portion of the program. questions will be presented until 7:15. thank you very much. enjoy your evening. [applause] report" is funded by a grant from the ethics in journalism foundation. ♪ [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute] from the national press club, this is "the kablb report," with marvin kalb. >> hello, and welcome to another

edition. 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 test, but have two is indeed a very special privilege, especially these two, who generally represent contrasting opinions on the court, and yet they are great together,o dine travel together, love going to the opera together. they inspired a new opera called urg."iaginsb they are like the old das when lyrical differences would not

stop a friendship from portion. justice scalia is the longest-serving justice. appointed by reagan in 1986, he is called an original list, meaning he believes 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 of 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 the constitution is what has been called a living document, meaning it changes as society changes, one linked together. tradition and president matter, dent, but they do not determine her judgment.

both justices have devoted their law, teaching, democracy, and freedom. we are going to discuss freedom of the press, but let's start with what the concept of freedom means. meaning, at the time of the record revolution, and its meaning in today's america. i have always been fascinated by the fact that the first commandment of the 10 commandments in the bible and the first amendment in the thetitution both stress central importance of freedom. the first commandment saying i am the lord thy god who brought the fourth out of egypt, out of the house of bondage, and thou shall have no other god. the first amendment guarantees freedom of religion, of speech, of the press, of the right to

legally assemble, to petition the government for 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 that. [laughter] >> ok. i think our constitution was inspired by the traditions of law, and i think what our framers meant by the freedom of speech, for example, was that freedom of speech which was the birth right of englishmen at the time. i do not think it had 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 did not believe in. you could not be disabled from holding certain public offices because of your religion. absence of coercion. and i think it was the same for freedom of speech. >> 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 10 commandments, the first four of them are not about freedom, they are about human obligations to god. other god have no before me, no graven images, keep the sabbath holy, everything, obligations that to the almighty. but i also mentioned to you that

your question is -- comes at just the right season, because this is passover, and the passover is indeed a celebration of the liberation of a people, and there are many words in the haggana that celebrate freedoms. i would take the passover service rather than the stern first four commandments as advancing the idea of freedom. >> i knew i would be wrong -- [laughter] i knew that to start with. >> i thought you would be wrong on the law, not on theology. atwhat i would like to get is what your senses that the people who wrote the constitution had in their minds when they talked about freedom. you mentioned, and law. common law was not explicit

about freedom. many different interpretations were there, and what i am 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. law do not think the common was that diverse as far as what every aspect of freedom consisted of. the freedom of speech was very clear 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. iw, some aspects of it suppose we were more vague, but some things were pretty clear. >> and, justice ginsburg, the concept of freedom is very prominently featured in the constitution. it is right there 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." , and i will to me get back to this again and again i think, that if you are 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 are doing at the time it 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 constraints, government constraint. think ouri expression of the first amendment is quite different from the expression in the declaration of the rights of man, the french document.

is sayingamendment hands-off, government. it does not say everyone should have the right to speak freely. that is what the declaration of the rights of man says. everyone shall have the right right this week -- the right to use the freely. that's not what this has. it is congress shall know all that abridges the freedom of speech or press. it is directed to government, and it says, government, hands. these rights already exist, and you must not touch them. >> i'm sorry, plaese. -- please. >> it should not be painted as the foundation of the american democracy, this concept of freedom. do not forget the bill of rights was an afterthought. it was not what they debated about in philadelphia in 1787.

a couple of the states that ratified the constitution made it clear that they expected there to be a bill of rights in 1791ut it was added proposal of the first congress. what they thought would preserve a free society was the structure of the government. debated abouthey in 1787. and if you think that is false them a just look around the world. every 10 foreign dictator in the world today has a no of rights. it is not a bill of rights that produces freedom. it is the structure of government that prevents anybody from seizing all the power. once that happens, you ignore the bill of rights. keep your eye on the ball. structure is destiny. >> the eye on the ball being keep your eye on the structure of the government. our structure is so different

from that of most of the world. there are very few countries that have a bicameral legislature of a genuine one, including england. they do not really have a real bicameral legislature. the house of lords cannot do anything [laughter] . when they pass it a second time it becomes law. none of the parliamentary countries that have a separately elected president, the chief executive of all the countries in europe is the tool of the parliament. there is never serious disagreement between them. when there is, they kick them out. they have an election and appoint a new tool. i mean, we are so different from the rest of the world, and it is that it has more than anything else preserve our liberties. you would not 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 would not want to live there. >> i have to disagree with my colleague in that respect. >> i'm glad that you can do it.

