Supreme Court justice, ACLU chief square off over First Amendment

By The Associated Press

01.29.01

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Nadine Strossen

HONOLULU — U.S. Supreme Court Justice Antonin Scalia found common ground with a liberal adversary on the subjects of hate crime and flag-burning, but there was little agreement on much else as Scalia advocated a greater role for the democratic process on many First Amendment questions.

In a spirited, two-hour debate Jan. 27 with Nadine Strossen, national president of the American Civil Liberties Union, Scalia said democracy is diminished when "five out of nine lawyers" on the high court can construe rights not clearly spelled out in the Constitution.

"If you want new rights in a democracy, persuade the democracy," Scalia said.

He said communities should be able to decide whether to regulate stores that sell only pornography or whether to allow religious practices that conflict with the general law.

"The trouble is that God can tell you to do almost anything and all of a sudden it's protected by the free-exercise clause" of the First Amendment, Scalia said. "That's an intolerable state of affairs."

That view was challenged by Strossen, who said the framers of the Constitution never intended for speech and religious rights to be subject to majority rule.

"They had a natural-rights philosophy," she said. "We did not need the government to give us rights."

It is the government's job to secure rights citizens have when they are born, the New York Law School professor said.

However, Scalia and Strossen agreed that it is possible to enact a constitutionally permissible law allowing stiffer sentences for criminals who are motivated by racial or other bias.

"I'm not a big fan of hate-crime laws," Scalia said. "It seems to me if you're beaten up or raped or killed, it makes very little difference why you were. The crime is the crime."

But Scalia said the Constitution allows for different levels of punishment for some crimes based on intent, citing capital punishment for wartime treason versus imprisonment for the theft of information.

Strossen said hate-crime laws must be narrowly written and must have strict standards of evidence to pass constitutional muster.

Scalia, appointed to the Supreme Court by President Ronald Reagan in 1986, also sided with Strossen in opposing laws specifically banning flag-burning.

"I was the fifth vote in the flag-burning case," he said. "I will share with you the secret that I cannot stand bearded, scrubby, sandal-wearing people who go around burning the flag. It really ticks me off. Regrettably, they have a constitutional right to do that."

Returning to the subject of pornography, Strossen shot back: "There is nothing in the Constitution that says why sexually oriented expression should be protected less than flag-burning."

Nearly 1,000 people attended the Davis Levin First Amendment Conference at the Japanese Cultural Center of Hawaii in Honolulu.

The debate did not touch on last month's 5-4 Supreme Court ruling rejecting the Florida presidential ballot recount. A few dozen people outside the building protested Scalia's majority vote in that decision, some holding signs saying "American Coup: December 12, 2000."

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