the calb report is funded by a grant from the ethics and excellence in journalism Foundation from the national Press Club in Washington DC this is the calb report with Marvin [Applause] [Music] Cal hello and welcome to the National Press Club and to another edition of the calb report I'm Marvin calb and our program tonight 45 words a conversation about the First Amendment with Supreme Court Justices Anthony Scalia and Ruth Bader Ginsburg it would be an honor obviously to have one Supreme Court justice as my guest but to have two is indeed a very special privilege especially these two who generally represent contrasting opinions on the court one liberal the other conservative and yet they are great friends who dine together travel together love going to the Opera together in fact they inspired a new opera called of all things scal Ginsburg they are like the old days in this Capital when political differences would not stop a good friendship from flourishing Justice Scalia is the longest serving Justice on today's supreme court appointed by President Ronald Reagan in 1986 he's called an originalist meaning he believes that the constitution ought to be interpreted more or less as the founding fathers meant for it to be interpreted you want change he says change the legislature change the law his job is to interpret the law Justice Ginsburg was appointed to the Supreme Court by President Bill Clinton in 1993 her view is that the constitution is what has been called a living document meaning it changes as Society changes one linked to the other tradition and precedent matter of course but they do not necessarily determine her legal judgment both justices despite this difference between them have devoted their lives to the law to teaching to democracy and to Freedom we're going to discuss freedom of the press but let's start with what the concept of freedom means its origin its meaning at the time of the American Revolution and its meaning in today's America I've always been fascinated by the fact that the first commandment of the Ten Commandments in the Bible and the first amendment in the Constitution both stress the central importance of freedom the first commandment saying I the Lord thy God who brought thee forth out of Egypt out of the house of bondage and thou shalt have no other God before me out of bondage to what if not Freedom the first amendment guarantees us freedom of religion of speech or of the press of the right peaceably to assemble to petition our government for a redress of grievances Justice Scalia in your view is there a link between the first commandment and the First Amendment did one possibly Inspire the other oh I doubt it okay I think uh our constitution was inspired by the traditions of the common law and I think uh what our framers meant by the freedom of speech for example was that freedom of speech which was the birthright of Englishmen at the at the time um I I don't think it had anything to do with Moses uh there's I I think what Freedom meant at the time was the absence of constraint the absence of coercion so freedom of religion for example meant that you you could not be constrained to uh contribute to the support of a church that you didn't believe in you could not be disabled from from holding certain public offices because of your religion the absence of coercion and I think it it it was the same for freedom of speech and Justice Ginsburg your view Marin this is the one question you told us you might ask us I was puzzled by it because as I read the Ten Commandments the first four of them are not about Freedom they're about humans obligations to God so Thou shalt have no other God before me no CRA graven images keep the Sabbath holy everything obligations that people owe to the almighty but I also mention to you that your question is comes at just the right season because this is Passover and the passov is indeed a celebration of the liberation of a people and there are many words in the hagada that Celebrate Freedom so I would pick the Passover service rather than the stern first four Commandments as advancing the idea of freedom well I knew I'd be wrong but I mean I knew that to start with but you thought you'd be wrong on the law not on theology no but what I would like to get at is really what your sense is that the people who wrote the Constitution had in their minds when they talked about Freedom now you mentioned common law common law was not explicit about Freedom many different interpretations were there and what I'm trying to get at is before we get into the specifics of freedom of the press I would like to know what the concept meant in your understanding well I don't think the common law was that diverse as as far as uh what every aspect of uh Freedom consisted of the freedom of speech for example it was very clear that that did not include the freedom to liel that you could be subject to a lawsuit for for Lial and uh that that type of coercion was not considered uh incompatible with the freedom of speech uh now some aspects of it I suppose were were more vague but but some things were pretty clear and Justice Ginsburg the concept of freedom is very prominently featured in the Constitution it's right there in the in the First Amendment and the writer Tom Payne had a simple explanation he wrote it would be strange indeed if so Celestial and artical as Freedom should not be highly rated so so it does seem to me and I'll get back to this again and again I think that if you're going to feature the concept of Freedom right up there at the top you had to have had something in your head about the importance of freedom to what it is that you were doing at that time which was beginning to build a democracy there's a point Justice Scalia made in his opening remark he said he sees this first amendment as protection against constraint government constraint and there I think our expression of the first amendment is quite different from for example the expression in the Declaration of the Rights of Man the great French doct this first amendment is saying hands off government it says doesn't say everyone shall have the right to speak freely that's what the Declaration of the right right of man says everyone shall have the right to speak freely not at all this says Congress shall make no law abridging the freedom of speech or of the press so it's it's directed to government and it says government hands off these rights already exist and you must not touch them John Stewart mil I'm sorry please I'm it it should not be painted as the foundation of the American democracy this concept of Freedom don't forget that the Bill of Rights was an afterthought it was not what they debated about in Philadelphia in 1787 now a couple of the states that ratified the Constitution uh made it clear that they expected there to be a Bill of Rights added but it was added in 1791 on the proposal of the first Congress when what they thought would would preserve a free Society was the structure of the government