[laughter] >> i do not think the rest of the world is regarding our legislature at the current moment as a model to be followed. [laughter] [applause] second, however it was understood at the beginning, yes, the structure of government was to protect our liberties, but there was always the idea of -- thick of our first date document, the declaration of think of our-- first great document for 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 ar that began. the freedom we enjoy today, 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, it was not thought to 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 is why we never had until the middle of the 20th century these cases about whether you creche in the city square, maybe santa claus on top. we do not have any of thiose silly cases. it was only when the bill of rights was a post upon the states -- was imposed upon the states that we begin to happen.

a lot of their search to we have on speech 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. >> 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 him and one definition advanced by john stuart mill i found very compelling, but i do not know whether that is whether they had it in mind. he spoke about absolute freedom of opinion and sentiment on all subjects, practical, speculative, scientifical, or theological. i am wondering whether that is what madison and monroe had in mind at that time, or whether they had a more narrow vision of freedom. justice ginsburg? it narrow,not call but there are no absolute rights, even though you read the

first amendment it sounds that way. it says, shall pass no law. of course, there are laws that congress can pass. right idea of an absolute i do not iknow any right that does not have limitations. >> even at that time in the minds of the founders? >> i think so. the first why in amendment after listing the freedom of speech, the founding fathers on the necessary or wanted to add four crucially important words -- or of the press. freedom of the press is what they were talking about. why did they add that phrase? why was it necessary, justice scalia? >> it is a natural addition. it means the freedom to speak and to write. it was not referring to the institutional press, the guy running around with a fedora hat with a sticker that says "press here to i am not sure that they

need to refer to the institutional press in those days. the freedom to speak and to publish. and that clause has been interpreted, not to get any special prerogatives to the institutional press. it gives prerogatives to anybody who has a xerox machine. >> what do you mean, institutional press cannot forgive me? what does that mean? >> i mean those organizations whose is this is writing and cbs, you. -- nbc, >> i like that. >> one idea we did not take from england was the office of the censored books, and that was part of putting in this

protection of the press, and we have never had it in the united states government and office of censor.or -- thele in england and continent think of verdi -- >> oh, you have to bring operant intuit -- opera into it. >> was it understood that there were limitations? orals, on speech and on speech and written speech come up with. i told you, libel laws were one thing. >> what about the press at the time? what were they thinking about at that time? weredo not know that there any special rules applicable to the press. the press did not have to get to dosion of a censor

publish, but neither did anybody else. >> and some very important figures, like thomas jefferson. wases, indeed, and it interesting that jefferson spoke very highly of the press before he became president. but while he was president he spoke about it as a polluted area, and you cannot believe about anything in any newspaper. >> one thing that epitomizes to me the importance of freedom of forch is in the ballot america, the right to speak my mind out. that is america to me. --i think if you had to pick and you probably should not have to -- but if you had to pick one freedom that is the most essential to the functioning of a democracy it has to be freedom of speech. because democracy means persuading one another and then ultimately voting and the majority rules.

you cannot run such a system if there is muzzling of one point of view. so it is a fundamental freedom in a democracy. much more necessary in a otheracy than in any system of government. i guess you can run an effective monitoring without freedom of speech. i do not think you can run an effective mercy without it. >> on this matter of press freedom, john adams wrote that mankind cannot now be governed without it, nor at present with it. and it seems that the idea of a free press has always been a problem for a succession of aerican presidents, but in broader sense, do you feel we could have endured as a democracy from then till now without the free press? what do you think about justice can smirk -- what do you think, justice ginsburg? >> i do not think so. i think the press played a tremendously important role as

watchdog over what the government is doing can and that keeps the government from getting too far out of line, because they will be in the limelight. of yes, there are all kinds excesses in the press, too, but we have to put up with that, i think, given the alternative. >> justice scalia, you want to comment on that? >> i agree with that. hard to keep the freedom of the press because there are many people who do not like what the press is publishing. --re was a cartoon around just after the revolutionary war, and it shows a toy being carted off by the police -- a tory being carted off by the police, and the caption is, liberty of speech to those who

speak the speech of liberty. againstight to speak what is theagainst prevailing view of society, is tremendously important. >> including the right to speak against the mocker say. do not forget that. some of the biggest fights are whether freedom of speech includes freedom to speak against freedom of speech or against democracy. it is possible. we have rejected that view. communists were entitled to say this democratic system does not work, let's get rid of it. >> that took a good while for that idea, because there were and against anarchy sedition. >> it takes us perhaps i think to the 1964 ruling of the

"the newourt on york times" v. sullivan. you spoke about libel. in this particular ruling, very specific regulation -- that is the wrong word -- but concepts are written into this rolling. i would like to read what justice brennan as said, because i think it deserves to be quoted as often as possible. "public discussion is a political duty, and it must be uninhibited, robust, and wide open and may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." you were mentioning this in a sense a moment ago. i am wondering, justice scalia, if this kind of an issue were brought before the court today,

at that time, in 1964, i believe the court's ruling was a unanimous vote and what would happen today? whether it recall was unanimous. i'm not sure it was. >> it was, it was 9-0. [laughter] i stand corrected. >> even so, it was wrong. [laughter] the issue is not whether it is a good idea to let the institutional -- i'm sorry, to let anybody -- what the case holds is if you are in public figure and it is a matter of some doubt what it takes to become a public figure -- but certainly any politician is a public figure -- if you are a public figure, you cannot sue somebody for libel unless you can prove that effectively that the person knew it was a lie.

