Cite as: 530 U. S. 428 (2000)
Scalia, J., dissenting
In a footnote, the United States directs our attention to certain overprotective First Amendment rules that we have adopted to ensure "breathing space" for expression. See Gertz v. Robert Welch, Inc., 418 U. S. 323, 340, 342 (1974) (recognizing that in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), we "extended a measure of strategic protection to defamatory falsehood" of public officials); Freedman v. Maryland, 380 U. S. 51, 58 (1965) (setting forth "procedural safeguards designed to obviate the dangers of a censorship system" with respect to motion picture obscenity). In these cases, and others involving the First Amendment, the Court has acknowledged that in order to guarantee that protected speech is not "chilled" and thus forgone, it is in some instances necessary to incorporate in our substantive rules a "measure of strategic protection." But that is because the Court has viewed the importation of "chill" as itself a violation of the First Amendment—not because the Court thought it could go beyond what the First Amendment demanded in order to provide some prophylaxis.
Petitioner and the United States are right on target, however, in characterizing the Court's actions in a case decided within a few years of Miranda, North Carolina v. Pearce, 395 U. S. 711 (1969). There, the Court concluded that due process would be offended were a judge vindictively to resentence with added severity a defendant who had successfully appealed his original conviction. Rather than simply announce that vindictive sentencing violates the Due Process Clause, the Court went on to hold that "[i]n order to assure the absence of such a [vindictive] motivation, . . . the reasons for [imposing the increased sentence] must affirmatively appear" and must "be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id., at 726. The Court later explicitly acknowledged Pearce's prophylactic character, see Michigan v. Payne, 412 U. S. 47, 53 (1973). It is true, therefore, that the
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