that's what they debated about in 1787 and if you think that's false just look around the world every every tinhorn dictator in the world today has a Bill of Rights it isn't the Bill of Rights that uh that that produces Freedom it's it's the structure of government that that prevents anybody from seizing all the power once that happens you you you you ignore the Bill of Rights so uh you know keep keep your eye on the ball structure is uh structure is Destiny the eye on the ball being to keep your eye on the structure of the government well our structure is so different from that of most of the world there are very few countries for example that have a bamal legislature a genuine one even including England they don't have a real bamal House of Lords can't do anything I can make the comment pass the Bill a second time and and when they pass it a second time it becomes law uh there are very few countries none of the Parliamentary countries that have a separately elected president the chief executive of in in in all the countries of Europe is the tool of the parliament there's never any serious disagreement between them when there is they kick him out they have a NOC confidence vote and have an election and appoint a new Tool uh I mean we are so different from the rest of the world and it is that that has more than anything else preserved our liberties and uh you wouldn't want to live in most of the countries of the world that have a Bill of Rights which guarantees freedom of speech and of the press you wouldn't want to live there I I have to dis disagree with my colleague in that respect glad that you can do it I can first I don't think that the rest of the world is regarding our legislature at the current moment as a model to be followed [Music] and and second however it was understood in the beginning yes the structure of government was to protect our liberties but there was always the idea of Rights think of our first great document the Declaration of Independence also it is true that the great protections that the Press now has came rather late the First Amendment be was developed in a serious way around the time of the first world war it began MH so the freedom that's enjoyed today the freedom to speak and to write was not a big ticket item in the Supreme Court until rather late well it wasn't a big ticket item uh mostly because until the middle of the 20th century believe believe it the middle of the 20th century it was not thought that the Bill of Rights applied to the states it was only a limitation on what the federal government could do not a limitation on what the states could do that that was that's why we never had uh you know until the middle of the 20th century these cases about whether you can have a a crash in the uh in the city square is it okay if you have a minora next to it maybe Santa Claus on top we we didn't have any of those silly cases it was only only uh when the the Bill of Rights was was imposed upon the states that uh that we began to have them and so a lot of the restrictions on speech that uh you know that that that would be imposed by States would not have been thought to violate our Bill of Rights maybe the state's Bill of Rights but not ours but I'm wondering at the time that the structure of government was set up plus 200 years ago what is it that the founding fathers had in mind when they thought about freedom and one definition Advanced by John Stewart Mill I found very compelling but I don't know whether that's what they had in mind he spoke about absolute freedom of opinion and sentiment on all subjects practical as speculative scientific moral or theological and I'm wondering if that is what Madison Monroe had in mind at that time or whether they had a more narrow vision of freedom justice Ginsburg I wouldn't call The Vision narrow but there are no absolute rights even though if you read the first amendment it does sound that way it says Congress shall pass no law no law but of course there are laws that congress can pass so the the idea of an absolute right I don't know any right that doesn't have limitations even at that time in the minds of the founding yes I think so explain why in the First Amendment after listing the phrase freedom of speech the founding fathers found it necessary or wanted to add four crucially important words or of the press freedom of the press is what they were talking about but why did they add that phrase was it necessary Justice Galia I think uh it's a natural addition all it means is the freedom to speak and to write it wasn't it wasn't referring to the institutional press the guy that run around with a fedora hat with a a sticker in it that says press that that that was uh I'm not sure that uh that they even referred to the institutional press in those days it mean meant the freedom to to to speak and to publish and that and that Clause has been interpreted not to give any special prerogatives to the institutional press it gives prerogatives to anybody who has a xerox machine what do you mean institutional press forgive me what what does that mean I I mean those organizations whose uh whose business is writing and Publishing NBC CBS you I like that when idea that we didn't take from England was the office of the censor who censored books before they were published and that I think is part of putting in this protection of the press and we have never had in the United States government an off Office of the censor which plague people in England and on the ENT think of the think of verie and having to put his Opera plots oh you have to bring Opera into it don't you I knew I knew you were going to do that were there was it understood that there were limitations on the press back then was it understood that there were limitations well yes yes on on speech and and on on oral speech and written speech both I I told you Lial Lial laws were one thing yes but what what about the Press at that time what were they thinking about at that time I don't know that there were any special rules applicable to the press the Press did not have to get permission of a sensor to publish okay but neither did anybody else and and the Press anoid is some very important figures in our history like Thomas Jefferson yes indeed and it's interesting that Jefferson before he became president spoke very highly of the press but while he was president spoke about it as a polluted area and you couldn't believe a thing in any newspaper but how it survived one thing that epitomizes for me the importance of freedom of speech is in the ballot for America the right to speak my mind out that's America MH to meh yeah I think if you had to pick and you probably shouldn't have to but if you had to pick one Freedom that was uh that that is the most essential to the uh functioning of a democracy it has to be freedom of speech because democracy means persuading one another and uh and then ultimately voting in the majority the majority rules you you can't run such a system if uh if if there is a musling