In two cases decided this term by narrow majorities, in which Scalia and Thomas dissented, the Court acted to protect free expression. In a 5-4 decision in Legal Services Corporation v. Velazquez, the Court ruled unconstitutional the restrictions in annual federal appropriations acts that since 1996 have prohibited Legal Services Corporation funding of any organization that represents clients in challenges to welfare laws. These restrictions effectively prevented Legal Services attorneys from representing indigent clients in cases involving the validity of welfare reform laws or from raising legal arguments they otherwise would have raised on behalf of welfare clients. The Court held that these restrictions constituted an impermissible restraint on private speech. Justice Scalia dissented in an opinion joined by Thomas, Rehnquist and O’Connor, taking the position that the LSC program was not a regulatory program but was, rather, a federal subsidy program; that subsidies do not directly restrict speech; and that the restrictions neither prevented anyone from speaking nor coerced anyone to change speech. If, as Scalia suggested, upholding the restrictions would mean that “fewer statutory challenges to welfare laws will be presented to the courts because of the unavailability of free legal services for that purpose,” Scalia and those who joined his dissent answered “So what?” One more justice on the Court voting like Scalia and Thomas would not only severely harm Legal Services clients, but also vastly increase government’s ability to censor any speech that it helps to fund.
In Bartnicki v. Vopper, a 6-3 majority of the Court ruled that the First Amendment protects the disclosure of illegally intercepted cell phone conversations about a matter of public concern when such disclosure is made by someone who did not participate in the interception, even though he or she knew or had reason to know that the interception was unlawful. In so ruling, the Court determined that with respect to the discussion of a matter of public concern, a speaker’s privacy interest in his or her conversations is outweighed by the First Amendment interest in the publication of matters of public importance. Chief Justice Rehnquist and Justices Scalia and Thomas dissented.
Late last term, Scalia and Thomas were divided in one First Amendment case, United States v. Playboy Entertainment Group, Inc. In that case, the Court struck down a federal law that unnecessarily restricted cablecasts in an effort to stop “signal bleed” of restricted, sexually oriented programming. The case was litigated on the assumption that the programming at issue was not obscene, and the majority found the restriction to be a direct, content-based assault on protected speech. Justice Thomas concurred in the Court’s opinion on the assumption that the programming was not obscene, in which case he agreed that the programming constituted protected speech. Justice Scalia, however, not only joined a dissent written by Justice Breyer that would have upheld the statute based on a compelling governmental interest in protecting children from the programming in question, but also wrote a separate dissent. In that dissent, Scalia opined that Congress was free to enact the statute because, in his view, even though the programming might not be obscene, it was marketed as sex and for the purposes of its prurient appeal. Thus, according to Scalia, the statute regulated “the business of obscenity” although the speech in question was not obscene. Such a view, if adopted by a majority on the Court, would dramatically increase the power of government to regulate speech.