Friday, October 14, 2011

Anton Knows Original Intent and You Don't

Politicians blather and preen, they come and they go, but Supreme Court Justices are pretty much forever - as are the biases and personal neurosis they apply to their judgments.

Anton Scalia is a special case, a guy with a 170 IQ who thinks it is 270, a man with a sense of certainty that defies description. He is able to find an intellectual rationale for any of his preconceived notions including that money is an agent of free speech and that corporations have the same rights and privileges as individuals (two concepts that undermine the fundamental American Ideal of the Individual as the basic unit of democracy). 

Geoffrey Stone has written a piece describing a recent Scalia proclamation that individuals and news outlets should liable for damages when they pass along something that they later find out to be inaccurate. Little Anton, who had to know how this could stifle the bedrock notion of free speech and self expression, apparently can't help constantly having to show everyone how much smarter he is than the rest of us - even if it means envisioning the U.S. as a 3rd world banana republic. 

Imagine a country where you could be sued simply for repeating something that later turned out to be incorrect. Anton can, and there is nothing you can do about it.

Justice Scalia, Originalism and the First Amendment Geoffrey Stone

In a recent conversation at the Aspen Institute's 2011 Washington D.C.'s Ideas Forum, Justice Antonin Scalia offered some interesting observations about his theory of originalism and the meaning of the First Amendment.
During the course of the conversation, Justice Scalia apparently brought up the Supreme Court's landmark 1964 decision in New York Times v. Sullivan. The situation in Sullivan was fairly straightforward. L.B. Sullivan, a Commissioner of Montgomery, Alabama, brought a civil libel action against several black clergymen and the New York Times because a fundraising ad run by the clergymen in the Times allegedly made several inaccurate statements in its description of a civil rights protest in Montgomery. The statements, if inaccurate, did not name Sullivan specifically and were relatively trivial in context. Although Sullivan could not prove that he had suffered any actual pecuniary damages as a result of the publication, the all-white Alabama jury awarded him damages of $500,000 (remember, this is in 1964).
...When the case worked its way up to the Supreme Court of the United States, the Court unanimously held that it violated the First Amendment for the state to hold the New York Times and the clergymen liable. 
...In his conversation during the Aspen Institute program, Justice Scalia made his familiar and obviously correct point that courts should not render decisions that in effect legislate. He then went on to say that New York Times Co. v. Sullivan was such a case. He explained that "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." In other words, if the statement was inaccurate, the speaker was liable, without regard to whether the speaker reasonably believed the statement to be true. Justice Scalia found the Court's change in the law illegitimate:
...There are many things wrong with this argument, and with originalism generally, but I want to focus on one point in particular. Justice Scalia suggests that the solution to the problem in New York Times was for the New York legislature to change its libel law. But the New York legislature had absolutely nothing to do with this situation. This was a lawsuit in Alabama, decided under Alabama law by an Alabama jury. The New York legislature was completely powerless to affect the matter in any way.
...In Justice Scalia's world, the New York legislature could do nothing to protect the right of its citizens to be informed, the national government could do nothing to protect the New York Times (and all other national news outlets) from such censorship, and as a result citizens throughout the nation would have their capacity to learn and to understand their own nation squelched by the State of Alabama. The Supreme Court in New York Times quite correctly concluded that such an outcome was profoundly inconsistent with what the Framers of the First Amendment had in mind.
Read more:      Justice Scalia, Originalism and the First Amendment     by Geoffrey Stone
Read more:      The Framer's Constitution     by Geoffrey Stone