of uh one point of view so it's a fundamental freedom in a democracy much more necessary in a democracy than in any other system of government I guess you can run an effective monarchy without freedom of speech I don't think you can run an effective democracy without it but on this matter of press Freedom John Adams wrote that mankind cannot now be governed without it nor at present with it and it seems that the idea of a free press has always been a problem for a succession of American presidents but in a broader sense do you feel we could have endured as a democracy from then to now without a free press what do you think Justice kper I don't think so I think the Press has p played a tremendously important role as Watchdog over what the government is doing and that keeps the government from getting too far out of line because they will be in in the Limelight so yes there are all kinds of excesses in the Press too but we have to put up with that I think given the alternative Justice Scalia you want to come in on that issue no I agree with that of course that it's hard to keep the freedom of the press because there are many people who don't like what the Press is publishing and there was a cartoon around the time just after the Revolutionary War and it shows a Tory being caued off by the police and the caption is liberty of speech to those who speak the speech of Liberty so the right to speak against government against what is the preva in view of society is tremendously important it's interesting well including the right to speak against democracy I mean don't forget that some of the biggest fights are where WEA we free speech included includes includes freedom to speak against freedom of speech or or against democracy and and it's it's plausible that it doesn't but of course we we have rejected that view uh Communists were were entitled to say uh this democratic system does not work let's get rid of it um yeah it took a while for that idea to take because there were laws against did indeed Anarchy uh sedition syndicalism it it takes us perhaps I think to the 1964 ruling of the Supreme Court on the New York Times versus Sullivan which is certainly called a landmark decision and you spoke earlier about the importance of liel um at that time and in in this particular ruling very specific regulations that's the wrong word but uh concepts are written into this ruling and I'd like to just read what Justice Brennan has said because I think it deserves to be quoted as often as possible public discussion is a political Duty and it must be quote uninhibited robust and wide open and may well include vehement CTIC and sometimes unpleasantly sharp attacks on government and public officials and you were mentioning this in a sense a moment ago and I'm wondering uh justice Scalia if this kind of an issue were brought before the court today at that time in 1964 I believe the Court's ruling was a 9 nothing it was a unanimous vote what would happen today I don't recall what whether is was unanimous I'm I'm not sure it was it was it was n nothing but I stand to be corrected even so it was wrong it was wrong uh the issue is is not whether it's a good idea to let the institutional I'm sorry to let anybody what what New York Times versus Sullivan holds is that if you are a public figure and it's been a matter of some doubt what it takes to become a public figure but it certainly any politician is a public figure if you are a public figure you cannot sue somebody for Lial unless you can prove that the effectively that the person knew it was a lie right so long as he heard from somebody uh you know it makes it very difficult for a public figure to win a liable suit I think George Washington I think Thomas Jefferson I think think the framers would have been appalled at the notion that they could be libeled with impunity and when the Supreme Court came out with that decision it was revising the Constitution now it may be a very good idea to set up a system that way and New York State could have revised its liable laws by by popular vote to say if you liable a public figure it's okay unless it's malicious but New York State didn't do that it was it was nine lawyers who decided that that's what the Constitution ought to mean even though it had never meant that and that's essentially the difference between Ruth and me concerning a living Constitution she she thinks that's all right and I don't think it's all right the situation didn't exist in 1787 or 1791 that the court confronted in times against Sullivan the history of times against Sullivan it was a sheriff who said he was libeled in an in an advertisement in the New York Times it was in the midst of the Civil Rights yes era where Lial laws um could be used as a way of squelching the people who were asserting their freedom so I think that times against Sullivan is is a decision of major significance now I will say that the lawyer who argued that case for the New York Times Herbert Wexler a great constitutional law scholar when it's story is told when he told salsburg we won uh we won unanimous ly salsberg response was a little hesitant he said it's great for the New York Times but what about all those other papers that don't have our high high standards but I think that the that times against Sullivan is now well accepted um and I quite disagree with my my colleague that I I suspect that if the founding fathers were around to see what life was like in America in the 1960s they would have agreed with that so you would have voted for it oh God yes she would have voted for it come on come on Mr C I will mention but I won't I won't say anything more about it because this is a case we're going to hear next next week I think a state has passed a law that says Thou shalt not make false statements in a political campaign against any candidate any ballot initiative no false statements in elections the question that the court will face is is that statute prohibiting false statements in political campaigns is that constitutional what are we going to expect on that well no I a decision by the end of June okay well there there was another decision and I don't remember where Justice Scalia was but it was the alvare Alvarez case the the man who lied about having the Medal of Honor oh yes yes what it was it called something valid uh Stolen Valor Act The Stolen Valor Act before we get into the um that and the subject of digital democracy which I want to spend a few minutes on I'd like to take a moment now to remind our radio television and Internet viewers and listeners that this is the calb report I'm Marvin calb and I'm discussing freedom of the press with Supreme Court Justices anonin Scalia and Ruth Bader Ginsburg I want to point out that there's a new report out by an organization called reporters Without Borders very highly regarded that the US has experienced a what I called a profound erosion of press freedom in 2013 dropping 14 points to number 46 in global rankings now reporters are a little