I was surprised at how hard the death of Justice Antonin Scalia hit me. The unexpected passing of the man who is almost indisputably the most important intellectual figure on the high court in the past 30 years was a shock, for certain. As a man of the right, I am certainly apprehensive about what the court will do if his replacement is a liberal in the mold of President Barack Obama’s appointees.
On a different level, though — I’m not sure if it’s deeper or more superficial, to be entirely honest — I was sad to see someone who cared for the arts as much as he did leave the stage. The stories of he and Justice Ruth Bader Ginsburg setting aside their ideological differences to enjoy an evening at the opera (or a ride on an elephant) warmed the heart of your humble narrator, who has spent so much of his writing energies arguing that we shouldn’t let politics dictate our relationships.
Scalia was not merely a patron of, and inspiration for, the arts. He was also a committed and principled defender of the arts and freedom of expression. Throughout his body of work on the high court, court watchers saw him go to bat for the protections offered by the First Amendment.
Several commentators have noted with some surprise that Scalia, for instance, authored a resounding defense of violent video games, smacking down an effort by the state of California to prohibit their sale to minors without the permission of an adult.
“Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” Scalia noted in his 7-to-2 opinion in Brown v. Entertainment Merchants Association. “That suffices to confer First Amendment protection.”
This is not to say that Scalia was himself a gamer. Far from it. He merely understood the principle behind treating art — any kind of art — as a legitimate form of expression worthy of First Amendment protection.
“Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat,” he wrote in one of his many entertaining footnotes. “But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than ‘The Divine Comedy,’ and restrictions upon them must survive strict scrutiny.”
During oral arguments for United States v. Stevens — the case in which the Supreme Court ruled 8 to 1 that efforts to ban so-called “puppy crushing” videos were unconstitutional — we saw Scalia make a similar point. “Why couldn’t Congress, persuaded by these people say, you know, you can’t have — cannot depict torture? You know, these horror films that come out around Halloween, you can’t depict that anymore. What is the difference between that and what you have done here?”
Again, the question is not one of aesthetic quality; I can’t imagine Scalia was a particularly big Eli Roth aficionado. It’s simply a question of principle, namely that the government should not be in the business of telling people what sort of speech is acceptable.
It’s why he signed on to the court’s decision in Hustler Magazine, Inc., v. Falwell that found Jerry Falwell had no grounds to sue “Hustler” for its filthy parody of him. It’s why he pointedly stated during oral arguments in the flag-burning case Texas v. Johnson that “we up to now have never allowed such an item to be declared a national symbol and to be usable symbolically only in one direction.”
And it’s why he backed overturning onerous anti-speech regulations at the heart of the Bipartisan Campaign Reform Act. I have neither the space nor the inclination to re-litigate Citizens United v. Federal Election Commission in its entirety here. All I’d like to do is remind readers that, at the end of the day, the case involved efforts by the federal government to limit the distribution and advertisement of a political documentary ahead of an election. As Scalia noted in his concurrence, such an action would have been abhorrent to the Founders.
“The (First) Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is ‘speech’ covered by the First Amendment. No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation,” he wrote.
From Mortal Kombat to torture porn to perverted parodies to political documentaries, lovers of art and the First Amendment had few more principled defenders than Antonin Scalia. I’ll miss him.