Facebook Flick Prompts SCOTUS Philosophical Debate

Supreme Court Justice Stephen Breyer recently saw The Social Network and admitted that the film puzzled him.

But, according to an MSNBC article, he used the film to claim that modern conditions and technologies should be considered by Justices when they are interpreting the U.S. Constitution, as in the case of Schwarzenegger vs. EMA.

This belief puts him at odds with fellow Justices Scalia and Thomas, who are subscribers to the originalism theory of interpretation, which puts forth the thought that the Constitution should be adhered to strictly as intended by its authors when it was written in 1787.

Justice Breyer said, “If I’m applying the First Amendment, I have to apply it to a world where there’s an Internet, and there’s Facebook, and there are movies like … ‘The Social Network,’ which I couldn’t even understand.”

Breyer, speaking to the originalism concept, added, “If you want to have history solve everything, let’s get nine historians and not nine judges.”

In an analysis of Breyer’s comments, Reason.com offered that, “Scalia’s stodgy, historically informed approach to new technology yields results that are less reflexively pro-government than Breyer’s allegedly with-it, adaptable method.”

Breyer and Scalia recently made a joint appearance at a Texas Tech University Law School where the diametrically-opposed pair discussed how they looked at cases coming before them. The two appeared to flip sides when the focus was shifted to the subject of recent legislation, versus interpreting the Constitution:

Scalia said he has no interest in what legislators intended when making a particular law.

Breyer countered, saying judges need to go back and find out the purpose legislators had when crafting a bill.

“I don’t at all look to what I think the legislature thought,” Scalia said. “I frankly don’t care what the legislature thought.”

Breyer responded quickly, saying, “That’s the problem,” which brought thunderous laughter from the crowd.

“You’ve got to go back to the purpose of the legislation, find out what’s there,” Breyer said. “That’s the democratic way, cause you can then hold that legislature responsible, rather than us, who you can’t control.”

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  1. 0
    Thad says:

    The good news is that it cuts both ways.  Modern social mores have chipped away at previous standards of indecency, obscenity, and pornography.

    I agree, generally, with the "living document" notions espoused by justices like Earl Warren — his court made landmark civil rights rulings because it interpreted the Constitution in a modern context, not an eighteenth-century one.

    And technology DOES have a pretty huge impact on how restrictions to speech are going to be decided in the future.  Pornography is an easy example — how many amateur videos are there floating around the Internet without the strict documentation required of professional producers?  How many people do you suppose downloaded the R Kelly video without realizing the girl was underage?  Should they be considered guilty of possession of child pornography even though it was unintentional?

    Or, take a look at teenagers sending each other explicit photos on their phones.  Or the recent tragedy of the man who killed himself after his sexual encounter was streamed on the Internet.  Or just the things people post on their Facebook pages — how much of that is admissible as evidence in a trial?  What if your journal is set to private and someone takes information from it and posts it publicly without your consent?

    Hell, look at copyright and patent law — it’s a goddamn mess and has done an absolutely terrible job keeping pace with technology.

    So, while I think the issue is irrelevant in Schwarzenegger v EMA and games should be considered the same as all other media for First Amendment purposes, I DO think Breyer’s point holds in a general sense: there’s a lot of technology out there that has proven game-changing, and the 18th-century rules don’t always apply.

  2. 0
    hellfire7885 says:

    My guess is it’s all technology he himself doesn’t use, so he feels it’s ok to restrict the use of it by others.

    The only "My rights are sacred and not to be touched but them, yeah, fuck their rights" line of thinking.

  3. 0
    MechaTama31 says:

    So, the existence of the internet, Facebook, and a movie he doesn’t understand, somehow means that it is OK to chip away at the First Amendment?  I guess I just don’t see whatever connection he seems to think there is between those things.

  4. 0
    Thad says:

    Oh, Breyer’s absolutely on the pro-California side, unless he takes a stance diametrically opposite to his line of questioning.  What I’m saying is that I agree with his views on interpreting the Constitution in a modern context IN GENERAL, but that they don’t apply in THIS SPECIFIC CASE.

