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Lamb's Chapel v. Center Moriches School District (1993)
Issue: Whether the school district violated the First Amendment's freedom of speech by denying Lamb's Chapel after-hours use of school facilities to show religious-oriented films on family values and child rearing.
Date argued: Feb. 24, 1993
Date decided: June 7, 1993
Vote: Free-speech claim upheld, 9-0 (Thomas, J., joined a concurrence by Scalia, J.)
Counsel:
Jay A. Sekulow, for petitioners
John W. Hoefling, for respondents

JUSTICE CLARENCE THOMAS: Counsel, in your earlier discussions with Justice Stevens you indicated that communists would be able to give their perspective on family. I – I assume from that that atheists would be able to give theirs under your rules.

MR. HOEFLING: Yes, Your Honor.

JUSTICE THOMAS: Would an atheist be allowed to debate a minister from a religious perspective under your rules?

MR. HOEFLING: I think that you – we wind up with a situation where if – if the purpose of the debate –

JUSTICE THOMAS: Let's just say it's – the debate is the religious value versus the atheistic value or content of a family, or family from a religious or atheistic perspective.

MR. HOEFLING: I hadn't really given that any thought, Your Honor. It – it seems to me that you, again, begin to bring into play the question of whether or not the – the religious speaker is – is going to use the forum to proselytize their faith.

JUSTICE THOMAS: Well let's say it's an atheist and an agnostic debating one minister.

MR. HOEFLING: And so the question becomes how many people on the part of the –

JUSTICE THOMAS: Well, I'm just wondering which – what is it about the debate that changes when you add a minister to an atheist and an agnostic.

MR. HOEFLING: Again, Your Honor, I submit that the question that we're concerned about is whether or not proselytization is something that starts to happen in the school facility. And –

JUSTICE THOMAS: Well how could that be proselytizing if it's simply two debating one. Let's say 10 atheists debating one minister in front of –

MR. HOEFLING: I don't think the numbers have anything –

JUSTICE THOMAS: – An atheist audience.

MR. HOEFLING: I don't think the numbers have anything to do with that, Your Honor.

JUSTICE THOMAS: Well, I'm trying to move away from the proselytizing and also to move away from a situation in which the minister dominates the discussion.

MR. HOEFLING: I understand, Your Honor. I submit that the school district nonetheless has the right to keep that particular type of activity from occurring because of our concern about religious uses.

JUSTICE THOMAS: So the addition of the minister is a problem, regardless of what the content is or the composition is.

MR. HOEFLING: Yes, Your Honor, under those circumstances I would submit so. Thank you, Your Honor.

JUSTICE THOMAS: Thank you, Mr. Hoefling.

Wisconsin v. Mitchell (1993)
Issue: Whether a Wisconsin statute enhancing a sentence for aggravated battery in a case where the defendant intentionally selected his victim on account of the victim's race violates the First Amendment by punishing what the legislature has deemed to be offensive thought.
Date argued: April 21, 1993
Date decided: June 11, 1993
Vote: Free-speech claim denied; 9-0 (Thomas, J. joined Rehnquist’s majority opinion)
Counsel:
James E. Doyle, for petitioner
Lynn S. Adelman, for respondent

JUSTICE THOMAS: One question, Mr. Adelman.

MR. ADELMAN: Yes, Justice Thomas.

JUSTICE THOMAS: There were 10 individuals involved here?

MR. ADELMAN: That's correct.

JUSTICE THOMAS: Let's assume that five were told to attack a white person and five said they would attack a black person, for whatever reasons. Now, the first five of course would be covered by the statute. Would the second five not be covered?

MR. ADELMAN: The second five – any kind of biased motive would be covered.

JUSTICE THOMAS: The statute says because of race.

MR. ADELMAN: Yes. I think both would be covered.

JUSTICE THOMAS: So where is the bias in the second five?