nervous these days and they like to feel that they have friends and I want to know in your judgment whether reporters are right in considering the Supreme Court today as a friend of the concept of freedom of the press Justice you want me to say no to that no I I want of course we we we we everybody on the court believes in freedom of the press now there's some difference as as to what that means okay what as as to whether it means for example that uh that a member of the press no matter what the National Emergency may be need not disclose his or her Source that's you know that's a question that uh that hasn't come up before us and I think it's very uh a very interesting and not necessarily uh not a question with a clear answer so you know you you you can believe in in freedom of the press and still have fun disagreeing okay I'd like to know how it was determined that that was the the 46 was the rank the US I'm just thinking of the tradition in England which holds to this very day that the Press can't report about trials right about ongoing trials and they can liable public figures in England you know and well since 19 excuse me since 1964 and the Sullivan New York Times case as you were pointing out before it's extremely difficult now for anybody to liable a reporter on this issue what I would like to get to here is something that is current and and very important to an awful lot of people in this country and I suspect that the court is going to face a number of major decisions in the area of government surveillance the National Security Agency the NSA its newly disclosed activi than all of the problems of whistleblowing Journalism and it's worth noting that the Washington Post just this week wanted to pull it a prize for its reporting on Edward Snowden and the NSA league so I'd like to start by asking you do you think the post deserve the prize Justice Ginsburg that's a question that the journalists in this audience are much better equipped to answer than right than I I don't read the post so I have no idea what they I have no idea what they got the prize for I do including the announcement was it was it that the bottom of the first page when it says what's coming up this week and this evening was yes announced as yes it an event yes it was very proud of that so tell me uh I didn't get terribly far on that um do you believe that Snowden is a whistleblower or a traiter oh I don't you know that's uh not not part of what I worry about really that's a u a policy a policy question not not a legal question and uh I stay out of that stuff and it's also possible is it not that the question you rais could come before the court um that is possible yes and we are not at Liberty to preview no I I appreciate that let me let me ask the question from another angle um if somebody the same question you're going to get the same answer that may be that may but I'm going to try it anyway all right um if somebody were to say to you that um what I am doing you you may disagree with I don't mean you personally you all may disagree with but I am doing this because I feel a moral obligation to do this I feel deep in my heart that my country is doing something wrong and I have an opportunity to change that and I want to change it so did the Germans who killed Jews I mean is that the Criterion whether you honestly believe what you're doing is good you have an obligation to form your conscience according to what is right and uh you know that's the issue the issue is whether it's right not whether you believe in it I'm sure Hitler was very sincere but the idea of it being right you mean right according to the law as established well in in in the context you put it right according to uh uh some moral judgment right to to the Ten Commandments right okay but we should we should notice note that the point that was was brought up before about hateful speech yes there was a case oh some many years ago involving the town of skoki Illinois where many Holocaust Survivors lived and the American Nazi party decided they would pick that town for that demonstration the case never came to the US Supreme Court but other federal courts said the demonstration is going to to be peaceful there will be police protection we don't anticipate any violence this group wants to March we hate what they say but we believe in their freedom to say it MH but that doesn't mean that it was good for them to say it or right for them to say it and it sometimes annoys me that when when somebody has made outrageous statements that are that are hateful uh somebody says sometimes the Press will say well he was just exercising his first amendment rights you know as though uh First Amendment rights are like muscles the more you use them the better and and and it doesn't matter what purpose you're using them for I mean you can be using your first amendment rights and it can be abominable that you are using your first amendment rights I'll defend your right to use it your right to use it but I will not defend the appropriateness of the manner in which you're using it now well Sur that can be very wrong Justice Scalia um was praised by some criticized by others for his decision in the flag burning case now I imagine that you thought the act itself was reprehensible repr I would have sent that guy to jail if I was King but yeah but by your ruling he had the right to burn the flag yes that's what the First Amendment means you you have the right to express your contempt for the government that doesn't mean it was a good thing for him to do that in that manner by by burning a symbol that meant so much to to so many other people but he he had the right to do it justice scal at a recent event in Brooklyn you were quoted as saying that basically the Supreme Court should not be deciding matters of National Security and you're quoted as saying the Supreme Court does not know didly about the nature and extent of the threat diddly did I say diddly that's what you're quot to to say it's truly stupid you went on that my court is going to be the last word on it first of all did you say that no I think I probably did I certainly believe it what did you mean Justin gin please I don't think we have a choice you know the court doesn't decide we're going to pick this area and straighten it out today there are petitions for review and if there is a law that the government says was violated and the other side said no the government can't do this can't engage in that kind of surveillance in that case comes to us we can't run away and say well we don't know much about that subject so we won't decide it you know what I was talking about this related to the Fourth Amendment not the Fifth Amendment the Fourth Amendment which which Pro prohibits unreasonable searches and seizures all right the first time my court had a case involving wiretapping uh it held that the way the Fourth Amendment reads is uh uh the people shall be secure in their persons houses papers and effects possessions against unreasonable searches and