so long as he heard from it very, it makes difficult for a public figure to win a libel suit. ithink george washington, think thomas jefferson, i think the framers would have been appalled at the notion that they eled withlib impunity. when the supreme court came out with that decision, it was revising the constitution. it might be a good idea to set up a system that way him and new york state could have revised its libel laws by popular vote to say them if you libel a public figure, it is ok, unless it is malicious. but new york state did not do that. it was nine law years who decided -- lawyers who decided that is what the constitution ought to mean even though it had never meant that. that is the difference between

ruth and me between a living constitution. she thinks that is all right and i did not. >> the situation did not exist in 1787 or 7091, that the court vs.ronted in "times" sullivan. it was a sheriff who said he was libeled in an advertisement in "the new york times." it was in the midst of the civil rights era, where libel laws could be used as a way of -- the people who were asserting their freedom. i think that "times" against sullivan is an issue of major significance. i will say that the lawyer who argued that case for "the new

york times," a great constitutional law scholar, when the story is told, we won, we won unanimously, the response was a little hesitant. he said that it is great for "the new york times," but what about all those -- i do not know -- papers that do not have high standards? "times" against sullivan is now well accepted, and i quite disagree with my colleague. founding that if the fathers were around to see what life was like in america in the 1960's they would have agreed with that. >> so you would have voted for it? >> god, yes, she would have

voted for it. [laughter] anything moresay about it, because this is a case we are going to hear next week, i think. a state has passed a law that says thou shalt not make false statements in a political candidate,ainst any any ballot initiative, no false statements in the elections. the questions that the court statutee is, is that prohibiting false statements in political campaigns -- is that constitutional. >> what are we going to expect on that? [laughter] >> decision by the end of june. there is another justice is

in, and i do not remember where justice scalia was, but it was the alvarez case, the man who about having the medal of honor-- >> oh, yes. something valor. valor act. >> before we get into that, i would like to take a moment now to remind our radio, television, and internet viewers and listener that this is "the kalb report," and i'm discussing freedom of the press with justices antonin scalia and ruth bader ginsburg. i want to point out that there ana new report out by organization called reporters without borders, very highly regarded. -- has. is experienced experienced a profound erosion of press freedom in 2013, dropping 14 point to number 46

in global rankings. little nervous these days, and they like to feel that they have friends. i want to know in your judgment whether reporters are right in considering the supreme court today as a friend of the concept of freedom of the press. justice scalia? >> you want me to say no to that? [laughter] of course, everybody on the court believes in freedom of the press. there is some difference as to what that means, ok? as to whether it means, for example, that a member of the press, no matter what the national emergency may peak, need not -- may be, need not disclose his or her source. that is a question that has not come up before us, and i think it is very -- a very interesting and not necessarily -- not a

question with a clear answer. so you can believe in freedom of the press and still have fun disagreeing. >> i would like to know how it was determined that that was -- i'm thinking of the tradition in england, what we are told this very day, that the press can't trials.bout ongoing >> and they can libel public figures. >> since 1964 and the sullivan -"new york times" case, it's very difficult for anyone to libel a reporter on this issue. what i would like to get here is something that is current and very important to a lot of people in this country.

i suspect the court is going to face a number of major decisions in the area of government surveillance, the national security agency, the nsa, it's newly disclosed activity, and all of the problems of whistleblowing journalism. it is worth noting the "washington post" this week won a pulitzer prize for his reporting on edward snowden and the nsa leaks. i would like to start by asking you do you think they deserve the prize? justice ginsburg? a question the journalists in the audience are much better equipped to answer that i am. >> i don't read "the post" so i have no idea what they got the prize for. [laughter] do, including the announcement at the bottom of the first page where it says what's coming up this week.

it was announced as an event. >> they are very proud of that. , dodn't get to it before you believe snowden is a whistleblower or traitor? -- that's not part of what i worry about, really. that is a policy question, not a legal question. i stay out of that stuff. >> it's also possible, is it not, that the question you raise could come before the court. >> that is possible. >> and we are not at liberty to preview. >> i appreciate that. let me ask the question from another angle. [laughter] it the same question, you are

to get the same answer. [laughter] >> but i'm going to try it anyway. [laughter] youomebody were to say to that what i'm doing, you may disagree with, i don't mean you personally, you may all disagree with, but i am doing this because i feel a moral obligation to do this will stop i feel deep in my heart my country is doing something wrong and i have an opportunity to change that. >> so did the germans who killed jews. is that the criteria? whether you honestly believe what you're doing is good? you have an obligation to form your conscience according to what is right. that's the issue. the issue is whether it's right, not whether you believe it. i'm sure hitler was very sincere. >> but the idea of it being right, you mean right according to the law as established? >> in the context you have what it, in the context, right

according to -- >> some moral judgment. >> to the 10 commandments. [laughter] rex we did note the point that was -- >> we brought up the point before about hateful speech. there was a case some many years of involving the town skokie, illinois, where many holocaust survivors live and do not see party decided they were going to take that town for the demonstration. to the u.s.er came supreme court, but other federal the demonstration is going to be peaceful, there will be police detection, we don't anticipate any violence. this group wants to march, we hate what they say, but we believe in their freedom to say it will stop -- their freedom to say it.

