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Wednesday, Dec. 20, 2000

Now that the United States Supreme Court has put an end to Vice President Gore's bid for the White House, it is tempting to focus on the Justices' flaws. The Court, after all, participated in selecting the President in an unprecedented manner. It has accordingly drawn an unparalleled level of public scrutiny.

When we apply that scrutiny, however, it is important to avoid dwelling on irrelevancies. Justice Clarence Thomas's silence during oral arguments, for example, is an irrelevancy. It is perfectly acceptable to listen quietly to what the lawyers on either side of a case have to say on behalf of their clients.

Far less acceptable, and equally evident during the election high jinks at the Supreme Court, is the unprincipled jurisprudence of many of the Court's Justices. By way of illustration, I will focus here on Justice Scalia.

The Myth of Justice Scalia's Principled Jurisprudence

I have often heard people say that although one might disagree with Justice Scalia on his values, one must at least admit that he is consistent and principled in his positions, over the range of cases. A careful examination of his decisions, however, shows this not to be the case.

One of the principles often identified with Justice Scalia is the principle of Free Speech — the First Amendment right of a speaker to express herself, however odious and offensive the message might be. And Justice Scalia no doubt believes that he is an unbiased defender of free expression. For example, when he voted with a 5-4 majority of the Court to strike down a statute prohibiting flag desecration, he surely felt he was protecting something with which he disagreed. He likely shares little in common with those who would burn an American flag.

Though his intentions may be good, however, and though he sometimes defends speech with which he disagrees, Justice Scalia has all too often allowed his personal beliefs, particularly those regarding sexual morality, to taint and thus discredit his jurisprudence of free speech. His writings in connection with the most recent Bush v. Gore decision, to which I will return below, only serve to underscore that taint. But first, let us look at the record over the last decade.

Justice Scalia Declines to Protect Abortion Counseling and "Indecent" Speech

In 1991, Justice Scalia joined an opinion for the Court upholding a gag order that prohibited health care providers who receive Title X funding from counseling pregnant patients about the option of abortion. For the Justice (an opponent of abortion), the health care providers' free speech rights (and the corresponding rights of patients to receive complete and accurate medical information) did not carry the day.

In another case, decided in 1998, Justice Scalia wrote a concurrence in a decision upholding a "decency" criterion for funding by the National Endowment for the Arts. Though the Court construed the statute narrowly, Justice Scalia wrote separately to say that discriminating against "indecent" art did not run afoul of free speech guarantees. Indeed, he added, the Court could, and should, have construed the statute much more broadly than it did, without reservations about violating the First Amendment. And in other decisions, he has defended the constitutionality of bans against nude dancing. For purposes of these cases, the Justice's love of "decency" seemed to prevail over his commitment to free speech.

Justice Scalia Protects Cross-Burning as a Form of Expression

One might say in Justice Scalia's defense that no one can be an absolutist on free expression, particularly when it bleeds into action. Is it fair to call Justice Scalia truly unprincipled? In response to this query, consider the times when Justice Scalia did feel able to side with expression — even under circumstances that might have swayed others to draw the line.

In 1992, for example, the Court considered a hate-crime prosecution of a white minor who had burned a cross on the lawn of his black neighbors. Justice Scalia wrote an opinion for the Court in that case in which he contended that even expression not protected by the Constitution, such as cross-burning, could not be singled out for criminal penalties by virtue of its message — here, the message that a black family was unwelcome in a primarily white neighborhood.

Put another way, the First Amendment, according to Justice Scalia, would prohibit a state from distinguishing between burning incense and burning a cross on the basis of the latter's expressive content (that is, its communication of a message of racial animus). Under this logic, one might ask, could a statute narrowly prohibiting lynchings communicating the same racist message survive First Amendment scrutiny? Nothing about the opinion's reasoning suggests that it could.

Justice Scalia Protects the Expression of Anti-Gay Groups

Where else has Justice Scalia felt able to side with expression when others might have seen the merits differently? In last Term's case of Boy Scouts of America v. Dale, the U.S. Supreme Court reversed the New Jersey Supreme Court's ruling that under New Jersey Anti-discrimination law, the Boy Scouts could not expel a troop leader for being openly gay.

Did Justice Scalia side with the troop leader's ability to express himself by being "out" as gay? No. Instead, he joined the opinion of the Court stating that it was the Boy Scouts whose free speech was offended by the New Jersey law. According to that holding, individuals within an organization have a First Amendment right of expressive association that allows them to exclude whomever they wish from their association, and that right trumps any state interest in prohibiting discrimination.

Earlier, when the Supreme Court ruled that Colorado had violated the Equal Protection Clause by prohibiting localities from passing anti-discrimination laws protecting gays and lesbians, Justice Scalia dissented. By Justice Scalia's lights, then, state governments — far from having a compelling interest in preventing discrimination — appear to have an affirmative interest in preserving discrimination against gays and lesbians, people whom he described as "possess[ing] political power much greater than their numbers."

Justice Scalia Protects the Expression of Anti-Abortion Protesters

And then there is anti-abortion "speech." When it is abortion protesters yelling slurs at women patients entering a clinic that provides abortion services, then too, Justice Scalia's love of expression reemerges.

Last Term, the Supreme Court upheld a court order creating a protective "bubble" under which protesters and others were required to stay at least eight feet away from persons near a health care facility. Justice Scalia, however, dissented on free speech grounds. He also accused the Justices in the majority of nullifying the First Amendment when it stands in the way of abortion — which he calls "that highly favored practice."

The Final Test of Justice Scalia's Free Speech Beliefs: The Election

Then came the election to test Justice Scalia's commitment to the expression of ideas.

On December 8th, the Florida Supreme Court ordered that "undervoted" punch card ballots — which had registered no vote for President — would be counted by hand. The next day, the Supreme Court, by a vote of 5-4, stayed the Florida Supreme Court's directive, ordering that the recounts be stopped immediately.

For a stay of a lower court's opinion to be granted, the stay must be necessary to avoid "irreparable harm." But no such harm ever threatened to occur here. What would have happened if the recount had gone on, and the Court later held (as it in fact did hold) that the criterion for recounting violated the Equal Protection Clause? The recount simply would have had no legal effect, and Bush would still have become President.

Nevertheless, Justice Scalia concurred in the stay. Where was the "irreparable harm," according to Justice Scalia? It lay in his worry that the results of the recount might "cast[] a cloud upon what [Bush] claims to be the legitimacy of his election." Conversely, suppressing the recounts, he claimed, would help produce "election results that have the public acceptance democratic stability requires."

Thus, viewing the ballots not as legally binding votes, but simply as an expression of voters' intentions, Justice Scalia accepted the notion that such an expression would harm the perception of a Bush presidency, and that this harm was sufficient to order the recount stopped.

Yet it is a classic free speech principle that speech generally cannot be suppressed due to "expressive" harm alone — that is, due to the harm that occurs when people hear and believe its message. With narrow exceptions, including the familiar "incitement to imminent lawlessness" test, that is the law. Only, again, in this instance, Justice Scalia discarded traditional free speech tenets when the message of the speech at issue (as in the pro-abortion or pro-gay rights cases) was one with which he vociferously disagreed. This time, the message was: "Gore should be President."

The Supreme Court's actions, of course, have not only failed to remove any clouds over the legitimacy of the coming Bush administration, but they have succeeded in marring the legitimacy of the Supreme Court itself. The principle of free expression should not admit of government censorship — even in the name of heterosexuality, opposition to the right of abortion, or a presidency for the man who intends to appoint more people like Justice Antonin Scalia.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. She was a Supreme Court clerk, for Justice Harry A. Blackmun.

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