprisoned if we don’t.
Welcome to the fundamentally transformed Amerika.

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- Winedude
  Posted on December 7, 2012 at 4:06pm
  Hey PrOgressiveSlayer: If your aren’t happy here, and from all of the posts I’ve seen you aren’t, GTFO!!! It’s funny that you’ve taken a nom-de-plume that has your favorite (see capitalized) letters buried within your name, you sad little toad.
  
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- progressiveslayer
  Posted on December 7, 2012 at 4:26pm
  Nah I won’t be going anywhere it’s progressive pukes like you who’ll be leaving by the millions,you just don’t realize it yet.
  
  Report this comment
Snowleopard {gallery of cat folks}
Posted on December 7, 2012 at 3:06pm
Okay, liberal group called “ThinkProgress” and anyone has to wonder why they are so confused on the matter of State v Federal laws?

Recall, they are a liberal group, and as with most liberals, they seem to hold to the ideal that freedom comes alone from the Federal government and not the Constitution.

If these attacks continue, expect the Democrats to move on Scalia to try and force him from the SCOTUS, so Obama can forever stack the deck.

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- progressiveslayer
  Posted on December 7, 2012 at 3:17pm
  That’s his plan to stack the court,if one conservative justice resigns or dies Barry will install a progressive ie communist POS to finish off the constitution once and for all.
  
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- Pantloadian
  Posted on December 8, 2012 at 9:35am
  Not if but when. SCOTUS will soon be in the hands of liberals. Hosannah! Hosannah!
  
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Too_Far_Gone
Posted on December 7, 2012 at 2:59pm
Then leave the USA you freak ..

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Fubared
Posted on December 7, 2012 at 2:58pm
I stepped on some think progress and it had kernels in it.

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- Winedude
  Posted on December 7, 2012 at 4:10pm
  Funny thing…same thing happened to me when I was crossing a street and some fubared was laying there in the sidewalk.
  
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- Pantloadian
  Posted on December 8, 2012 at 9:33am
  Yeah, corny that FUBARED.
  
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