A few months ago, Christopher Scalia penned a short article in the Weekly Standard about his father titled, “Antonin Scalia, Bogeyman of the Liberal Imagination.”
The younger Scalia had noticed an episode of Fox’s Scream Queens where his father was posed as a villainous character, one who tries to get the better of Jamie Lee Curtis before being repeatedly punched by her in between sharp verbal slaps: “The homosexual lifestyle is not destructive to the fabric of American Society,” “The Voting Rights Act should be authorized in every state,” and “The Affordable Care Act does not require people to eat broccoli!”
Given that Scalia’s view of constitutional law often led him to conclusions favored in conservative political circles, it’s not surprising that the man who died Friday night at the age of 79 would elicit such strong antipathy in socially progressive quarters. But it would be a mistake as some are doing to also see Scalia as one who always landed in an anti-Hollywood camp, especially on business issues.
Yes, nearly two years ago, Scalia authored a dissent when television broadcasters took on Aereo, the disruptive tech company that aimed to deliver over-the-air programming to consumers’ computers. The associate justice shrugged off entertainment industry concerns that a decision in favor of Aereo would ruin investment in creative works to address the majority opinion’s potential impact on cloud-storage providers. And yes, a decade earlier in one of Scalia’s important, if less appreciated, decisions, he wrote the majority opinion handing Twentieth Century Fox a big loss by concluding that entertainment companies and others couldn’t dress up plagiarism charges to be trademark claims so as to make an end-run around the public domain.
But a review of his canon also reveals he ended up siding with Hollywood interests quite a bit.
For example, take Eldrid v. Ashcroft, which had the Supreme Court reviewing an extension to the copyright term that was widely seen as a gift to Disney since Mickey Mouse was close to becoming public domain material. Making the argument that Congress had exceeded its powers was law professor Lawrence Lessig, who once clerked for Scalia. Writing for Legal Affairs, Lessig noted that his strategy going up to the Supreme Court was in targeting the “conservatives” including Scalia because they were consistent in limiting Congress’ powers. Lessig ended up losing the case. Scalia joined the majority. Lessig wrote how after the decision came out, he had “anger with the five conservatives,” before blaming himself for letting “a view of the law that I liked interfere with my view of the law as it is.”
Scalia was also part of the unanimous decision in MGM v. Grokster (2005) that held that tech platforms that promote copyright infringement could be liable as a contributory infringer and joined the majority in Golan v. Holder (2012) when the high court decided it was fine for Congress to pull millions of foreign works from the public domain to comply with an international treaty. Plus, in 2012, he was one of the dissenters in Kirtsaeng v. Wiley that went against the entertainment industry by extending the first-sale doctrine to copies made abroad.
When it came to cases impacting Hollywood, Scalia wasn’t particularly predictable.
In 2009, for instance, Scalia authored the majority opinion that upheld FCC fines for fleeting expletives, specifically, an F-bomb at the Golden Globes. Scalia wrote then about the “foul-mouthed glitteratae from Hollywood.” Three years later when the Supreme Court took another look at indecency on television, Scalia seemed poised to deliver another sharp rebuke. At oral arguments, Scalia commented, “Sign me up as supporting Justice Kennedy’s notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts…These are public airwaves, the government is entitled to insist upon a certain modicum of decency.”
And yet, when the decision came down, Scalia joined the majority’s view that the FCC violated television broadcasters’ due process in failing to give advance notice on policies concerning isolated instances of fleeting naughty words and nudity.
If Scalia was prudish, it didn’t seem to be an obstacle for him in delivering a view of the law that was contrary to such chastity. Two decades before signing off on a win for TV broadcasters, Scalia joined the other justices in Campbell v. Acuff-Rose Music, otherwise known as the case examining 2 Live Crew’s use of Roy Orbison’s “Oh, Pretty Woman.” There, he sided with a rap group notorious for filthy lyrics to deliver one of the most important copyright decisions in legal history — a case that determined that a parody’s commercial nature didn’t foreclose a “fair use.”
Frankly, it’s decisions like these that even give Fox the confidence to feature an Antonin Scalia parody on one of its shows.
Then again, one can never be too sure what twists of fate can befall American jurisprudence. One of the Supreme Court cert petitions we’re eagerly watching at the moment deals with retired professional football players suing over the videogame Madden NFL with claims of having their likenesses violated. In theory, if the football retirees win, it could cause entertainment companies to be more cautious when making depictions of real-life individuals in creative works. The videogame company is waving a First Amendment flag with fair use and public interest defenses, but in January 2015, the 9th Circuit Court of Appeals sided with the football players over the videogame company. If the Supreme Court agrees to hear the case, and it ended in a 4-4 vote thanks to Scalia’s death and political fighting over a successor, the 9th Circuit decision would stand. That would be, to say the least, a scream.