seizures and the court said quite properly hey conversations are not persons houses papers and effects uh wiretapping may be a very bad thing States had laws against it but it does not violate the Federal Constitution all right about 20 years later during the Warren Court we did 180 Dee turn and we said there are penumbras and emanations and conversations are covered by the this uh vague right of privacy that's contained in the Constitution now that that is the living Constitution okay changing what it what the text says and what it originally meant the consequence of that I was pointing out in Brooklyn I like Brooklyn I the the consequence of that is that now the institution of the government that is going to decide this highly significant NSA question about you know who can uh what what can what information can you get by wiretapping the institution that will decide that is without a doubt the institution least qualified to decide it it will be my court we you know it's a question of balancing the emergency against the intrusion when the emergency is high high enough you can have a higher intrusion it's why we all get searched when we when we board an airplane that's a terrible intrusion upon well just let me finish we know nothing about the degree of the risk nothing at all the executive knows the Congress knows we don't know anything and we are going to be the one to decide that question so what do we do when the case comes to us before before you answer that I would like to remind everyone that in the wir tapping case the argument that wir tapping has was not was not an unreasonable search or seizure there was a very strong opinion the other way by Justice brandise so and if I were on that court I would have voted the way he did I'd like to know uh how Justice Scalia distinguishes that kind of intrusion by the government from the decision you made in the heat emissions case now that the helicopter that was flying over ruse to see to to test the level of heat because if it was of a certain heat than maybe marijuana plants were growing then the helicopter copter never touched the roof and yet you said that was a violation of the fourth amendment that was an unreasonable because the people were not being secure in their houses from unre reasonable so I mean that's a clear example of of one of the facilities that is protected by the Fourth Amendment so wir tap someone in their house yeah if you have to break into their house to to wire type yes but but if you listen into to conversations you know when they're in the phone booth o intruding upon their generalized right of privacy don't to worry about that anymore there no no problem you're right about that you're right about that let me ask you this anyway we've gotten away from the Fifth Amendment haven't we no no I want to stick with this a First Amendment yeah but stick with the Fourth Amendment for just a sec and I don't know terribly much about it and I acknowledge that up front but my question is could data that is considered terribly important either by the media or by the government stored in a computer or stored in a cloud up there somewhere be considered a affects one of the four words you use that's very perceptive I thought about that that's thank you sir I've thought about that thank you but if you thought about that doesn't it follow that the US government would not be able to justify its NSA surveillance program and therefore conceivably could be in violation of the Constitution no because it's not absolute as Ruth said there are very few freedoms that are absolute I mean your your person is protected by the Fourth Amendment but as I pointed out when you board a plane somebody can can pass his hands all over your all over your body that's a terrible intrusion but given the danger that it's guarding against it's not an unreasonable intrusion and it can be the same thing with acquiring uh this data that that that is regarded as effects depends on how and and that's why I say it's it's foolish to have us make the decision because I don't know how serious the danger is in this in this NSA stuff don't you in the Supreme Court have the ability to pick up the phone and call somebody at the White House and say I have a question about absolutely not absolutely not AB there is how about we are at the mercy of whatever people happen to bring to us if they don't bring it to us we don't know it and we can't make a decision based on something outside the record of the case the parties and their lawyers have to know everything have access to everything that we will factor into our decision there I don't know how many times I would have loved to call law professor so and so who is the biggest expert call your husband in a tax case for example Marty Marty was the one of the best tax lawyers in the country but we can't do that because the other side the parties aren't there and don't have access to the same information so we are hemmed in by the record of the case and the court cannot resort to information that the parties do not have Justice Ginsburg I want to ask you the same question I asked jce scal about the data the storage and computers and linking that to the word effects and if that justifiably is linked to the word effects doesn't it follow logically that the case could be made that the government is in violation of the Constitution by um this government surveillance program an argument could be made certainly but it's it's not an argument that either of us could answer well I think Jia suggested we can't answer it all I don't think that's all what we have to answer it we will but we don't get questions in the form you post them Marvin we get a concrete case and not abstract question the effects are up there what can the government do okay yeah well I I would answer that one Ruth I mean that I you know that is person's houses papers and effects it's it's not it's not conversations but we can't we we you couldn't answer it in the abstract oh certainly not certainly not can we expect the Supreme Court to rule on the NSA issue it depends if there is a case that will begin not in the Supreme Court but in a federal okay district court and then go to a court of appeals we we do have the luxury of not having to decide things until they've been decided by other good Minds by judges in the federal trial courts and courts of appeals and and and it's not our responsibility to shape up the executive and make sure they're you know they're doing what they're supposed to or shaping up the Congress that's not our job our job is to prevent people from being harmed if nobody's being harmed we don't get into the matter and even if somebody is harmed unless he comes to us we we we we don't have any self-starting powers we're we're at the mercy of whoever wants to bring a case or whoever doesn't want to bring a case that was Ruth and I visited India one time a long time ago and the Indian Supreme Court India had a bill has a Bill of Rights which says that the the the the Apex Court