When it comes to the First Amendment, as with other parts of the Constitution and Bill of Rights, Supreme Court Justice Antonin Scalia’s credo usually goes like this: If it was good enough for 18th century America, it’s good enough for us now.
In Doe v. Reed last year, when the issue was whether the names of petition signers should be kept private, Scalia said no, pointing to Colonial-era “viva voce voting” practices – individuals voting out loud, often in the presence of candidates. In Citizens United v. Federal Election Commission, Scalia traveled back to the late 18th century for proof that corporations should enjoy the same free-speech rights as individuals. And in commercial-speech cases, Scalia has been impressed by the fact that Colonial newspapers carried advertisements as well as news stories on their front pages.
So it should come as no surprise that yesterday, Scalia again reached for the history books in the First Amendment case of Nevada Commission on Ethics v. Carrigan.