>> but that doesn't mean it was good for them to say it or write for them to say it. it sometimes annoys me that when someone has made outrageous statements that are hateful, somebody says, sometimes the press will say he's just exercising his first amendment rights of stop -- first amendment right. like they are muscles, the more you use them, they are the batter, and it doesn't matter what purpose you are using them for. firstn be using your amendment rights and it can be abominable you are using your first amendment rights. i will defend your right to use it, but i will not defend the appropriateness or manner in which you are using it now. that could be very wrong. , praised bycalia some and criticized by others for his decision the flagburning case. imagine you thought the act

itself was reprehensible. >> i would have sent that guy to jail if i was came. keying.was [laughter] but by your ruling, he had the right to burn the flag? >> that's what the first amendment means. you have your right to express her contempt for the government. it doesn't mean by burning a symbol that meant so much to so many people that it was right, but he had the right to do it. >> justice scalia, at a recent event in brooklyn, your recorded as saying the supreme court should not be deciding matters of national security and you are quoted as saying "the supreme court does not note italy about the nature of the threat -- >> did i say diddly? [laughter] the courty stupid will be the last word on it? that?u say >> i probably did.

i certainly believe it. [laughter] think we have a choice. whethert doesn't decide to pick this area and straighten it out today. there are petitions for review theif there is a law government says was violated and the other side says no, the government can't engage in that kind of surveillance emma -- that kind of surveillance, if that comes to us, we can't run away and say we don't know much about that, so we won't decide it. related to the fourth amendment, not the fifth amendment. the fourth amendment which prohibits unreasonable searches and seizures. the first time my court had a wiretapping, it held the way the fourth amendment reads is the people

shall be secure in their persons, houses, papers and effects. against unreasonable searches and seizures. and the court said quite raab early about commerce asians are not persons, houses, papers and effects. wiretapping may be a bad thing, states have laws against it, but does not violate the federal constitution, all right? , during thers later war in court, we did a 180 degree turn and said there are penumbras and emanations and conversations are covered by this vague right of privacy contained in the constitution. that is the living constitution, changing what the text said and what it meant. the consequence i was pointing , the consequence of institution now the

of the government that is going -- this highly significant nsa question about what information can you get by wiretapping? the institution that will survive that is the institution least qualified to decide. it will be my court. balancingestion of the emergency against the intrusion, when the emergency is high enough, you can have a higher intrusion. all get searched when we boarded airplane. that's a terrible intrusion. we know nothing about the degree of the risk will stop nothing at all. the executive knows, the congress knows, we don't know anything and we are going to be the one to decide that question. >> so what do we do in the case comes to us? before you answer that, i would like to remind everybody in the

wiretapping case, the argument wiretapping was not an unreasonable search or seizure, there was a very strong opinion the other way by justice brandeis. court, i wouldat have voted the way he did. i would like to know how justice scalia distinguishes that kind of intrusion by the government. from the to -- from the decision you made in the heat in missions case, the helicopter that was flying over roofs to test the wasl of heat because if it of a certain heat, maybe marijuana plants were growing. helicopter never touched the that was yet you said

a violation of the fourth amendment. that was an unreasonable -- >> because the people were not being secure in their houses will stop from unreasonable search -- in their houses from unreasonable search. that is protected by the fourth amendment. >> you can wiretap someone in their house? >> if you have to break it to their house to wiretap, yes, but if you listen to conversations in the phone booth, intruding --n the right of privacy >> we don't have to worry about that anymore. there are no more phone booth. [laughter] right about that. >> we've gotten away from the fifth amendment, heavenly? -- haven't we? with the fourth amendment. i don't know much about it and i acknowledge that up front, but my question is could data that

is considered important by the media or by the government stored in a computer or stored in a cloud somewhere be considered effects? >> that's very perceptive and i thought about that. >> if you thought about that, doesn't it follow that the u.s. government would not be able to justify its nsa surveillance program and therefore conceivably could be in violation of the constitution? fax no, because it's not absolute stop as ruth said, there are very few freedoms that are absolute. your person is protected by the fourth amendment on the but as i pointed out, when you board a plane, someone can pass his hands all over your body. that's a terrible intrusion, but given the danger it is guarding against, it's not an unreasonable intrusion. it can be the same thing with

acquiring this data that is regarded as if that. it's foolish to have us make the decision because i don't know how serious the danger is in this nsa stuff. does the supreme court have the ability to pick up the phone and call somebody at the white house and say i have a question? >> absolutely not. >> absolutely not. [laughter] of whatevere mercy people happen to bring to us. if they don't ring it to us, we don't know it. >> and we cannot make a decision based on something outside the record of the case. the potty -- the parties and their lawyers have to know everything, have access to everything we will fact her into our decisions. i don't know how many times i so --love to call so and

>> call your husband in a tax case? marty was one of the best tax lawyers and the country. >> but we can't do that because the parties aren't there. those have access to the same information, so we are hemmed in by the record of the case and the court cannot resort to information the parties do not have. >> i want to ask you the same question i asked justice scalia about the data, the storage in computers and linking that to the word effects, and if that justifiably points to the effects, doesn't that follow justifiably that they government is in violation of the constitution by this government surveillance program? >> an argument could be made, certainly. but it is not an argument that either of us could answer. justice scalia said we

can't answer it at all, but we will answer it if we have to. but we can get questions in the form that you pose them. we get a concrete case and not an abstract question. what can the government do? >> i would answer that one. persons, houses, papers and effects, not conversations. inyou could not answer it the abstract. >> certainly not. >> can we expect the supreme court to rule on the nsa issue? depends.en -- >> it it will be in a federal district court in and go to the court of appeals. we do have the luxury of not having to decide rings and till they have been decided by other good minds, five judges in the

federal trial courts and courts of appeals. >> and it's not our responsibility to shake of the executive and make sure they are doing what they're supposed to were shaping the congress. that's not our job. our job is to prevent people from being harmed. if nobody is being harmed, we don't get into the matter. even if someone is harmed, and less he comes to us, we don't have any self starting powers. we are at the mercy of whoever wants to bring a case or whoever doesn't want to bring a case will stop ruth and i visited india one time a long time ago. the indian supreme court -- india has a bill of rights which the apex court, their supreme court will assure the preservation of the liberty set forth in the bill of rights. that court interpreted that to mean that if they are sitting around on a sunday reading the bombay times and they see the police commissioner --