MR. ADELMAN: The bias is a racial bias. The, you can have a bias against whites or a bias against blacks. Either way is a bias, Your Honor. Either is a viewpoint, and that statute is content and viewpoint-specific. If it punishes, if it's a statute that punishes content and viewpoint-specificity it's subject to strict scrutiny. If the achievement, if that goal can be achieved in another way by a content-neutral alternative, then the state has an obligation to do it and the statute is unconstitutional.

JUSTICE THOMAS: So you're assuming that there's intraracial bias simply because they decided to attack a black person also

MR. ADELMAN: The statute is directed at bias, racial bias.

JUSTICE THOMAS: I understand you said that, but my question is most of your argument seemed to depend, or at least your assessment of bias seems to depend on the interracial nature of the crime. I am putting it in an intraracial context to at least isolate the notion, the existence or non existence of bias. The statute does not refer to bias, so where is the bias on an intraracial basis?

MR. ADELMAN: In order to prove the crime on an intraracial bias under the construction by the Wisconsin Supreme Court the state would have to be shown that there was an intraracial bias. If it was just an assault without a bias – and an intraracial bias is a hard hypothetical to imagine –

JUSTICE THOMAS: So in all the cases that you are aware of the state actually had to prove that there was bias, not simply that this individual was chosen, the victim was chosen because of his or her race, for whatever reason?

MR. ADELMAN: The Wisconsin Supreme Court said that because of meant biased motive. This is a hate crime statute. All of the applications of this statute have been to cases involving bias, and that's an element of the state's burden of proof.

JUSTICE THOMAS: Thank you, Mr. Adelman.

MR. ADELMAN: Thank you.

United States v. National Treasury Employees Union (1995)
Issue: Freedom of speech — Whether the government can prohibit federal employees from receiving compensation for writing and speaking about matters not related to their employment.
Date argued: Nov. 8, 1994
Date decided: Feb. 22, 1995
Vote: No; 6-3 (Thomas, J. joined a dissent by Rehnquist, J.)
Counsel:
Paul Bender, for petitioners
Clarence O’Duden, for respondents

JUSTICE THOMAS: Mr. O'Duden –

MR. O'DUDEN: Yes –

JUSTICE THOMAS: – do you think that the Government could, consistent with the First Amendment, simply ban all moonlighting?

MR. O'DUDEN: I think that that would present a different question. I think it would be a much harder case for us to bring. It's arguable that there may be a due process argument there to be made, depending on what the reasons were for the moonlighting ban, but of course –

JUSTICE THOMAS: Well, you mentioned earlier that there were 25,000 instances in which permission was granted –

MR. O'DUDEN: 2,500 –

JUSTICE THOMAS: 2,500 –

MR. O'DUDEN: – in the GAO report, sir.

JUSTICE THOMAS: Well, that would seem to be a larger problem than the two in which honorariums were involved.

MR. O'DUDEN: I'm not sure that I understand your question.

JUSTICE THOMAS: You mentioned that there were two, only two instances in which there were problems with honoraria.

MR. O'DUDEN: There were problems with respect to speeches, Your Honor, that's right.

JUSTICE THOMAS: That's right, so there seem to be more instances, and I know from my own limited experience in the executive branch that there were more instances of moonlight – cab-driving, outside practice of law, those sorts of things – as opposed to speeches.

MR. O'DUDEN: That's right.

JUSTICE THOMAS: So it would seem to me that the Government would have a stronger case for banning moonlighting than it does for speeches at the civil-servant level.

MR. O'DUDEN: Arguably. I don't want to suggest that the GAO report concluded that there was a moonlighting problem in the Federal work force, but of course, what we have here is not a statute that is a ban on moonlighting, it is a law that singles out only speech activities and I think, as this Court's precedent makes quite clear, when a law singles out speech activities, that, by definition, makes it suspect. Unless there are further questions -

JUSTICE THOMAS: Would it have the – would you have a First Amendment problem with a total ban on moonlighting?

MR. O'DUDEN: I think that would be a difficult argument to make, because the Court's decisions indicate that laws of general applicability do not lend themselves, at least not very readily, to a First Amendment challenge.

