Some ‘Mystified’ by Award to Scalia for Free Speech

Supreme Court Justice Antonin Scalia was lauded by a Cleveland club Wednesday as a champion of free speech. But before he spoke to the lunch crowd on his views of the U.S. Constitution, he insisted that television and radio reporters leave the room.

The City Club of Cleveland gives its annual Citadel of Free Speech award to a “distinguished American” who has contributed significantly to “the preservation of the 1st Amendment.”

This year’s award cited Scalia’s 1989 vote in a 5-4 ruling that struck down the laws against flag-burning and his 1992 opinion that struck down a city law against cross-burning.

Scalia is the most talkative, but least seen, of the nine Supreme Court justices. Although he speaks often at law schools and other venues, he refuses to allow TV or audio recordings. If an organization refuses to go along with his demand, Scalia refuses to appear.

“I understand the irony, but the fact is we made the agreement,” said James H. Foster, executive director of the City Club of Cleveland. “I think the award was appropriate. He’s been consistent.”

Foster also was struck by the irony of having TV reporters and camera crews converge on the luncheon. “Usually, I’m trying to get them to cover our speakers, but the news directors say, ‘We have a big accident on the interstate to cover,’ ” he said.

Although the cable network C-SPAN regularly broadcasts speeches by top government officials, Scalia has proved a constant frustration.

“Every time we ask, the answer is always no. And there is never an explanation,” said vice president Terry Murphy. “We don’t have this problem with any other Supreme Court justice. We have even covered panel discussions and the screen goes blank when he begins to speak.”

Scalia’s exclusionary rule doesn’t apply to print reporters.

While free-speech experts weren’t surprised to hear he had banned TV cameras, some said they were surprised to hear he’d won a 1st Amendment award.

“I’m mystified by that. He is not a person I would consider to be champion of free expression,” said Jane Kirtley, a University of Minnesota law professor.

“He has a mixed record,” said professor Robert M. O’Neil, who heads the Thomas Jefferson Center for Free Expression at the University of Virginia. Scalia has voted to strike down limits on campaign contributions, but to uphold a ban on doctors in federal clinics from advising patients about abortion, he said.

Last year, Scalia dissented when the court struck down a law against computer-generated child pornography. He also wrote a ruling for a 5-4 majority that struck down state bans on judges taking stands on issues during election campaigns. In the case before the court, a Republican candidate for the Minnesota Supreme Court had been sanctioned for proclaiming his antiabortion views.

“He is in the middle of the pack on the current court on free-speech issues,” said UCLA law professor Eugene Volokh, who tracks voting patterns. “If I had to name a justice who broadly supports protection for speech, I would say Justice [Anthony M.] Kennedy, and then Justices [David H.] Souter and [Clarence] Thomas,” he said.

“With Scalia, it’s a matter of expectations,” he added. Scalia, he said, benefits from the assumption that conservatives will vote against free speech.

During Wednesday’s luncheon, Scalia spoke about one of his favorite topics: “originalism” -- his belief that the Constitution should be interpreted based on its original meaning in 1787.

He delivers the same speech over and over. But, as he has told friends, it remains fresh for those who have not seen it on TV.