As I suspected, Justice Scalia did not say he would have dissented in Brown v. Board of Education in 1954. The newspaper account is incorrect and took his remarks out of context.Although Professor Balkin picked up the story and wrote about it, to his credit, from the start, he hedged with phrases like "[i]f the current report is accurate."
The misrepresentation of Scalia's remarks went viral almost instantly, which is the way things go these days. Damage is done, even when the corrections are instantaneous.
This reminds me of those recent fake Rush Limbaugh quotes and the subsequent screw-up by Rush himself propagating some phony Barack Obama quotes. Rush was much better and quicker than his attackers about making a correction, but there's still some controversy about the way he corrected himself:
... I was libeled and slandered by countless members of the media, fabricated quotes, made-up quotes I never stated, never uttered, never wrote, nothing, were repeated all over this country by sportswriters, television cable hosts and so forth. After we proved to them that I didn't do it they retracted it a week later, after the damage, and many of them said, "It still doesn't matter, we know Limbaugh thinks it anyway."Everyone jumped all over that, of course, because he didn't say he was sorry before he did what would be an otherwise justified punch-back at the media for the way they savaged him with fake quotes and withheld even corrections, not to mention apologies. Now, he must know that he screwed up what would have been excellent media criticism by not properly abasing himself first. You can see that he was milking the no sense of humor theme, but these talking heads who hate him are never going to find his sense of humor delightful, and he made it completely easy to portray him as a fool because he didn't first get in a clean apology ritual.
So last Friday, I get a note from a friend who says, "You ought to see what's on this blog." I looked at it, and it was Obama, his thesis from Columbia, "so-called Founders," didn't like what they did with the Constitution, there wasn't enough talk about distribution of wealth and so forth. I said, "Well, this has a ring of truth to it," because we've got Obama on radio from Chicago 2001 complaining about the Supreme Court not doing enough about redistribution. So we ran with it, made a big deal out of it in the first hour. In the second hour, I got a note saying, "Hey, Rush, we looked at this, we can't back this up, we can't find any actual sourcing for this." So at that point I warned the audience that it may not be true, that we are still checking it.
Shortly thereafter I learned that the whole thing was made up, it was a satire piece on an obscure website. Then I said, "Okay, folks, I have to tell you, it's satire, there's no evidence that Obama ever wrote this, but, Media Tweak of the Day, I don't care, I know he thinks it anyway because I've got audio of Obama saying it, talking about the Supreme Court." And we all got a great laugh about it because I corrected it immediately, I explained that it was a hoax, or was satire and then to tweak the media I said, "But I don't care, I'm sticking with it because I know he thinks it anyway." So I dished out to Obama what the whole media did to me and I dished it back at the media as well....