Scalia on Civil Rights

Flag-burning is anathema, but protected as free speech

Justice Scalia [made a] statement to law students in Illinois. “I never slept better than the night I voted in the flag-burning case,” he told the students in the Land of Lincoln. Justice Scalia was telling the students he knew deep down that he had voted honestly. He had faithfully interpreted the Constitution as he conscientiously saw it, as opposed to reading his personal or political views of what was right and just into the Constitution. Flag-burning was anathema to Justice Scalia the person. But his oath was to the law, including the higher law of the Constitution. In Justice Scalia’s view, the First Amendment’s free-speech provision protects unpopular expressions of opinion. Communications of popular views obviously require little if any protection from the law. It was the unpopular voice, the radical expression of viewpoint, that needed protection against the will of society.

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