>> [inaudible] [applause] say that and i won't say bye-bye. we have an english word for it. mumbai.n't say they say the police officer is holding people without charge. that court will on its own summon the police commissioner to give an account of himself. our court cannot do that. bringnly when people problems to us. but you can't do it because that's the way it's always been done or there is a rule? us to constitution limits actual cases in controversy. there are courts around the world that do answer abstract general questions.

constitutional courts have been set up, the constitutional council in france, that will preview a law if a certain number of deputies questioned the consistency of the bill with the constitution. the council will look at the bill, just look at the words of the bill, decide whether it's compatible with the constitution , and if the council holds it isn't compatible with the constitution, then the bill never gets acted. -- never gets and acted. that kind of judicial preview is foreign to us. >> let's talk for a minute or so about televising hearings of the supreme court. other courts do permit television. why not the supreme court? justice scalia? >> when i first came on the

court, i was in favor of it. i have long since changed my view on that. they who want to do it say want to educate the american people. if i really thought it would educate the american people, i would be in favor of it. indeed, if the american people watched our proceedings from gavel-to-gavel, they would be educated. they would come to realize that although now and then we do these sexy cases, should there be a right to abortion of a should there be a right to suicide, should there be a right to this or that, most of the time, we are not contemplating our naval, engaging in this broad, philosophical, ethical search. most of the time, we are doing real law. we are doing the internal revenue code, the bankruptcy code, really dull stuff. and nobody would ever again come up to me and say justice scalia, why do you have to be a lawyer to be on the supreme court question mark they think what

we're doing is looking up at the sky and saying should this right or that right exists. they could guess that as well as i can. is for everylem person who watches us from gavel-to-gavel, there will be 10,000 who will watch a 15 or 30 seconds takeout on the nightly news and i therein to you, that will not be characteristic of what we do. it will be man bites dog. so why should i participate in the miseducation of the american people? >> what about your feelings? >> there's another factor. televising, everything is unfolding before the camera, if you are dealing with an appellate argument, if you would come to our chambers

at the moment because we start sitting on monday, you would see cards with reefs and briefs and briefs. the oral argument in court is fleeting. it's only 30 minutes a side. i don't know how many hours we have spent repairing -- preparing, reading what had gone on in the case before they got to the supreme court, reading the briefs that the parties filed and then many friends of the court who want to be heard on questions of importance to them. that an appellate argument is a contest between lawyers and the better one will of what false picture the appellate process is. >> so you would be, as justice scalia, opposed to televising? >> i think it's probably inevitable because there's going

to be so much pressure for it and because other courts do it. but i would be very much concerned with ms. portraying what an appeal is -- mi s-portraying what an appeal is. it's much more important than the our total in court. >> in the couple of minutes we have left, i want to ask a question -- you have both been great buddies for a long time. when did you meet and what were the circumstances? >> he doesn't know. [laughter] ahead, ruth. >> when did you meet? >> we were buddies on the d c circuit. >> that is when you met? him for the first time ton he was giving a speech some unit of the ada -- of the aba. must have been administrative

section. it was on a case that had recently been decided by the d c circuit. about -- >> we were both academics. >> it was the vermont yankee case. against it and i was listening to him and this agreement the good part of what he said. but the way he said it in an absolutely captivating way. know, composer eric wang who is with us tonight has produced an opera called "scalia ginsburg." to beautiful music, you are both locked in a room and unable to -- you'red agree unable to get out unless you agree. scalia says, oh, ruth, -- can you read?

the constitution says absolutely nothing about this, to which ginsburg replies, how many times must i tell you, dear mr. justice scalia, you are searching in vain for a bright line solution but the beautiful thing about our constitution is that like our society, it can evolve will stop -- it can evolve. are you two ever going to agree on big issues and still maintain a friendship? >> we agree on a whole lot of stuff. ruth is really bad only on the knee-jerk stuff. [laughter] goods a really textualists. where the text is there, she's terrific. she's obviously very smart and most cases, i think come a we are together. together in a lot of criminal defense cases, of

holding the rights of the criminal defendant. we ruth and i are quite frequently in dissent from the court's decision. you have it wrong. >> these 5-4 decisions where she is on one side -- >> that's because the press focuses on the 25% of the heady cages, the constitutional cases. most of what we are doing is trying to interpret dense passed, veryress difficult to parse. cases, there isn't the usual lineup the press expects to see in the most-watched cases. so we agree on many procedure cases. not always. you got one wrong last year.

[laughter] and also, i have to say something else. about the way opinions are crafted. it's not easy to write an opinion. i think you care very much about how it is said and said why. the way we say it is quite different. we became such good friends on the d c circuit was we were both former academics. harry edwards was another academic on the court. but in academia, when you wrote a law review article, you would circulate it to your colleagues and i would make comments, helpful comments, not just this is wrong. but there's an additional point you could make. ruth and i did that with one another opinions -- one another's opinions. she would -- she would suggest

different stuff i could put an end i would her as well. >> our time is up. i'm sorry about that. i want to thank our wonderful, attentive audience. i want to thank the many who listened all over the world, but most important way, i want to thank our remarkable guests, to sitting justices of the supreme court of the united states, antonin scalia and ruth bader ginsburg. they keep both so much will stop -- thank you both so much. [applause] , i want toow close say thank you to all of the people who have made this kind of civilized conversation possible and they know they are. that's all we can do for now. i am marvin dekalb and as edward murrow used to say, good night and good luck.

