Scalia leaves complex legacy of First Amendment rulings — and a consequential empty chair

When Associate Justice Antonin Scalia was found dead Feb. 13, the Supreme Court lost its last remaining link to the 1988 Hazelwood decision, which diminished students’ First Amendment rights in school-sponsored curricular publications.

Scalia’s decisive fifth vote in that 5-3 ruling — a 4-4 tie would have affirmed a lower-court ruling in favor of the students — clouds the justice’s legacy as a defender of free-speech rights. But in his 30-year tenure on the Court, Scalia participated in literally hundreds of First Amendment cases, and his record defies easy categorization. 

Following Scalia’s death, commentators widely remarked on his ideological predictability as the leading proponent of an “originalist” (or as Scalia preferred, “textualist”) understanding of the Constitution. “He was very consistent on his interpretations and his rulings. And that’s what we need,” former Florida Gov. Jeb Bush told an interviewer during a stop on his presidential campaign.

Consistency was not, however, always the hallmark of Scalia’s First Amendment jurisprudence. He was a reliable vote in favor of individual liberty in cases such as R.A.V. v. City of St. Paul, which struck down a viewpoint-based ordinance that criminalized displays of race-, gender- or religious-based hatred. And he was especially protective of the ability to display religious symbols, writing the majority opinion in a 1995 case entitling the Ku Klux Klan to erect a cross on the Ohio statehouse plaza during Christmastime over the state’s objection that hosting the display would violate Establishment Clause prohibitions against endorsing religion.

But when it came to young people, Scalia subordinated free-speech concerns to the interests of government regulators. His vote tipped the balance in Hazelwood School District v. Kuhlmeier, which created a new category of less-protected speech in the setting of “curricular” school activities — a standard based on a case decided a year earlier in the context of prison inmates.

In the Court’s most recent student-speech case, Morse v. Frederick, Scalia again fully joined a majority opinion carving out a free-speech exception in the setting of pro-drug advocacy at a “school sanctioned” event.

In neither of these cases were the majority rulings moored to any established constitutional doctrine; they were pragmatic workarounds of constitutional principle by judges bent on reaching a desired outcome, exactly the kind of results-driven jurisprudence that (in other settings) Scalia scornfully derided.

Yet in 2011, Scalia authored the majority opinion in Brown v. Entertainment Merchants Association striking down a California statute prohibiting the sale of violent video games. He wrote (with citations and parenthetical references omitted):

Minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. … No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed. 

A cynic might suspect that Scalia and the conservatives who joined him in the 7-2 vote were more concerned about the rights of businesses to sell their wares without fear of prosecution than about the rights of young people to consume entertainment. Still, the principle set forth in Brown — that protecting children against exposure to hurtful speech is not a compelling interest justifying departure from established First Amendment standards — has the potential to resurface in a pending case with great consequence for the safety of young people to speak their minds on social media.

This Friday, Feb. 19, the justices are scheduled (though Scalia’s death may understandably upset the agenda) to confer on whether to accept the case of Bell v. Itawamba County School District, the appeal of a Mississippi high-school rapper suspended for a graphic YouTube video in which he called out two coaches at his school for flirting with female students. Taylor Bell’s case presents an opportunity to answer how heavily schools may regulate students’ online speech created at home on personal time, a recurring question perplexing lower courts.

The math has not appreciably changed for the advocates. It took five votes to overrule the Fifth Circuit U.S. Court of Appeals’ unfavorable ruling before, and it will still take five votes with a depleted bench.  

Justice Clarence Thomas, alone (and yes, consistent) in denying the existence of First Amendment rights in schools, is unpersuadable, and one suspects the same is true of Chief Justice John Roberts, author of the majority opinion in Morse. Their votes predictably will go the school’s way.

That leaves Justices Anthony Kennedy and Samuel Alito, who co-authored an encouragingly nuanced concurring opinion in the Morse case indicating well-placed skepticism in entrusting schools with 24-7 good behavior authority over their students. In the opinion, Alito wrote that the First Amendment could be compromised in the school context only because of the unique need to maintain safety during school events, but that school punitive authority could not justifiably follow students home to the same degree:

Outside of school, parents can attempt to protect their children in many ways and may take steps to monitor and exercise control over the persons with whom their children associate. Similarly, students, when not in school, may be able to avoid threatening individuals and situations. 

There is no predicting how Scalia might have voted, though it would be nice to think that the justice, who frequently used harsh and at times outright insulting language to make a point in ways that others regarded as injudicious, would have identified with the high school senior who resorted to profane and violent imagery in challenging wrongdoing by school authorities. A principled conservative could scarcely countenance the use of government punitive authority to silence citizen whistleblowing. Let’s choose to think the best of the late Mr. Justice, and hope for an outcome for Taylor Bell that honors the best of Scalia’s First Amendment purism without surrendering to Hazelwood paternalism.