September 18, 2004

I Heart Scalia

by PG

Apropos some recent discussion both online and off about Justice Scalia's jurisprudence, I wanted to review my personal favorite: his vote with the majority in the 5-4 Texas v. Johnson decision. Scalia did not voice a concurrence at the time, though I think his sentiments about the Constitutional necessity of reversing a flag-burner's conviction were similar to Kennedy's. Since then, Scalia has said, "I would have been delighted to throw Mr. Johnson in jail. Unfortunately, as I understand the First Amendment, I couldn't do it."

Texas v. Johnson is a case that I think demonstrates Scalia's textualist tendencies more than any originalist ones. There's little basis for assuming that the First Amendment was intended to protect burning the American flag, but because such an action is clearly expressive conduct, intended to make a political statement, it must not be restricted. It makes for an interesting contrast with Virginia v. Black, wherein Scalia voted with the majority to maintain a state ban on cross-burning.

September 18, 2004 05:29 PM | TrackBack

Having sex on the steps of the Capitol as a 'make love not war' protest is clearly expressive conduct, intended to make a political statement.

We prohibit this, not because of the message itself, but purely because the method of communicating the message causes offence.

Whether the destruction of a flag that symbolizes what many Americans and their parents and grandparents have fought or died for, is more or less offensive than people having sex in public, is surely a matter for our elected representatives.

Posted by: Nigel Kearney at September 19, 2004 12:22 AM

Some would argue there should be no obscenity exception to the First Amendment. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70 (1973) (Douglas, J., dissenting).

In adopting the First Amendment, the framers chose not to leave deciding what speech is acceptable to the majoritarian process.

Posted by: Craig at September 19, 2004 12:52 AM


Not that a blog-comments section is really the place to have a substantive legal debate, but the difference between public nudity bans and flag-burning bans is that the former signal out conduct for some reason *besides* what it expresses (see Barnes v. Glen Theatre). Of course, whether Barnes survives Lawrence is a really interesting question. (Ditto Osborne).

Posted by: Will Baude at September 19, 2004 02:24 AM

Having sex on the steps of the Capitol as a 'make love not war' protest is clearly expressive conduct, intended to make a political statement.
We prohibit this, not because of the message itself, but purely because the method of communicating the message causes offence.

Nigel (a name we don't see often enough on US blogs :-), that would be a "time, place, manner" restriction, wouldn't it? Such restrictions have a very strong judicial backing; marching in the streets while chanting and holding up signs regarding the government is about clearly First-Amendment protected as one can get, yet people can be arrested for doing so without a permit.

If one wishes to express the sentiment "make love, not war" by having sex, presumably one could do so without getting arrested by covering up the R-rated bits, making sure that no minors were present and doing it in a place where one would not be obstructing traffic of any kind. One might even be able to get a permit for it... will have to check into that ;-)

The Texas statute at issue in Johnson, however, categorically banned burning a "venerated object," including "a state or national flag." (This language is so broad, it would include burning the flags of nations hostile toward the U.S. Also, the "public monument" bit probably covered Ozzy's 1982 descration of the Alamo.) It did not say that one could burn the flag on one's own property, or make any other such permission. That is a violation of the First Amendment.

The Constitution allows the government to make loads of TPM restrictions, but not prohibit expressive conduct because the sentiment expressed is what offends people. Read part III of Brennan's majority opinion for a better and more sober explanation of what I mean. One bans flag-burning not because one is worried about emitting pollutants, or for another content-neutral reason, but because the sentiment expressed is what bothers people. One bans public sex because other people's doing it is icky, no matter how supportive one is of the intended expression.

Posted by: PG at September 19, 2004 02:38 AM

It took me far too long to type that.

Will, I have a very idiosyncratic view of Lawrence, but I think most people would agree that it wouldn't do anything to help Glen Theatre. From what I understand, that case was about public nudity, while Lawrence is about private sodomy. We can still prosecute the hell out of public sodomizers, but we have to leave the private ones alone, just as we've left the private nudists alone for some time now.

I find the public/ private distinction very important. It's part of the reason why I see Lawrence as providing little help in the same-sex marriage debate. Sex is private and not really anyone else's business; marriage is public and very much other people's business insofar as one wishes to have certain rights and responsibilities attached therein respected.

Posted by: PG at September 19, 2004 02:46 AM

PG; Excellent posts. I've often thought that famous quote should actually read, "I can't define obscenity, but I know icky when I see it."

