I agree with those who fault Justice Scalia for asking that “the electronic media . . . respect[] my First Amendment right not to speak on radio or television when I do not wish to do so.”
Scalia probably has a constitutional right not to speak on radio or television when he does not wish to do so. Congress probably can’t order him to speak about something on radio on television, except under narrow circumstances such as if it subpoenaed him to testify at a televised hearing, or if it provided by statute that Supreme Court hearings be televised (and presumably that each Justice ask at least one question). This, though, probably relates more to separation of powers and the limits on Congress’s power to order around independent judicial officials, not the First Amendment. Government employees probably can be required to speak on radio or television, at least to answer questions.
Now it’s true that a private citizen would have a presumptive First Amendment right not to speak on radio or television; the government couldn’t mandate such speech by private citizens, again outside some contexts such as compelled testimony. But this right, like other First Amendment rights, could only be violated by the government, not by the electronic media. A radio rebroadcast of a tape of Scalia’s speech wouldn’t violate or even fail to “respect” Scalia’s First Amendment rights, though it might fail to respect Scalia’s copyright in his speech, or conceivably (though I highly doubt it) Scalia’s contractual rights (I doubt this because I don’t think that announcement of this policy would create any such contractual obligation).
The one support that Scalia might have is this language from Harper & Row v. Nation Enterprises, which upheld a copyright lawsuit based on the unauthorized publication of excerpts from Gerald Ford’s then-unpublished memoirs:
Moreover, freedom of thought and expression “includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). We do not suggest this right not to speak would sanction abuse of the copyright owner?s monopoly as an instrument to suppress facts. But in the words of New York?s Chief Judge Fuld:
“The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.” Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250, 255 (1968).
Courts and commentators have recognized that copyright, and the right of first publication in particular, serve this countervailing First Amendment value.
But as I argue in my Freedom of Speech and Intellectual Property article (pp. 724-28), this analysis by the Court is mistaken; it’s inconsistent with the Court’s other cases, and would yield some highly unsound results. (And even if it is accepted on its own terms, it’s not clear to me that it would apply to the audio publication of material that’s said to hundreds of people, and licensed to be reprinted in text; recall that Harper & Row involved publication of material that was then entirely unpublished.)
Of course, I suspect that Scalia isn’t talking about his First Amendment right, but rather against what he sees as his moral right — which he wants to suggest is consistent with broader First Amendment principles — not to have the audio or video of his speech broadcast without his permission, or a right flowing from the obligations of good manners to respect a speaker’s desires in this situation. One can debate about whether such a moral or good manners right exists. But I think that calling this a “First Amendment right” is an inexact and unfortunate usage.
UPDATE: Chris Lansdown writes:
I don’t think that it’s correct to fault Scalia for claiming a legal right not to speak on radio or television, since that plainly seems not to be the case if you read the whole sentence:
The electronic media have in the past respected my First Amendment right not to speak on radio or television when I do not wish to do so, and I am sure that courtesy will continue.
He’s clearly calling respecting his “First Amendment right not to speak on radio or television” a courtesy, not asserting that it’s a legal right. This juxtaposition is quite odd, but I think that since it’s contained within the same sentence one must interpret the first half in the context of the second clause (even if they are two conjoined independent clauses). Whatever Scalia means, it can’t be implying a legally enforceable right.
If one is required to guess what Scalia meant by “First Amendment right”, I would imagine he meant that the right to silence is as much a part of the spirit of the first amendment as is the right to speak, and so when he wants to be silent, or partially silent, granting him this right is within the spirit of the First Amendment, and hence a matter of courtesy. . . .
Chris raises a fair point; perhaps I didn’t focus enough on the “courtesy” part. At the same time, the term “First Amendment right” has such a firmly legal meaning that the “courtesy” sounds more like understatement than an acknowledgment that the “First Amendment right” is really no right at all but just a matter of kindness or good manners. So I still think that the “First Amendment right” usage is unfortunate and inexact, in large part because it makes the assertion sound like a claim of legal entitlement, with the “courtesy” at the end of the sentence not materially softening the sound.
Comments are closed.