their Supreme Court will assure the preservation of the Liberties set forth in the Bill of Rights and that Court interpreted that to mean that if they're sitting around of a Sunday reading the uh the Bombay times and they see that the uh police commissioner in no I looking I don't say parry and I and I don't say V and I will not say Mumbai it's Bombay we we have an English word for it anyway there they're they're sitting around reading the Bombay times and and and they see that the police commissioner in Punjab is holding people without charge which violates the Constitution that Court will on its own summon the police commissioner to give an account of himself our court can't do that we can't do that it's only when people bring problems to us you can't do that because that's the way it's always been done or there's a rule that says you can't do it we can't because the The Constitution limits us to actual cases and controversies there are many courts in the world that do operate by answering abstract general questions um constitutional courts have been set up said there's a constitutional Council in France that will preview a law if a certain number of deputies question the consistency of the bill with the Constitution the council will look at the bill no actual case before them just look at the words of the bill decide whether it's compatible with the Constitution and if the council holds it isn't compatible with the Constitution then the bill never gets enacted but that kind of judicial preview is legis to us right let let's talk for a minute or so about televising hearings of the Supreme Court um other courts do permit television why not the Supreme Court Justice Scalia you know when I first came on the court I I was I was in favor of it uh I have uh long since changed my view on that uh those who want to do it say that they want to educate the American people now if I really thought that it would educate the American people I would be in favor of it and indeed if the American people watched our proceedings from gavel to gavel they would be educated they would they would come to realize that although you know now and then we we do these sexy cases should there be a right to abortion should there be a right to Suicide should there be a right to this or that most of the time we are not contemplating our Naval we are not engaging in this broad philosophical ethical uh search most of the time we are doing real law we're doing the Internal Revenue code the bankruptcy code orisa really dull stuff and nobody would ever again come up to me and say justice Gia why do you have to be a lawyer to be on the Supreme Court because they think what we're doing is you know looking up the sky and saying should this right or that right exist well they could they can guess that as well as I can now the problem is for every person who watches us from gavel to gavel there will be 10,000 who will watch a 15 or 30 second take out on the Nightly News and I guarantee you that will not be characteristic of what we do it will be man bites dog so why should I uh participate in the miseducation of the American people I what about your feeling yeah there's another Factor if you are televising a trial everything that's unfolding is before the the camera if you're dealing with an appellant argument MH well if you would come to our Chambers at the moment because we're starting sitting on Monday you will see carts with briefs and briefs and briefs the oral argument in court is fleeting it is only 30 minutes aside I don't know how many hours we have spent preparing reading what had gone on in the case before it got to the Supreme Court Reading the briefs that the parties file and the many friends of court who want to be heard on questions of importance to them so the notion that an appell argument is a contest between lawyers and the better one will win is really a false picture of what the Appellate process is so you would be as Justice CLE opposed to televising I I think it's probably inevitable because there's going to be so much pressure for it and because other courts do it but but I would be very much concerned with mis portraying what an appeal is the written part is ever so much more important than the than the hour total um in court uh in the couple of minutes that we have left I want to just ask a question you've both been great buddies for a long time now but when did you meet and what were the circumstances if you could bet he doesn't know go ahead Ru go on when did you beet well we were buddies on the DC circuit DC circuit right and that is when you met at that time I met Nino for the first time when he was giving a speech to some unit of the ABA it must have been the administrative law section law section probably yeah and it was on a case that had recently been decided by the DC circuit it was before either of us got there and it was about we were both academics yeah it was it was about the Vermont Yankee case ver you were in Ving against it ter and I was listening to him and disagreeing with a good part of what he said but thought he said it in an absolutely captivating way I think we should leave it at that very point I mean as you know as you know composer Derek Wang who is with us tonight has produced this opera called Scalia gins and in it to beautiful music you're both locked in a room I understand unable to get out unless you agree on a compromise consistent with the Constitution and at one point Scalia Roars in despair oh Ruth can you read you're aware of the text yet so proudly you have failed to derive its true meaning the Constitution says absolutely nothing about this to which Ginsburg replies how many times must I Tell You Dear Mr Justice scal you are searching in vain for a bright line solution but the beautiful thing about our constitution is that like our society it can evolve so we've got only about a minute or so left are you two ever going to agree on big issues and still maintain the Friendship we agree on a whole lot of stuff Ruth is really bad only on the knee-jerk stuff she is she is no she's a really good textualist you know in those things where where where the text is is what she's Guided by she's terrific she's obviously very smart and uh you know most most cases I think we're together um but I keep say I think we're together we're together in a lot of criminal criminal um uh defense cases uh U upholding the rights of the criminal defendant uh Ruth and I are uh quite frequently in descent uh from the court decision so no we agree on a whole lot you you you have it you have it wrong I keep seeing these five4 decisions where you're on one side she's on the other well that's because the Press focuses on what the 20 25% of the heady cases the Constitutional cases most of what we're doing is trying to interpret dense statutes that Congress passed that that are very difficult to parse and on those cases there isn't the the usual lineup that the Press expects to see in the most watched cases so we agree on many