[applause] thank you so much. these are going out? this is still being seen on c-span. of first question in front me is to justice scalia. why are you the way that you are? [laughter] you could hit a home run on that. >> the devil makes me do it. [laughter] nextstice insperity, the question from josh gibson, a student at the kennedy school. the first amendment is a bit of a grab bag of free expression rights.

andthe founders consider then decide against including others? are there others they or you wish had been included? >> that was the concern about having a bill of rights. you wrote down what the rights were and may be there were some you left out. statement in the ninth amendment that says the enumeration of certain rights shall not be construed to deny or disparage others. one thing we didn't bring up amendment isirst the first amendment. the first thing that was on the minds of the framers was not freedom of the press, it was about not having an established church. the first thing is no law

respecting the establishment of religion. it orhe freedom side of prohibiting the free exercise thereof. of at that is kind negative. something that you cannot do. >> yes. >> what is the positive side of that -- freedom of religion? all negative. saying what the government cannot do. limitations on the government to read that is what the bill of rights is. the government to not do this or that. they are all negative. >> except for the government, everybody can do what they want. >> absolutely. have take an example, we an antidiscrimination law. of 1964.

until then, discrimination was ok and the private sector. because the constitution restricts what government can do. a private employer could say, i don't want any women. that would be ok until 1964. >> did you have something to do with that? [laughter] johnsonld say president in the congress did when they passed the civil rights act of 1964. >> i have a question from catherine of the news him -- newseum. two food as the first amendment apply? whom does the first amendment apply? two undocumented -- two undocumented immigrants have this protection?

>> americans abroad have this protection. other people abroad do not. when we get to the 14th amendment, it doesn't speak of citizens. some constitutions grant right to citizens. persons. the person is every person who is here. documented or undocumented. >> thank you. i have a question from david. a prominent lawyer who is here with us. where'd you look to decide whether freedom of the press is or is not identical with freedom of speech? i have a feeling that is a loaded question. [laughter] >> i have never thought it was

anything except identical. i can't imagine you can limit some things that can be spoken but cannot limit things that can be printed. i think it is the same criteria as to whether the limitation is unconstitutional. >> i think he must have a case in mind. [laughter] here from vicki of u.s. dues and review report -- u.s. news & world report. is there any case that rattled your friendship, justice ginsburg? most -- over were the vmi case. remember that? >> it was a great dissent. [laughter] >> you were the only dissenter. >> that is only because clarence

was recused because he had his son there. >> that's true. of votedthat the chief for my judgment, not your dissenting opinion. [laughter] we went, i don't know how many rounds. >> we did, back-and-forth. had a footnote that referred to the university of virginia at charlottesville. said, you have to forgive this innocent person. there is no university of virginia at charlottesville. >> she even talked about the campus. he gave me a copy of his dissent. he was not ready to circulated. he gave it to me and said i want

to give you as much time as i . i went up tothis my conference. it ruined my whole weekend. [laughter] he gave me the extra days to respond. i appreciated that. >> i have never gotten angry at ruth or any of my colleagues. because of the way they voted in an opinion. if you cannot disagree with your colleagues on the law without taking it personally, you have job.t ia another day it is not the kind of job that will allow you to behave that way. we disagree on the law all the time. it is never had anything to do with our friendship. >> we do have a different style. guard myple might

opinions as dull or boring. yours are really jesse sometimes. -- jazzy sometimes. [laughter] >> here is a question. justice stevens recently suggested a constitutional the secondo modify amendment. if you could amend the constitution in one way, what would it be and why? justice scalia? want artainly would not constitutional convention. whoa. who knows what would come out of that. if there were a targeted amendment that were adopted by the states, i think the only provision i would amend is the amended provision. provision.t i figured out what percentage of

the populace could prevent an amendment to the constitution. if you take a bare majority in the smallest states by population, i think something less than two percent of the people can prevent a constitutional amendment. it ought to be hard, but it shouldn't be that hard. >> justice ginsburg? inif i could choose amendment to add to this constitution, it would be the equal rights amendment. [applause] what you mean by that, please? peopleeans women are equal in stature before the law. that is fundamental constitutional principle. i think we have achieved that through legislation, but

legislation can be repealed. it can be altered. i mention this title vii of the civil rights act. the first one was the equal pay act. principle belongs in our constitution. it is in constitution written since the second world war. my granddaughters when they pick up the constitution to see that that notion that women and men are will -- people of equal stature, i would like them to see that is a basic sensible of our society. minduld you doubt in your that would pass the judgment of the american people? >> it did not. it came pretty close. illustration of how

hard it is -- >> to get an amendment. >> yes. a question here but no idea who wrote it. to what extent do social media platforms such as twitter, where speech can be broadcast to millions instantly, challenge traditional concepts of free speech? interesting question. what is your thought, justice scalia? i don't know that it challenges traditional concepts of free speech. it certainly trail -- challenges traditional manners of finding out who said what were certain people say things that are unlawful or punishable by law. i don't think it changes what the first amendment means.

