Justice Scalia to Judge Napolitano: 'NSA Stuff' May Go to Supreme Court

At an event at Brooklyn Law School this weekend, Supreme Court Justice Antonin Scalia hinted that the Supreme Court may review the National Security Agency's rampant spying on Americans' phone calls and Internet use that was revealed by Edward Snowden.

Justice Scalia, a guest at Brooklyn Law School for a talk on constitutional interpretation with Judge Andrew Napolitano, responded to an inquiry about the freedom of speech by joking that talking about the NSA could "get myself recused." He was asked, “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?” 

These questions triggered a classic answer from the Justice on originalism: the fact that technology has changed does not alter the meaning of the text of the First Amendment. "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 principals [sic] to the new technology that you applied to the old. And the same for reasonable searches and seizures," he added, according to Politicker.

When talking about "NSA stuff," Justice Scalia noted that he did not include "conversations" part of the "persons, houses, papers, and effects" found in Fourth Amendment language. He stated that there might very well be laws that should ban indiscriminate spying on conversations by the government, "but it doesn't violate the Constitution."

Justice Scalia added that he did not consider the Supreme Court sufficiently adept to weigh in on issues of national security. "The Supreme Court doesn't know diddly about the nature and extent of the threat. ... It's truly stupid that my court is going to be the last word on it," he noted.

While the conversation shifted to various other topics, it eventually returned to government intrusion into private life when a member of the audience weighed in. In response to a question about whether computer data is protected under the Fourth Amendment, Justice Scalia replied with no clear answer, but he was, according to Bloomberg Businessweek, "obviously tickled." His exact response was debatable: Bloomberg reported that he replied by saying, "Ooh!" a couple times, while Politicker claimed Scalia replied to the question with "Mmm! Mmm!" What he did say for certain was that the issue was "something that may well come up," so "I better not answer that."

Justice Scalia previously warned that violations of civil liberties were the natural actions of a country at war, discussing the possibility that a Korematsu-like Japanese internment situation could happen again. “You are kidding yourself if you think the same thing will not happen again,” Justice Scalia told a University of Hawaii audience earlier this year.


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