procedure cases not always you you got one wrong last [Laughter] year but well and also I have to say something else we both care about the way opinions are crafted I mean it's not easy to to write an opinion and I think you care very much about how it's said and so do why because the way we say it is quite quite different and one one reason we became such uh good friends on the DC circuit was that we were both former academics I guess Harry Edwards was another academic on the court but in in in Academia at a law school when you wrote a law review article you would circulate it to your colleagues and they would make comments helpful comments not just this is wrong but you know there's an additional point you could make well Ruth and I did that uh with one another's opinions we wouldn't do it to anybody else's but you know she'd suggest uh some additional stuff that I could put in and and I would I would for her as well and that's wonderful that's I would like us to go on but our time's up and I'm sorry about that I want to thank our wonderful attentive audience I want to thank the many who watched and listened all over the nation and the world but most important I want to thank our remarkable guests two sitting justices of the Supreme Court of the United States Anthony Scalia and Ruth beta Ginsburg thank you both so [Music] much and and as we now close 20 years of doing these Cal reports I want to say thank you to all of the people who have made this kind of of civilized conversation possible and they know who they are but that is all we can do for now I'm Marvin Calin as EDM Maro used to say many many years ago good night and good [Applause] [Music] luck right now thank you so much um these these are not going out over television these are these are going out this is yes this is still uh being seen on C-Span okay um and the first question in front of me is to jce Scalia why are you the way that you are you could hit a home run on that the devil makes me do it uh justice Ginsburg the next question from Josh Gibson who's a student at the Kennedy School the first amendment is a bit of a grab bag of free expression rights did the founders consider uh them decide against including others are there others that they or you would wish that had been included well that was a concern about having a Bill of Rights that if you wrote down what what the rights were maybe there were some you you left out and we do have this statement in the ninth amendment that says the enumeration of certain rights shall not be construed to deny or disparage others well one thing that we didn't bring out before is the first amendment is the first amendment but it the first thing that was on the mind of the framers was not freedom of speech or of the press it was about not having an established church the first thing is no law respecting the establishment of religion and then the freedom side of it or prohibiting the free exercise there was so the the first thing that they didn't want to have was the Church of England but that's kind of a negative I mean it's something you you cannot do yes but what's the positive side of that would be freedom of religion that you can it's all it's all negative I mean it's all saying what the government cannot do it is all limitations upon the government it that that's what the whole Bill of Rights is the government can't do this government can't do that government can't do the other thing they're they're all negative and that except for the government everybody else can do what they want absolutely absolutely yes well to take to take to take an example we have we have an anti-discrimination law title 7 of the civil rights of 1964 until then discrimination in the private sector was okay because the Constitution restricts what government can do a private employer could say I don't want any women in this job and that would be perfectly okay as it was until 1964 did you have something to do with that well I I'd say President Johnson and the Congress that that passed the Civil Rights Act of 1964 I have a question to do with that from Katherine Kosen of the Newseum to whom does the First Amendment apply do undocumented immigrants have the five freedoms oh I think so I think anybody who's present in the United States uh has protections uh under the United States Constitution uh Americans abroad have that protection uh other people abroad do not they they don't have the protections of our constitution um I when we get to um the 14th Amendment it doesn't speak of citizens as some some constitutions Grant rights to Citizens but our constitution says person and the person is every every person who is here documented or undocumented I see thank you um I have a question from David dorson whom you know he's right over there prominent lawyer who was here with us where do you look to decide whether freedom of the press is or is not identical with freedom of speech I have a feeling that's a loaded question I I have never thought that uh that it was anything except identical I can't imagine that you can limit uh limit some things that can be spoken uh but cannot limit things that can be printed I I think it's the same same criteria as as to whether the the limitation is unconstitutional I think David must have a case in mind um a question here from Nikki schob of us news and World Report was there any case that rattled your friendship Joseph Ginsburg well Nino I think we were most at loggerheads over the VMI case yes remember that yes I do and you had a a stirring descent it was a great descent yeah you were you were the only de Center well that's only because Clarence was recused because he had a son there didn't he that's true yeah but remember that the chief voted for my judgment I know not your descending opinion but and we we went I don't know how many rounds we went we did back and forth yeah and one time I had a footnote that referred to the University of Virginia at Charlottesville oh yes you had a footnote back saying well you have to forgive this ignorant person because she doesn't know that there is no University of Virginia at Charlottesville there is only a University of Virginia and she even talked about the campus of the University of Virginia my goodness but you know what he did do he wasn't finished writing The Descent it was getting rather late we we're into June already he gave me what was the penultimate copy of his descent he wasn't ready to circulate it yet but he came to my Chambers and gave it to me and said I want to give you as much time as I can to answer this so I went off to to my circuit judicial conference read the thing on the plane and it ruined my whole weekend but that he G he gave me the extra days to respond I really appreciated that I have never gotten angry at Ruth or at any of my colleagues uh because of the way they voted in an opinion I mean if you cannot uh disagree with your colleagues on the law without taking it personally you ought to get another day job I mean it's it's it's it's just