Scalia and Free Speech

by Michael O. Allen on April 11, 2008

I was wondering if you might indulge me and consider what Scalia is saying in this post:

Both Scalia and his teenage interlocutor seemed aware of some “Road to Damascus” conversion that Scalia had gone through on Free Speech.

“I have the capacity to admit I made a mistake,” Scalia started out in answering the young man’s question before choosing a different tack.

First, what is the mistake on Free Speech that Scalia is referring to?

Second, Scalia’s conversion on Free Speech seems to contain a trap that I cannot quite put my fingers on.

Is it just his “Originalist” (static) take on the Constitution? Or, are there other flaws in his thinking (as he articulated them here) on this issue?

The conceit, of course, is that Scalia is an “originalist.” Bush v. Gore would, at least, seem to indicate otherwise.

If you have RealPlayer, here’s a link to Scalia’s talk.


As I’d suspected, Scalia’s “originalist” sentiments here is a complete red-herring. People for the American Way cite chapter and verse ways that Scalia and his Toto, Clarence Thomas, would defile the Constitution and subvert Free Speech, if given the slightest chance.

In his March 14, 2005 Center for Individual Freedom (CFIF) speech, clarified that he is not a “strict constructionist” but, rather, an “originalist,” joking that people bring that up as he had some fatal disease (Justice Scalia, when did you first realize you’re an originalist, or, as he mordantly put it: “When did you first start eating human flesh?”)

There is, of course, the embarassing episode of Scalia keeping the media out of an event where he was being honored with a Free Speech award.

Update II:

The Washington Post had a rather superficial take on Scalia’s sitdown with the students but had a fuller story on Scalia, who’s not shy, being very visible at the moment.

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