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.”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 conundrum was that the omission of a bill of rights in the original constitution was intentional - for the reason that although things like freedom of the press and the right to keep and bear arms were established rights in the pubic consciousness, the full and exact extent of the rights of the people was a question of common law, nowhere comprehensively codified. How to formulate such a comprehensive list and gain consensus for the notion that all the rights of the people were preserved?
The answer found in the Bill of Rights is twofold:
But notice the wording of the First Amendment WRT freedom of the press: 1A does not refer simply to “freedom of the press” but to “the freedom of the press.” Scalia noted that freedom of the existed at the time of the composition of the Constitution - and so did the right to sue for compensation for libel.
Had the First Amendment referred to " freedom of the press” in the abstract, it would arguably have extinguished both the right of the people to sue for libel and the rights of governments to enforce anti pornography laws. And that would have been controversial - could have been the poison pill which would have subverted the entire Bill of Rights project to solidify consensus around the new Constitution. Instead 1A refers to “the” freedom - freedom within limits - of the press as traditionally understood.
The conclusion, Scalia asserted, is that the First Amendment was crafted to not touch the law of libel. And that in asserting that
". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment”Justice William Brennan and the entire Warren Court erred in Sullivan. The Sullivan decision comes from the position that “the press” is weak and beleaguered. The reality is that, because it functionally is a cartel, “the press” is the core of the Establishment. As such, “the press” has exploited Sullivan to prevent the truth from prevailing over lies. The press reaction to the Kavanaugh hearing certainly should have told SCOTUS that.