Posner on Scalia and Garner’s Reading Law II: Originalism and Freedom of Speech

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.