  5. 0
    Thad says:

    I don’t think it was a mischaracterization of his question, it was a joke about his strict constitutionalism.  I thought it was a good one, too.

    But yes, I’ve read the transcript in its entirety and believe Scalia’s absolutely right on this — which is what I said in my post.  I just tend to agree GENERALLY with the notion that originalism is a myopic stance.

  6. 0
    Bill says:


    That’s interesting, because it seems to me that being able to reinterpret it based on the times leads to a greater possibility that Breyer would find that Videogames can be censored.  We’ll have to see how the vote comes out on this one to see if, in this case, his philosophy would allow for a limit on the free speech rights of the developers.


  7. 0
    dubh says:

    In the complete transcript, Scalia corrected Alito’s mischaracterization of his question.

    JUSTICE SCALIA: No, I want to know what James Madison thought about violence [emphasis added]. Was there any indication that anybody thought, when the First Amendment was adopted, that there was an exception to it [the First Amendment] for speech regarding violence? Anybody?

  8. 0
    Thad says:

    Generally speaking, I agree with Breyer (and esteemed predecessors like Marshall and Warren) that the Constitution needs to be interpreted in a modern context, and that the question of "what the founders intended" is often a complete non sequitur (see also Alito’s joke about Scalia trying to figure out what James Madison thought about video games).

    However, in the context of Schwarzenegger v EMA, well, this is GP and I think we’re all on Scalia’s side on this one.  In this specific instance, he’s absolutely right: the fact that we’re dealing with a new technology is irrelevant; all speech is equal.

  9. 0
    Left4Dead says:

    So he didn’t understand the movie.  There are lots of movies and video games that leave me baffled.  Does he at least have a Facebook account?  Older folk tend to get disconnected from the world around them for various reasons.

    – Left4Dead

    Why are zombies always eating brains? I want to see zombies that eat toes for a living. Undead-related pun intended.

    -- Left4Dead --

  10. 0
    Neeneko says:

    I guess it really depends on what you want to consider a single ‘document’.

    Since they were debated and signed seperatly, I consider them two documents.  Normally I would not consider ammendments alone a ‘document’ but because of how they were bundled and the process that went into them I consider the Bill of Rights suffiently distinct to stand on its own.

  11. 0
    NecroSen says:

    Only point I have here: the Constitution and Bill of Rights are a single document, not two. The Bill of Rights is simply the first 10 Amendments to the Constitution, of which there are currently 27.

  12. 0
    Neeneko says:

    I think the problem with ‘originalists’ is that, like ‘liberal’ or ‘concervative’ today, it is less about an approach or philophy and more about a particular (usually moving) set of idealogical beliefs that the person is rationalizing by claiming that they have historical wieght when often they do not.

    History can be a good guideline, but ‘what they ment’ becomes pretty meaningless when you introduce new situations that the drafters could not take into account… and becomes even more meaningless when you read some of the debates that show the founders were a diverse group with often mutually exclusive goals.  The constitution and bill of rights (for that matter, why they are two documents rather then one) was an exersize in horse trading and comprimise, with people wondering even at the time how it could be used to help or hurt thier preferred projects.   The 1st ammendment is a classic example since even on day one there was plenty of ‘well, of course they did not mean THAT speech’.

    The estbalishment clauses was another one that right off the bat it was interperted multiple ways, sometimes used to strenghen local denominational control, sometimes to protect small groups, and anyone who was not christian was left out with yet another ‘well, of course they didn’t mean that!’.  Muslims, Jews, Catholics, and Pagans were even in the original debate, with differnt states deciding if they actually ‘counted’ as religion or if ‘real religion’ could still be forced on them or not.

    So yeah.. the arguments that were happening today… history is not a terribly useful guide since the same arguments have been going on for over 200 years (and earlier).

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