there is a great danger for people who use those devices -- you can't take it back. once you let it out, it is there for everybody to see. changes the feel it concept of freedom of each, -- speech? >> you would have to give me an example. senator newman asked this question. as it becomes easier to share opinions and events, should social media, i.e. twitter, facebook, etc., be required to limit what is shared? is that a legal question? >> no. it is a policy question. i don't do policy. [laughter] >> i would agree with my

colleague. >> joshua of the washington center. of churche separation and state has been misunderstood with congress and the supreme court taking a proactive stand on the establishment portion but not on the prohibition part? i don't understand what he means by the last part. >> i was hoping you would understand. [laughter] i'm sorry, i'm not there. our last question. when you are a youngster, what did you want to be when you grew up? oh lord. >> maybe i am unusual. i don't ever recall wanting to be anything. a baseball player or a hockey player or a lawyer. certainly never a judge. i never set my cap on being a judge.

i didn't even want to be a lawyer when i was in college. when i graduated, i didn't know what i was going to do. i had an uncle who was a lawyer. uncle vince. an office in trenton. ice to go and hang it up -- hang up -- i used to go out and hang out. i only wanted stew well what i was assigned to do. if i have any quality that accounts for my making it this ability tomy interest myself in whatever was shoved under my nose, no matter how dull it was. toook pleasure in doing it the extent i could perfectly. beingnever set my cap on even a federal judge, much less a supreme court justice. >> justice ginsburg? there was so up,

many limits on what a girl could aspire to be. she could not be a police officer. she could not be a firefighter, a coal miner. she could not work at night. all these restrictions. very few women lawyers from a maybe three percent of the bar. even fewer judges. lawyer.aspired to be a certainly not a judge. living, i waske a going to be a teacher. that was a secure job for women. the exhilarating thing for me, what i think my daughter and opportunities, is opened to them that did not exist. my favorite example is my granddaughter who is now 23. when she was eight, she was with

me. she said, i want to be part of the show to. -- show, too. >the reporter said, what would you like to be? her response was, i would like to be president of the united states of the world. [laughter] that to me is the change in what girls can aspire to do and achieve. it has been exhilarating. >> unfortunately, we have come to the end of the line. i want to share with you the essence of a conversation that was repeated over and over again with me and the producers of the program. especially mike friedman, the executive producer. the thought that we live in a time in washington when the idea that two people who have

strongly different opinions on very important issues can actually be good friends and can actually respect one another. that kind of mutual respect is so terribly important today. i hope, i truly hope, that this program, televised as it has been, can be a model for people all over the country who might have different opinions but do recognize that in this country there's plenty of room for different opinions. we ought to have more room for mutual friendship. thank you so much for being here. [applause] >> ladies and gentlemen, we ask that you remain in your seats while the justices are escorted from the ballroom.

once again, we would ask that you please remain in your seats. >> tomorrow on c-span, us up print court oral argument. -- a supreme court oral argument. friday at 6:55 p.m. eastern. present obama held a news conference this afternoon. that 8 million people have signed up under the affordable health care act. that he talked about in agreement that will try to and the conflict with russia and the ukraine. >> hello, everybody before i began, i want to express on behalf of the american people

our deepest condolences to the republic of korea and the families of those who saw their loved ones lost when a ferry sank within the last couple of days. obviously information is still coming in. we know that many of the victims were students. navy and marines have been on the scene helping with the .escue one of our closest allies, our commitment to south korea is unwavering in good times and in bad him and that is something all underscore during my visit to seoul next week. before i take questions, i would also like to say a few words about how the affordable care act is now covering more people at less cost than most would have predicted a few months ago.

the first open enrollment period under the law and did a little over two weeks ago tom and does more data comes in, we now know the number of americans who have signed up for private insurance in the marketplaces has grown to 8 million people. 8 million people. 35% of people who enrolled through the federal marketplace are under the age of 35. all told, independent experts now estimate millions of americans who were uninsured have gained coverage this year with millions more to come next year and the year after. we have also seen signs the affordable care act is bringing economic security to more americans. the newest law added transparency and competition to the individual market. folks who bought insurance on their own. while we would suspect that premiums will keep rising as they have for decades, we also know since the law took effect, health care spending has risen more slowly than at any time in the past 50 years.

in the decade before the affordable care act, insurance rose to almost eight percent per year. last year grew at half that. under this law it has nearly stopped growing, the life of the medicare trust fund extended by 10 years. the independent congressional budget office expects premiums for plans in the marketplace to be 15% lower than originally predicted. those savings add up more money to families can spend at businesses. more businesses can spend hiring workers. the cbo now says the affordable care act will be cheaper than recently projected. lower cost from cover revisions will shrink deficits by an extra hundred billion dollars. the bottom line is, under the affordable care act, the share of americans with insurance is up, the growth of health-care

cost is down, hundreds of millions of americans who are ready have insurance now have new benefits and protections from preventative care from caps on your care. no american with a pre-existing condition like asthma or cancer can be denied coverage. no woman can be charged more just for being a woman. those days are over. this thing is working. i have said before this law will not solve all of the problems in the health care system. we know we have more work to do. but we now know for fact repealing the affordable care act would increase the deficit, raise premiums for millions of americans and take insurance way for millions more -- and give insurance to millions more. that is why i find this strange -- it's strange the republican position is still stuck in the same place it has always been. they still cannot bring

