Antonin Scalia Has a Civil Liberties Debate in Brooklyn

Antonin Scalia. (Photo: Getty)

Antonin Scalia. (Photo: Getty)

U.S. Supreme Court Justice Antonin Scalia last night weighed in on some of the most heated civil liberties debates in the country, including the legality of mass surveillance programs.

Mr. Scalia was in Brooklyn for a question-and-answer session with Judge Andrew Napolitano, a libertarian legal commentator on Fox News. Though a wide range of topics were discussed, Mr. Napolitano was most interested in pressing the famously conservative justice on government overreach.

“How expansive can an Antonin Scalia in 2014 interpret the freedom of speech? Does it pertain to cellphones or does it matter where you’re physically located when you’re using the cellphone?” Mr. Napolitano asked at the forum, hosted by the Brooklyn Law School in a local opera house.

“No. No. That demonstrates the falsity of the argument that sometimes is made opposing originalism: ‘Oh, society has come so far. There’s so many technologies. How can you apply this … old Constitution?’” replied Mr. Scalia. “It’s the freedom of speech. It doesn’t matter whether you’re speaking in semaphore or a cellphone or any type of modern technology. You apply the same First Amendment principles to the new technology that you applied to the old. And the same for reasonable searches and seizures.”

Mr. Napolitano then asked if mass surveillance of cellphones and emails would be prohibited by the Fourth Amendment, which states: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” Many of the National Security Agency’s controversial surveillance programs were prominently exposed last year by Edward Snowden, a former security contracted who leaked sensitive documents revealing the U.S. government’s wide collection of digital data.

“You’re getting into the NSA stuff, right?” Mr. Scalia remarked–one of many snarky, laughter-drawing lines he issued throughout the evening. “This may come before the court. And I don’t want to get myself recused.” But Mr. Scalia nevertheless directly said he didn’t feel “conversations” were part of the “persons, houses, papers and effects” covered by the Fourth Amendment.

“A wiretap is not a ‘persons, houses, papers and effects.’ It may be a very bad idea. Some states have laws against it. There probably should be laws against it. But it doesn’t violate the Constitution,” Mr. Scalia argued.

“These things are very specific. They said what items you may be secure against from unreasonable searches and seizures … I don’t think that you can expand that to say something that is quite different: That is ‘conversations,’” he later added.

“Does the Constitution protect the right to privacy?” asked Mr. Napolitano, causing Mr. Scalia to reiterate his position.

“Yes,” he answered. “Specifically it protects unreasonable searches of persons, houses, papers and effects. That’s what it says! What are you asking me for?” More laughter ensued.

When Mr. Scalia later took questions from audience members, a law student surprised the self-confident justice by pressing him on whether personal computer data–not conversations–should be protected. “Do you believe that data within a computer would be too broad of a construction of the word ‘effects’ under the Fourth Amendment?” the student inquired.

“Mmm! Mmm!” Mr. Scalia exclaimed to himself, clearly impressed with the line of argument but cautious about weighing in on a topic he expects to come up before the U.S. Supreme Court.

“I better not answer that,” he added whimsically. “That’s something that may well come up. It’s a really good question.”