Quote of the day

An excellent and concise explanation of why the First Amendment, and freedom of speech more broadly and more generally, matters to me:

Much of the Court’s opinion is devoted to deprecating the closed mindedness of our forebears…. Closed minded they were–as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly.

Scalia, J. dissenting in United States v. Virginia

It’s taken years of following SCOTUS particularly, and the legal sphere more generally, for me to realize that of all the issues out there, freedom of speech is the one I care about most. Without it, we can’t actually argue about all the other issues that matter, persuading each other, learning from each other, and so on. It is necessary for representative democracy to be able to freely discuss everything and attempt to persuade each other, for us to have any chance at sound policy. The late Justice Scalia gets it exactly right in this quote.

(Speech implications aside: I have no immediate opinion on the legal question in the case as I only discovered it today. For the policy question — which too many people will confuse with the legal question — I would agree with the case’s outcome.)

Rest in peace, Justice Scalia. I’ll miss your First Amendment votes, from flag burning to content neutrality and forum doctrine to (especially, for the reasons noted above) political speech (if not always), among the votes you cast and opinions you wrote. Others less inclined to agree with you might choose to remember you (or at least should remember you) as the justice whose vote ultimately struck down California’s Proposition 8, even as (especially as) you considered the legal question argle-bargle. As Cass Sunstein recognized, you were “one of the most important justices ever”, and the world of law will be worse without you.

(In the spirit of freedom of speech, I generally post all comments I receive, as written. I hope to do the same for this post. But if I must, I’ll moderate excessively vitriolic comments.)


  1. Antonin Scalia was racist, bigoted and intellectually dishonest. He claimed to revere “textualism” but did no such thing. He made up opinions out of whole cloth.

    In 1987 he was one of only two justices to dissent in the case that thankfully struck down teaching Creationism in public high school science classes. Imagine how horrible the US would be if theology trumped science.

    The late Stephen Jay Gould explains the situation in detail:


    Comment by Robert — 18.02.16 @ 23:18

  2. Scalia was not racist, as he didn’t make distinctions between people on the basis of race. His opinions did reject the idea that ending discrimination on the basis of race could properly be done (by government) by discriminating in the opposite direction. I’ll cheerfully admit I don’t have much time for people who think “punching upward” makes punching okay. 🙂

    Regarding “bigoted”, meh. Nobody’s perfect. There may be opinions one could construe that way (but of course most cases never touch on these issues at all). But I’ve also seen many opinions wholly misconstrued when painted with that brush. Regardless, I’m increasingly convinced it’s a word that’s become more epithet than useful descriptor, much as “fascist”, “socialist”, (in this election cycle particularly) “establishment”, etc. have become near-useless. At a personal level I’ve heard nothing suggesting Scalia was anything but affable, friendly, and gracious. (Anecdotes from Stephen Colbert, David Axelrod, and others across the aisle suggest this was universal.) He was certainly forceful, direct, and blunt in argument, but that shows he respected antagonists enough to not pull punches when engaging with them. I’d much rather see fully-engaged argument than passive-aggressive, suppressed disrespect.

    As for “intellectually dishonest”, I can certainly point to cases I can’t reconcile as non-examples. (This as distinguished from this, this, and this, for example.) But I find those cases the exception rather than the rule, same as for all the justices.

    I don’t have the time to read up on a case I’ve heard of before, that’s only very likely to ever change in the future. Although I think there might be gradations there, that could partially assuage concerns on all sides, that might be unproblematic. And I don’t know (or, as I said, particularly care) offhand what gradations were or weren’t present in that actual situation.

    (On a lesser note: your comment is a fine example of criticism, perhaps even with some vitriol, that doesn’t exceed [or come close to exceeding] my unspecified boundary of “excessively vitriolic”. Thus far I have received no other comments on this post, unless they got Akismet-filtered into a spam bin I ignore.)

    Comment by Jeff — 20.02.16 @ 17:39

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