Antonin Scalia, Defender of Free Speech?

Surprising as it may be I'm starting to warm to Justice Scalia. Per the NYT here's an interesting snippet from this morning's oral arguments in Schwarzenegger v. Entertainment Merchants Association:

"What's a deviant violent video game?" asked Justice Antonin Scalia, who was the law's most vocal opponent on Tuesday. "As opposed to what? A normal violent video game?"

Good question... how do you propose to regulate something that you can't even meaningfully define? In a similar vein, when I was rereading the transcript of oral arguments in Citizens United, I noticed this exchange between him and then Solicitor General Kagan:

GENERAL KAGAN: It is still true that BCRA 203, which is the only statute involved in this case, does not apply to books or anything other than broadcast; 441b does, on its face, apply to other media. And we took what the Court -- what the Court's -- the Court's own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully, and the government's view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context.

And I should say that the FEC has never applied 441b in that context. So for 60 years a book has never been at issue.

JUSTICE SCALIA: What happened to the overbreadth doctrine? I mean, I thought our doctrine in the Fourth Amendment is if you write it too broadly, we are not going to pare it back to the point where it's constitutional. If it's overbroad, it's invalid. What has happened to that. ¹

You know, if you'd asked me about Scalia's stance vis-a-vis free speech I'd have assumed that he was a lukewarm advocate at best. But here he is, in both cases, arguing against sweeping, badly-written laws that criminalize legitimate speech. Good for him; maybe he's not the devil after all. His approach is certainly preferable to Kagan's "Well, we'd never to that" or Breyer's suggestion that we use "common sense".

As an interesting side note, for people who argue that Alito is a Scalia clone, it looks like the two of them got into during arguments:

"What Justice Scalia wants to know," Justice Alito said, "is what James Madision thought about video games."

"No," Justice Scalia responded, "I want to know what James Madison thought about violence."

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1 http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-205%5BReargued%5D.pdf, p. 65, lines 2 - 21.