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Liberal Site Accuses Justice Scalia of Admitting He 'Abhors' Free Speech -- Is That True?

FILE - In this March 8, 2012 file phoo, Supreme Court Justice Antonin Scalia speaks at Wesleyan University in Middletown, Conn. Scalia drew unusually critical attention during this past Supreme Court term for comments he made in court and in his writing that seemed to some more political than judicial.Credit: AP

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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