Scalia argued his view on “textualism” was the ultimate defense of the First Amendment. In March 2012, an Associated Press report said he told an audience at Wesleyan University that the Court’s early justices would be “astonished that the notion of the Constitution changes to mean whatever each successive generation would like it to mean. … In fact, it would be not much use to have a First Amendment, for example, if the freedom of speech included only what some future generation wanted it to include. That would guarantee nothing at all.”To understand why libel (and pornography) laws were untouched by the First Amendment, you have to understand the meaning, not of “is,” but of “the.” In both the First and Second Amendments, “the” has similar import. “The” RKBA was simply the right as it existed and was limited in 1788. It would strike anyone as ridiculous if I were to suggest that RKBA allows assault with a deadly weapon. Likewise “the” freedom of the press was freedom as it was enjoyed and as it was limited in 1788. You can’t legally threaten bodily harm with a deadly weapon, and you can’t legally assault someone’s reputation with a (reputationally) deadly weapon, either.That opinion didn’t prevent Scalia from harsh criticism of what is widely viewed as one of the essential court rulings protecting free speech and a free press — the 1964 decision in New York Times Co. v. Sullivan.
At the Newseum in the Aspen Institute 2011 Washington Ideas Forum, Scalia said the landmark ruling meant “you can libel public figures without liability so long as you are relying on some statement from a reliable source, whether it’s true or not.
“Now the old libel law used to be (that) you’re responsible, you say something false that harms somebody’s reputation, we don’t care if it was told to you by nine bishops, you are liable,” Scalia said. “New York Times v. Sullivan just cast that aside because the Court thought in modern society, it’d be a good idea if the press could say a lot of stuff about public figures without having to worry. And that may be correct, that may be right, but if it was right it should have been adopted by the people. It should have been debated in the New York Legislature and the New York Legislature could have said, ‘Yes, we’re going to change our libel law.’”
But in Times v. Sullivan, Scalia said the Supreme Court, under Justice Earl Warren, “… simply decided, ‘Yes, it used to be that … George Washington could sue somebody that libeled him, but we don’t think that’s a good idea anymore.’”
JUSTICE SCALIA: THE 45 WORDS — AND ORIGINAL MEANING — OF THE FIRST AMENDMENT
The right to physical safety and reputational safety are nowhere addressed explicitly in the Constitution, but the Ninth Amendment enshrines the Federalist position on the “enumeration” of rights:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.That is, the first eight amendments make explicit rights which had historically been abused by tyrants, but “enumerating” them in a bill of rights was not actually necessary. The Ninth Amendment would have covered any one of them even had they not been enumerated. The fact that those first eight amendments were unnecessary in principle did not chance the fact that politically they were necessary - and psychologically they are an ornament. They do that very well, but the real lawyer work of common law is the nuts and bolts of liberty.But notice
". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment” - New York Times Co. v. Sullivan decision, 1964how easily the Warren Court was able to manipulate our love for freedom of expression to suppress our freedom from the tyranny of journalists united under the banner of the wire services.
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