JUSTICE THOMAS: And you – but it would have no less of an effect on speech, on honorariums, than the current law?

MR. O'DUDEN: The problem, again, is that a law like that would not be singling out speech. I think that the Court has –

JUSTICE THOMAS: But would there be a different effect on speeches by Federal employees from this law. This law simply says –

MR. O'DUDEN: If there were a flat-out moonlighting ban?

JUSTICE THOMAS: This law simply says –

MR. O'DUDEN: No.

JUSTICE THOMAS: – you can't get paid for speeches and articles, right?

MR. O'DUDEN: That's right.

JUSTICE THOMAS: A total ban on moonlighting simply says, with respect to this class of plaintiffs, that you can't get paid for speeches and articles.

MR. O'DUDEN: Or anything else.

JUSTICE THOMAS: So is there a different impact?

MR. O'DUDEN: No, there is no different impact.

JUSTICE THOMAS: So the Government can solve its First Amendment problem simply by banning all moonlighting.

MR. O'DUDEN: Perhaps. I think that there is some suggestion, maybe, from this Court's earlier precedent, the Murdock case, that you might be able to make a First Amendment challenge, but again, this Court has treated in a special way statutes that single out speech activities. We've seen it do so in cases like Minneapolis Star and, of course, the Arkansas Writers Project, so it is no defense for the Government to say that it could pass a moonlighting statute, because that is not what it has done here. Thank you very much for your time.

Capitol Square Review Board & Advisory Board v. Pinette (1995)
Issue: Freedom of speech/freedom of religion – whether a private party has the right to display an unattended religious symbol in a traditional public forum, even if the forum is located next to a government building.
Date argued: April 26, 1995
Date decided: June 29, 1995
Vote: Yes; 7-2 (Thomas, J. concurring)
Counsel:
Michael J. Renner, for petitioner
Benson A. Wolman, for respondents

JUSTICE THOMAS: Mr. Wolman – I hate to interrupt you, but I'd like to ask just a couple of questions, if I may. You say that this is a religious symbol. What is the religion of the Klan?

MR. WOLMAN: The Klan members hold themselves out in this record as Christians. They hold themselves out as the symbol being not just a symbol of their faith, but a symbol of history, a symbol of history that many of us may find, at the very least, disquieting. Nonetheless, it reflects a symbol of the Confederate cross, the Scottish clans of the 1300s – it's not just a religious symbol. It has a variety of meanings, as do most types of symbols.

JUSTICE THOMAS: But I think the argument – the reason I ask is so much of the argument is based on the assumption that this cross is a religious symbol. Now, is there testimony to the effect that it is a religious symbol.

MR. WOLMAN: There is testimony as to the mixed purpose, and indeed, not just testimony, but the disclaimer itself specifically recited – it's at page 12 of our brief in chief. The disclaimer itself specifically said it was to express respect for the holiday season and to in fact test the government of the State of Ohio, challenge them over their discriminatory application, granting the application of the menorah.

JUSTICE THOMAS: Well, if it has a – and I don't know what the mix is. Let's say, 50-50, 50 whatever other reasons, and 50 religious, then how does that become a free exercise problem?

MR. WOLMAN: Well, we believe that free exercise is not a problem. We believe that –

JUSTICE THOMAS: Well, I mean, it's a problem in this case.

MR. WOLMAN: In this case, the State is asserting that the Establishment Clause bans it, and we think they're totally off-base in doing it.

JUSTICE THOMAS: Well, now, with that said, what is – what does a burning cross symbolize?

MR. WOLMAN: A burning cross, I believe, would symbolize the general orientation of the Ku Klux Klan against racial minorities, not just you, ethnic minorities, myself and others, a whole variety of purposes.

JUSTICE THOMAS: So there are some people – as I understand the record, there were some concerns that some of the citizens of Columbus, when they saw that, could actually see fire on that cross.

MR. WOLMAN: Could see fire, you mean figuratively?

