Justice Scalia's Approach to Free Speech
Justice Antonin Scalia's originalist approach to the Constitution faced challenges regarding the First Amendment. His respect for precedent alongside his originalism shaped his thinking on free speech issues.
In Texas v. Johnson (1989), Scalia voted to protect flag burning as free speech, despite personal distaste. He backed deregulation of corporate political spending in Citizens United v. FEC (2010), arguing corporations deserved First Amendment protections.
Scalia's rulings showed a balance between originalist devotion and established precedents. He often checked Congress and state legislatures when he felt they clashed with the Constitution's original meaning. His view on traditional public forums as crucial for free speech echoed 18th century values of open political discourse.
While resisting expanded judicial power, Scalia emphasized free speech protections even for speech he disagreed with personally. His legacy lies in marrying originalism with precedent on First Amendment issues.

Challenges of Originalism in First Amendment Cases
Originalism faces difficulties with the First Amendment's brief text. Defining exactly what the Framers meant by "freedom of speech" is challenging, especially for modern issues like hate speech or digital privacy.
The amendment's brevity leaves ambiguity about what counts as protected speech. Interpreting 18th century intentions for contemporary issues proves complex. Societal evolution also poses challenges, as seen in shifting interpretations of racial segregation's constitutionality.
Corporate personhood debates, like in Citizens United, highlight tensions between textual interpretations and social consequences. Legal scholars note the lack of clear founding intentions on free speech issues.
Some justices, like Amy Coney Barrett, caution against over-relying on fragmented historical records for modern rulings. Others, like Elena Kagan, warn against misinterpreting past practices at the expense of current realities.
Originalism in First Amendment cases requires balancing historical meaning with enduring precedents, often leading to ongoing debates over proper interpretations.

Justice Thomas and the New York Times v. Sullivan Decision
Justice Clarence Thomas has questioned the landmark New York Times v. Sullivan decision. This 1964 ruling made it difficult for public figures to win libel cases without proving "actual malice."1
Thomas argues the decision lacks grounding in the Constitution's original meaning. He contends the First Amendment text doesn't support Sullivan's expansive protections for the press against libel suits from public figures.
The "actual malice" standard, Thomas notes, was a modern judicial creation rather than a historical concept. Before Sullivan, defamation laws were mainly state-level issues.
Potential impacts of overturning Sullivan:
- A more cautious media landscape
- Potential impact on investigative journalism
- Changes in public discourse
- Possible self-censorship
- Weakening of democracy's watchdogs
Thomas sees reconsidering Sullivan as restoring balance between free speech and reputation rights. He aims to realign libel laws with what he views as authentic First Amendment principles.
His stance challenges the status quo, proposing to recast First Amendment interpretation on what he considers a more historically accurate foundation.

Originalism vs. Living Constitutionalism in Free Speech
Originalism and Living Constitutionalism are two competing legal theories in interpreting the Constitution, particularly the First Amendment. Originalism adheres to the original public meaning of the Constitution's text, while Living Constitutionalism argues for adapting interpretation to societal changes.
Texas v. Johnson (1989) illustrates this divide. Justice Scalia, an originalist, affirmed flag burning as protected speech, arguing the Founders valued even obnoxious speech. Living constitutionalists agreed, viewing flag burning as modern protest symbolism.
Citizens United v. FEC (2010) saw originalists extend First Amendment rights to corporations, while living constitutionalists worried about corporate influence drowning out individual voices.
In New York Times v. Sullivan (1964), living constitutionalists supported protecting media from libel claims by public figures without proof of "actual malice." Justice Thomas, an originalist, viewed this as distorting the founders' intent.
Modern issues like hate speech and digital privacy further highlight the divide. Originalists seek historical definitions, while living constitutionalists argue for adapting to contemporary needs.
- Originalism risks: Impracticality in applying 18th-century frameworks to 21st-century realities
- Living constitutionalism risks: Being overly malleable to current social pressures
Justices Gorsuch and Barrett represent evolving originalist approaches, balancing textual fidelity with pragmatism.
Justice Barrett's Perspective on Historical Interpretation
Justice Amy Coney Barrett's approach to originalism blends historical rigor with pragmatism. She values historical context but applies skepticism to ensure it's not overextended.
In Fulton v. City of Philadelphia (2021), Barrett noted the historical record's limitations regarding religious exemptions from general laws. She advocated for cautious interpretation rather than over-reliance on history.
Barrett's concurrence in Samia v. United States (2022) emphasized the importance of balancing historical practices with contemporary relevance in interpreting the Confrontation Clause.
In Vidal v. Elster (2023), she directly challenged Justice Thomas's historical justification for upholding a trademark restriction, arguing for a more balanced approach considering both historical principles and modern jurisprudence.
"Barrett's method acknowledges the Founders' broad intentions while recognizing the vast differences between their world and ours. She aims to solve today's challenges with intelligent reverence for the past, without being constrained by it."
This balanced approach is particularly relevant for First Amendment issues in the digital age, where historical precedents may not directly apply. Barrett's perspective seeks to honor both past intentions and present realities in constitutional interpretation.

Justice Scalia's legacy in free speech demonstrates his commitment to originalism, even when it led to unexpected decisions. His approach balancing historical fidelity and precedent underscores the First Amendment's importance in protecting freedoms. Scalia's method serves as a guide for interpreting and applying these principles, emphasizing the Constitution's original meaning as a crucial reference in our legal system.