Even those who disagree with him find him engaging. Scalia and his family summer on the Outer Banks of North Carolina with a Naderite lawyer and his family--although the justice and the barrister share little legal or ideological common ground. He is also known to strike up conversations with total strangers, demonstrating a disarmingly genuine interest.
Nino--that's what we Washington cognoscenti call him--made a few new friends in late March when, to everybody's surprise, he voted with the majority in Cincinnati v. Discovery Network to strike down that city's news rack ban, thereby strengthening First Amendment protections of commercial speech.
The City Fathers there had outlawed only those racks which contained shoppers, real estate catalogues and suchlike advertising sheets, to insure "safer streets and a more harmonious landscape." A lower court had lifted the ban, citing the city's failure to establish a "reasonable fit" between the ends desired by the ordinance and the means it employed, as required by Central Hudson, the landmark 1980 case that established rules by which restrictions on commercial speech could be justified.
How Scalia would come down on the Discovery case no one knew, but there were indications. In the 1989 SUNY v. Fox case, which upheld a ban by the New York state colleges on Tupperware parties in its dorms, Scalia had cited the "reasonable fit" test, but concluded, "We leave it to governmental decision makers" to figure out just how that test applied.
Nobody quite knew what Scalia meant, but friends of commercial speech were not encouraged. They still don't know what he meant, but are now breathing more easily, for several reasons. First, the 6-3 majority not only cited the "reasonable fit" test in striking down the Cincinnati law, but also bolstered it. Henceforth, the court said, the fit must be "narrowly tailored."
Second, Nino sided with the other justices-- Stevens, Blackmun, O'Connor, Kennedy and Sourer--in pointing out that the news rack ban assumed a "low value" to commercial speech that is not constitutionally valid. While there are obvious differences between commercial and political speech, the court concluded nonetheless that advertising still deserves "substantial protection."
Third, Scalia broke with other conservatives on the court--Chief Justice Rehnquist and Thomas--whose reasoning had once seemed closer to his own. This, too, gladdened the hearts of the ad industry. Rehnquist, in his dissent, cited the 1986 Posadas decision, which found that if an activity can be regulated-- casino gambling, in this instance then speech about that activity can be regulated, too. By rejecting this reasoning in the March ruling, the court went far toward rejecting Posadas as well. This, for commercial speech proponents, was a significant victory, too.
There is one final reason Scalia's vote was such good news for advertisers. He and Sandra Day O'Connor were together on this one. That's something, court gossip had it, that had become increasingly unlikely. Sandy Baby (as she was once called by inebriated Redskins running back John Riggins) was said to be one of the few people in town to hate Scalia. She detested the man so intensely, it was whispered, that she'd vote against him out of sheer spite.
This, of course, Scalia denies. When asked about rumors of High Court animosities during a speech last month to the Association of American Publishers, he insisted, "We're all friends (on the court), some of us very good friends." But he quickly added: "Despite the fact that where we see an idea that deserves clunking over the head, we clunk it over the head."
Just how much clunking will be required in the months to come is not yet known. Perhaps less than usual. Six days before the court's Cincinnati ruling, Justice Byron "Whizzer" White, a Posadas fan, announced he would step down this summer. White's retirement means Bill Clinton will get to name a successor, presumably one without nanny problems and with Hillary's approval. For some time, everybody thought this would be Mario Cuomo, but since Mario said he wasn't interested, no subsequent front runner has emerged.
No matter who gets the job, ad lobbyists here remain encouraged. "White was a vote against commercial speech," says Dan Jaffe, vice president of the Association of National Advertisers. "So the worst that can happen is that Clinton replaces one anti-advertising vote with another anti-advertising vote--and we've still got a majority on our side."
Copyright Adweek L.P. (1993)