JUSTICE THOMAS: That's right.

MR. WOLMAN: Perhaps some could. The record here indicates, though, there were no security issues. The judge specifically –

JUSTICE THOMAS: But doesn't the record suggest, though, that there was some concern that people would see more than the religious symbol in that cross?

MR. WOLMAN: Yes, I think that's true, and that's a political message, and one very much protected by the Free Speech Clause.

JUSTICE THOMAS: But that message doesn't implicate the Establishment Clause.

MR. WOLMAN: We believe not. The political message does not.

JUSTICE THOMAS: Do you think that the political – with respect to the cross, that the political message for the Klan overwhelms the religious free exercise considerations, that if someone – if I said that a member of the Ku Klux Klan is carrying a cross down Pennsylvania Avenue, would the average person, or the reasonable person, think that – that, that the Klan is engaged in an exercise of religion, or a political statement?

MR. WOLMAN: My own personal views, but not in the record, are that I would view it as mostly a political statement, but we – and in fact we believe that the State has used the Establishment Clause as a make-weight in this matter. The Establishment Clause is not irrelevant, but we think that it has been –

JUSTICE THOMAS: So we're shoe-horning a political case into the religious component of the First Amendment.

MR. WOLMAN: We believe the State has done just that. Thank you, Mr. Chief Justice.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Wolman.

Lorillard Tobacco v. Reilly (2001)
Issue:Date argued: April 25, 2001
Date decided: June 28, 2001
Vote: Yes; 5-4 (Thomas, J., concurring)
Counsel:
Jeffrey S. Sutton, for petitioner
William W. Porter, for respondents

JUSTICE THOMAS: General Underwood, just one assumption. Let's assume that it can be demonstrated that eating regularly at fast food joints, including McDonald's, causes health problems throughout life for kids, would you give me the principle in your reasoning that would prevent the State of Massachusetts from similarly restricting advertising by McDonald's –

GENERAL UNDERWOOD: Yes. The –

JUSTICE THOMAS: – that is directed exclusively to kids?

GENERAL UNDERWOOD: Yes. The principle, as I understand your hypothetical, is that – is a distinction between a wide variety of possible health dangers and a health danger of unparalleled magnitude that – for which the window of time between 14-1/2 and 18 is the critical window. It's the average – the evidence is that the average child begins smoking at 14-1/2, and that very few people begin after 18, and that the product is addictive, so if you have a 14-1/2-year-old child, as I do, and you can get that child to 18 without –

JUSTICE THOMAS: Thank you, General Underwood. I think you've answered the question.

Virginia v. Black (2003)
Issue: Whether a state statute that prohibits the burning of a cross with the intent of intimidating any person or group of persons, impermissibly infringes upon freedom of speech and is unconstitutional on its face because it prohibits otherwise permitted speech solely on the basis of its content.
Date argued: Dec. 11, 2002
Date decided: May 7, 2003
Vote: Yes; 7-2 (Thomas, J. dissenting)
Counsel:
William H. Hurd, Esq., state solicitor, for petitioner; Michael R. Dreeben, Esq., deputy solicitor general, Department of Justice, Washington, D.C., on behalf of the United States, as amicus curiae, for petitioner
              Rodney A. Smolla, for respondent

JUSTICE KENNEDY: Was ... was there a common law of intimidation, a tort ... a tort that went beyond assault?

MR. DREEBEN: – There is a common law of ... of putting somebody in fear of bodily harm through the tort law. And there were similarly antecedent criminal provisions that are –

JUSTICE KENNEDY: Is there ... is there an immediacy component to that as there is with assaults?

MR. DREEBEN: – No, there is not, Justice Kennedy, and it's crucial to underscore why that is. The harms that can be brought about by threat statutes are not only putting somebody in fear of bodily harm and thereby disrupting their movements, but providing a signal that the violence may actually occur. It may not occur tomorrow, the next day, or next week, but it's like a sword of Damocles hanging over the person whose head ... who has been threatened. And in that sense it creates a pervasive fear that can be ongoing for a considerable amount of time.