not the kind of a uh of a job that will allow you to behave that way so Ruth and I disagree on the law all the time but has never had anything to do with our with our friendship and we do also have a difference in style I'd say people might regard my opinions as rather dull boring yours are are really Jazzy sometimes here's a question from Seth Dawson of the office of Congressman Denny hect uh justice Stevens recently suggested a constitutional amendment to modify the Second Amendment if you could amend the Constitution in one way what would it be and why Justice SC um I I certainly would not want a constitutional convention I mean whoa who knows what would come out of that but if if there were a targeted uh amendment that that were adopted by the states I think uh the only provision I would amend is the amendment provision um I figured out one at one time uh what percentage of the populace could prevent an amendment to the Constitution and if you take a bare majority in the smallest state by population I think something less than 2% of the people can prevent a constitutional amendment that's it ought to be hard but it shouldn't be that hard J gensburg if I could choose an amendment to add to this constitution it would be the Equal Rights Amendment and that's what do you what do you mean by that please what how would you define that it me it means that women are people equal in stature before the law that's fundamental constitutional principle I think we have achieved that through legislation but legislation can be repealed it can be altered I mean we have I mentioned title seven of the Civil Rights Act and the first one was the Equal Pay Act but that principle belongs in our constitution it is in every constitution written since since the second world war so I would like my granddaughters when they pick up the Constitution to see that that notion that women and men are persons of equal stature I'd like them to see that that is a basic principle of our society there any doubt in your mind that that would pass the Judgment of the American people well it didn't came pretty close and then and I think that's an illustration of how powerfully hard it is to get an amendment yeah yeah yeah um you don't want me to comment on that to you no I don't a question here but no idea on who wrote it to what extent do social media platforms such as Twitter where speech can be broadcast to Millions instantly challenge traditional concepts of free speech interesting question what is your thought on that Justice Galia well I I don't know that it challenges traditional concepts of Free Speech it certainly challenges traditional manners of uh of uh um finding out who said what where certain people say things that are unlawful or that are punishable by law but I don't think it I don't think it changes what the First Amendment means there's also the great danger for people who use those device is is you can't take it back you know once you let it out it's there for everybody mhm to see but you don't feel that it changes the concept of freedom of speech or the Press you'd have to give me an example okay um suon Newman um asked this question as it becomes easier to share opinions and events should social media I.E Twitter Facebook Etc be required to limit what is shared H is that a legal question no it's a policy question I don't do policy would you agree I would I would agree with my okay uh Joshua kurd of the Washington Center do you feel the separation of church and state has been misunderstood with Congress and the Supreme Court taking a proactive stand on the establishment portion but not on the prohibition part I I don't understand what he means by the last part well proactive stand I was hoping that you would understand it but I didn't I I'm sorry I'm I'm not there okay all right our last question when you were a youngster what did you want to be when you grew up oh Lord I maybe I'm an unusual person I don't ever recall wanting to be anything I mean a baseball player or or a hockey player or a lawyer or certainly never a judge I I never set my cap on being on being a judge I didn't even want to be a lawyer when I was in college I when I graduated from college I didn't know what I was going to do I had I had an uncle who was a lawyer uncle Vince every time has an uncle Vince Vince Vince had an office in Trenton and I used to go out there and hang out there now and then it seemed like a good life so I went into the law but uh no I can't say I ever wanted to do anything except to do well what uh what I was assigned to do and if I have any any um uh what quality that that accounts for my making it this far it's uh it's my ability to interest myself in whatever was shoved under my nose no matter how no matter how dull it was I uh I I took pleasure in in doing it uh to the extent I could perfectly but I I never set my cap on on being even a federal judge much less a Supreme Court justice justice Ginsburg in my growing up years there were so many limits on what a girl could aspire to be she could not be a police officer she could not be a firefighter she could not be a coal miner she could not work at night there were all these restrictions there were very few women lawyers maybe 3% of the bar and there were even fewer judges so I never aspired to be a lawyer certainly not a a judge because if I had to make a living I better be a teacher that was a secure job for women and the exhilarating thing for me when I think of my daughter and my granddaughters is the opportunities open to them that didn't exist I'll give you and my favorite example of this is my granddaughter who's Now 23 when she was eight was with me and I was being interviewed and she said well I wanted to be part of this show too so the the reporter said all right Clara what would you like to be when you grow up and Clara's response was I would like to be president of the United States of the [Music] world and that to me the change in what girls can aspire to do and can achieve has been just exhilarating well unfortunately we' come to the end of the line I just want to share with you a um the essence of a conversation that was repeated over and over again with me and uh the producers of this program especially the executive producer Mike fredman whom you have met and that is um the thought that we live at a time in Washington when the idea that two people who have strongly different opinions on very important issues can actually be good friends and can actually respect one another and that kind of mutual respect is so terribly important today and I hope I truly hope that this program televised as it's been can set an example and serve as a model for people all over the country who might have different opinions but do recognize that in this country there's plenty of room for the different opinions and we ought to have more room for Mutual friendship so thank you both so very much for do appreciate it thank you ladies and gentlemen we ask that you please remain in your seats while Mr