themselves to admit the affordable care act is working. they said no one would sign up. they were wrong about that. they said it would be unaffordable for the country. they were wrong about that. they have no alternative answer for millions of americans with pre-existing conditions who would be denied coverage again. where every woman who would be charged more for just he and the woman. i know every american will not agree with this law, but i think we can agree it is well past time to move on as a country and refocus our energy on the issues that the american people are most concerned about, and that continues to be the economy. the endless fruitless repeal efforts come at a cost. the 50 or so votes republicans have taken to repeal the law could have been 50 votes to make jobs like infrastructure and innovation or 50 votes to make it easier for middle-class

families to send kids to college or 50 votes to raise the minimum wage or restore unemployment insurance that they let expire for folks working hard to find a new job. the point is the repeal debate is and should be overt. i know it is working and the american people do not want to spend the next 2.5 years fighting the settled political battles of the next five years. to restore the founding printable opportunity and that is what i intend to keep doing him as long as i am in this office. with that, i will take some questions. let's see who we got. kathleen hennessey of "the la times." >> it sounds like there have been developed in the ukraine talks in geneva. i was wondering if you could talk about your level of

confidence in what the agreement is and how you think russia will follow through given the remarks from president whom this morning. >> i do not think we can be sure of anything at this point. i think there is a prospect diplomacy may de-escalate the situation and we may be able to move towards what has always been our goal, which is letting ukrainians make their own decisions about their own lives. there was a meeting in geneva representives as the ukrainian government, russian government, the eu, as well as the united states. it was a lengthy, vigorous conversation. my understanding is the ukrainian prime minister gave a detailed and thorough presentation about the reforms they intend to introduce, including reforms that provide assurances for ukrainians that live in eastern and southern

ukraine, that they will be fully represented, but their rights will be protected, that russian speakers and natives and ukraine -- in ukraine will have the full protection of the law, and my understanding, based on what i have heard, is that there was an acknowledgement within the meeting that the ukrainian government in kiev had gone out of its way to address the range of concerns that may have existed in southern and eastern ukraine. there was a promising public statement that indicated the need to disarm all irregular forces and militias and groups that had been occupying buildings. there was an offer of amnesty to those who would willingly lay down their arms come back to it the buildings, so that the law and order could be restored in eastern and southern ukraine.

the russians signed onto the statement. the question now becomes, what will in fact they use the influence they have exerted in a disruptive way to restore order so that ukrainians can carry out an election, move forward with the decentralization reforms they have proposed, stabilize their economy and start getting back on the path of growth and democracy. and that the sovereignty will be respected. we will not know whether in fact there is follow through on the statements for several days. so today i spoke with chancellor merkel. later on today i will speak to david cameron. we will be consulting with european allies. over the past week we have put in place additional consequences we can impose on the russians if

we do not see actual improvement of the situation on the grounds, and we are courting mating now with european allies. my hope is that we actually do see follow-through over the next several days, but i do not think, given past performance, that we can count on that. we have to be prepared to potentially respond to what continues to be efforts of interference by the russians in eastern and southern ukraine. if in fact we do see improvements, then that will obviously be a positive. in the meantime, we will continue to make sure we help the ukrainian government working with the imf and others to stabilize the economy and to start reforming it. we will continue to work with nato allies to make sure they are assured we will meet the article five obligations, and that they are secure. and as i have said before, i

think i had an interview with the major yesterday in which i mentioned, this whole exercise by the russians is not good for russia either. there are a number of articles today indicating the degree to which i'm economy that was artie stuck in the mud is further deteriorating because of actions. in my conversations with president putin, i have emphasized the same thing, that we have no desire to see further deterioration of the russian economy but we will continue to uphold the basic principle and sovereignty of all countries and there is a way for you ukraine to be independent, and have positive relationships at the west and east with both european neighbors and russian neighbors.

that is our primary concern. >> the house majority leader eric cantor said or explained that you have not learned how to work with them and angry you are attacking the gop on back of movement on immigration reform. i was wondering how you respond to that? i've was also wondering where you have hunger strikes across the nation and whether you can make an announcement in the coming weeks to expand the relief for the undocumented. thank you. >> i actually had a pleasant conversation. i did. you are always surprised by the

mismatch between press releases and conversations. i wished him a happy passover. what i said to him privately is what i will say publicly, which is there is bipartisan support for comprehensive immigration reform. it would strengthen the economy, help with security, and would provide relief to families who have lived here for years and to have children and family members who are u.s. citizens. and that congress should act and right now what is holding us back is house republican leadership not willing to go ahead and let the process move forward. so it was a pretty friendly conversation.

i think in his press release i gather he was referring to the observation that was made a day earlier that it had now been a year since the senate have passed a strong bipartisan bill, and although we have heard a lot of talk about the house republicans being interested in doing something, nothing had happened yet. and suggesting we need urgency here. i still feel the same way. i know there are republicans in the house, and in the senate, who know this is the right thing to do. i also know it is hard politics for republicans. because there are some in the base that are very opposed to this. but, what i also know is there are families all across the country who are experiencing great hardship and pain because this is not getting resolved. i also know there are businesses across the country that could be