Hello, and welcome to the National Press Club and to another edition of the Kalb Report. I'm Marvin Kalb. And our program tonight, "45 Words: A Conversation about the First Amendment with Supreme Court Justices Antonin 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, "Scalia/Ginsburg." (Laughter.) They are like...

the old days in this Capitol 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 am 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. (Laughter.)

OK.

I think our Constitution was inspired by the traditions of the common law. And I think 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. I don't think it has anything to do with Moses. (Laughter.) 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 could not be constrained to contribute to the support of a church that you didn't believe in, you could not be disabled from holding certain public offices because of your religion -- the absence of coercion. And I think it was the same for freedom of speech....

And, Justice Ginsburg, your view.

Marvin, 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, no graven images, keep the Sabbath holy -- everything obligations that people owe to the Almighty. But I also mentioned to you that your question is -- comes at just the right season because this is the Passover, and the Passover is indeed a celebration of the liberation of a people. And there are many words in the Haggadah that celebrate freedom. So I would take the Passover service, rather than the stern first four commandments, as advancing the idea of freedom....

Well, I knew I'd be wrong, but -- (laughter) -- I mean, I knew that to start with, but --

I thought you'd be wrong on the law, not on theology. (Laughter.)

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....

Oh, I don't think the common law was that diverse as far as what every aspect of freedom consisted of. The freedom of speech, for example, it was very clear that that did not include the freedom to libel, that you could be subject to a lawsuit for libel. And that type of coercion was not considered incompatible with the freedom of speech. Now, some aspects of it I suppose were more vague, 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 Paine had a simple explanation. He wrote, "It would be strange indeed if so celestial an article as freedom should not be highly rated." 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 have 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 remarks. 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 document. This First Amendment is saying: Hands off, government. It says -- it doesn't say everyone shall have the right to speak freely. That's what the Declaration of the Rights 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 directed to government and it says: Government, hands off. These rights already exist and you must not touch them....

John Stuart Mill, the -- I'm sorry. Please.

I was going to -- 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 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. What they thought 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 tinhorn dictator in the world today has a bill of rights. It isn't a bill of rights that produces freedom. It's the structure of government that prevents anybody from seizing all the power. Once that happens, you ignore the bill of rights. So, you know, keep your eye on the ball. Structure is -- 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 bicameral legislature, a genuine one, including England. They don't have a real bicameral. The House of Lords can't do anything. (Laughter.) Well, they can make the Commons pass the bill a second time. And when they pass it a second time it becomes law. There are very few countries, none of the parliamentary countries, that have a separately elected president. The chief executive, 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 them out. They have a no-confidence vote and have an election and appoint a new tool. 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 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 have to disagree with my colleague in that respect.

I'm glad that you can do it. I can't. (Laughter.)

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. (Laughter, applause.) 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 right. 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 was developed in a serious way -- around the time of the First World War it began. 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 was a big-ticket item mostly because until the middle of the 20th century -- 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 was -- that's why we never had, you know, until the middle of the 20th century these cases about whether you can have a creche in the -- in the city square. Is it OK if you have a menorah next to it, maybe Santa Claus on top? (Laughter.) I mean, we didn't have any of those silly cases. It was only -- only when the Bill of Rights was imposed upon the states that we began to have them. And so a lot of the restrictions on speech that -- you know, that would be imposed by states would not have been thought to violate our Bill of Rights -- maybe the states' bill of rights but not ours....

But I'm wondering, at the time that the structure of government was set up close to 200 years ago, what is it that the Founding Fathers had in mind when they thought about freedom? And one definition advanced by John Stuart 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 or 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 absolutely 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 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 Fathers?

Yes, I think so.