Continuing my commentary on Judge Posner's critique of Scalia and Garner, I now move to Posner’s discussion of Scalia, originalism, and freedom of speech:
So,
in a preemptive defense against accusations that textual originalism is
political, the book gives examples of liberal decisions that Scalia has
written or joined . . . In United States v. Eichman,
for example, he voted to hold a federal statute forbidding the burning
of the American flag unconstitutional, and it was certainly a vote
against his ideological grain. But it is a curious example for a textual
originalist to give. The relevant constitutional provision—“Congress
shall make no law abridging … the freedom of speech”—does not mention
non-verbal forms of political protest, and Scalia and Garner insist that
legal terms be given their original meaning lest the intent of the
legislators or the constitution-makers be subverted by unforeseen
linguistic changes. . . . That approach is inconsistent with
interpreting “freedom of speech” to include freedom to burn flags, since
the eighteenth-century concept of freedom of speech was much narrower
than the modern concept, and burning cloth is not a modern technological
innovation. According to William Blackstone, whom Scalia and Garner
treat as an authority on American law at the time of the Constitution,
freedom of speech forbids censorship in the sense of prohibiting speech
in advance, but does not prohibit punishment after the fact of speech
determined by a jury to be blasphemous, obscene, or seditious. And so an
understanding of free speech that embraces flag burning is exceedingly
unoriginalist. It is the product of freewheeling Supreme Court decisions
within the last century.
Judge Posner has a plausible
interpretation of Freedom of Speech here, but he is much too confident
about it, and consequently, his criticism of Scalia and Garner here is
wide of the mark. It is certainly possible, as Judge Posner suggests,
that freedom of speech does not include the symbolic act of burning a
flag. But recent work by First Amendment expert Eugene Volokh argues
persuasively that symbolic acts may have been covered by the language
“the freedom of speech, or of the press.”
In the abstract to his paper published in the Georgetown Law Journal, Volokh writes:
People
often argue that symbolic expression – especially flag burning – isn't
really "speech" or "press," and that the Court's decisions protecting
symbolic expression are thus illegitimate.
But
it turns out that the original meaning of the First Amendment likely
includes symbolic expression. Speech restrictions of the Framing era
routinely treated symbolic expression the same as literal "speech" and
"press." Constitutional speech protections of that era did so as well,
though the evidence on this is slimmer. And the drafting history of the
phrase "the freedom of speech, or of the press," coupled with the views
of leading commentators from the early 1800s, suggests that the First
Amendment's text was understood as protecting "publishing," a term that
at the time covered communication of symbolic expression and not just
printing. Though the Court has never relied on this evidence, even
originalists ought to accept the Court's bottom line conclusion that the
First Amendment covers symbolic expression.
Volokh actually cites to Posner’s views on the subject, asserting that Posner is wrong about the original meaning.
I
don’t mean to argue that Volokh is necessarily right and Posner wrong.
(For those interested, I lean towards Volokh on this, even though I
originally had something like Posner's view.) The original meaning of
the First Amendment is a difficult issue, and much more work needs to be
done in this area. But Posner is simply mistaken that it is clear that
flag burning is unprotected by the First Amendment.
(Cross Posted at the Liberty Law Blog)
Posted at 7:47 AM