Posted by: Mojo at September 19, 2004 03:34 AM

To many a non-smoker, it is icky when she is confronted with a public smoker, especially at the entrance of a public (or private) building. But to the public smoker, it is not icky and may be the result of an addiction and under current rules she cannot engage in smoking in her office, which is not public. So engaging in sex on the steps of a public building may not be icky to the participant(s). Remember Prohibition and results of a Constitutional mandate against intoxicating beverages. Would a prohibition against flag burning stop flag burning or result in more flag burning? Sex and flag burning may not be reconcilable in construing the First Amendment. But so what? So many other SCOTUS decisions are irreconcilable. By the way, how many incidents of flag burning in public take place each year?

Posted by: Shag from Brookline at September 19, 2004 07:30 AM


It's worth re-reading Scalia's concurrence in Barnes if you haven't. The dancing at issue was in a club, and Scalia argues inter alia that the government may criminalize nudity even if there is nobody present who is offended by it. (He makes a famous comment about thousands of nudists getting together to waive their genitals at one another in the Hoosierdome.)

This question wasn't *quite* at issue in Barnes but it is a fascinating question whether the state may now criminalize nudity in a place other than the home, but where all people present consent to the nudity (which will cover the vast majority of strip clubs.)

Also an intriguing separate question is whether the Lawrence rationale will apply to sodomy between *three* consenting parties, or whether the Court will hold that two is the magic number.

Posted by: Will Baude at September 19, 2004 10:44 AM

We have this same debate in New Zealand at the moment with two relevant exceptions:

1) Only public flag-burning is banned
2) There is no supreme law such as the U.S. Constitution with a free speech clause

A private ban is silly but kind of irrelevant unless your neighbour is really out to get you. So I don't think the TPM issue really gets to the heart of the matter.

I'm still not convinced that public flag burning should be allowed. The ban is content neutral. If you see someone burning a flag, you don't even know what their specific complaint is unless they also have a sign or it is done in the context of a wider protest.

The flag burner can shout out their message, put it on a placard and wave it around, or print it on flyers and hand them out. Every other message can be communicated in the same manner.

So I think the ban is independent of the message being expressed.

I also think that flag burning is just as 'icky' as public nudity, or at least that is open to legislatures to make that determination.

Posted by: Nigel Kearney at September 19, 2004 06:01 PM

Will: Lawrence v. Texas makes a point of distinguishing sodomy from prostitution in that prostitution is a commercial activity. Strip clubs are also commercial activity. I can't see how Lawrence could overrule Glen Theater without also granting a constitutional right to prostitution. I strongly believe that Lawrence should protect prostitution, but there is little chance of that happening.

Posted by: Xavier at September 19, 2004 06:24 PM

It doesn't suffice to point out that prostitution is commercial and that the sodomy in lawrence was not. You have to take it one step further, and say that because prostitution is commercial activity, there are other rationale reasons to regulate it (be they public-health, or fear of exploitation, or whatever). Okay, fine.

But in Barnes, the statute wasn't one that was aimed at commercial nude dancing-- it was simply a public nudity statute of the ordinary variety that was being *applied* to nude dancing. So again, to regulate expressive conduct like that we have to apply intermediate scrutiny, which means we need a substantial government interest in banning it. Disease is out, since nude dancers don't transmit disease. Because of the First Amendment, any argument about the untoward message that nude dancing expresses is out. Because of Lawrence, any argument that nude dancing is simply immoral and contrary to local standards is out. Now it's *possible* that some substantial and substantially tailored justification about secondary effects and markets could be raised, but I'm having a hard time seeing what it would be.

And even if there *were* such a justification, that would only apply to certain varieties of commercial nudity, it wouldn't apply to most applications of a public nudity statute, which is intriguing. I'm particularly interested in Scalia's hypothetical about the 60,000 adults waving their genitals at one another in the Hoosierdome. Post Lawrence, who (besides the owners of the Hoosierdome) could prohibit this?

(Remember: A *video* of a nude person dancing is entitled to full first amendment protection when shown in a private club. So there has to be some reason, not barred by Lawrence or the First Amendment, that a state wishes to criminalize people acting out the real thing.)

Posted by: Will Baude at September 19, 2004 09:02 PM

I have never burned a flag. The day that flag burning becomes illegal, I will burn a flag in protest.

Posted by: flag burning at December 4, 2004 05:27 PM
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