JUSTICE THOMAS: Mr. Dreeben, aren't you understating the ... the effects of ... of the burning cross? This statute was passed in what year?

MR. DREEBEN: 1952, originally.

JUSTICE THOMAS: Now, it's my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and ... and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror. Was ... isn't that significantly greater than intimidation or a threat?

MR. DREEBEN: Well, I think they're coextensive, Justice Thomas, because it is –

JUSTICE THOMAS: Well, my fear is, Mr. Dreeben, that you're actually understating the symbolism on ... of and the effect of the cross, the burning cross. I ... I indicated, I think, in the Ohio case [Capitol Square Review & Advisory Board v. Pinette (1995)] that the cross was not a religious symbol and that it has ... it was intended to have a virulent effect. And I ... I think that what you're attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is unlike any symbol in our society.

MR. DREEBEN: – Well, I don't mean to understate it, and I entirely agree with Your Honor's description of how the cross has been used as an instrument of intimidation against minorities in this country. That has justified 14 States in treating it as a distinctive –

JUSTICE THOMAS: Well, it's ... it's actually more than minorities.

Unidentified Justice: There's certain groups.

JUSTICE THOMAS: And I ... I just ... my fear is that the ... there was no other purpose to the cross. There was no communication of a particular message. It was intended to cause fear –

MR. DREEBEN: – It –

JUSTICE THOMAS: – and to terrorize a population.

MR. DREEBEN: – It absolutely was, and for that reason can be legitimately proscribed without fear that the focusing on a cross ... burning of a cross with the intent to intimidate would chill protected expression. This is a very different case than the R.A.V. case that was before the Court. There the Court was confronted with a statute that prohibited the use of language based on particular messages of group-based hatred. And in singling out speech based on the content, the State was expressing disagreement with particular messages. In the Virginia statute, and in the other statutes that the States have, the focus is not on any particular message. It is on the effect of intimidation, and the intent to create a climate of fear and, as Justice Thomas has said, a climate of terror.

JUSTICE SOUTER: So your argument would be the same even if we assumed that the capacity of the cross to convey this message was limited to certain groups, blacks, Catholics, or whatnot.

MR. DREEBEN: I would, Justice Souter, and I think it's for the reason that Your Honor pointed out in his concurrence in Hill versus Colorado. Merely because a particular activity might have become the signature of a certain ideological group does not prevent the State from addressing and regulating what is proscribable about that activity.

JUSTICE STEVENS: But it seems to me from this argument, if the message is as powerful as Justice Thomas suggests it is ... and I'm sure he's ... he's right about that ... why is it necessary to go beyond the message itself? Why ... why wouldn't it still be proscribable even if the person burning it didn't realize all of this history, just did it innocently, but it nevertheless had that effect?

MR. DREEBEN: Well, that would –

JUSTICE STEVENS: Why do you need the intent?

MR. DREEBEN: – I think that would raise a much more difficult question because notwithstanding the fact that there is a very powerful linkage in our society such that the State is justified in singling out the cross, it may be that under certain contexts, a particular individual is attempting to express a message rather than attempting to intimidate. And it ... it is important to note that merely expressing a message of race-based hatred is not something that the State can proscribe –

JUSTICE SCALIA: Surely ... surely one can burn a cross in the sanctity of one's bedroom. Right?

Unidentified Justice: [Laughter]

MR. DREEBEN: – There ... there are ... there are hypothetical cases that one can imagine, the desert, the bedroom –

JUSTICE STEVENS: No, but my assumption is that the geographic scope of the statute is just like this statute. It doesn't apply to your own property, but on anyone else's property, or in public view. ...

Johanns v. Livestock Marketing Association (2005)
Issue: Commercial speech – Did the 8th Circuit err in holding that the 1985 Beef Promotion & Research Act, and regulations promulgated thereunder – which impose assessments on beef producers and importers to fund research, education, and promotional activities carried out by special administrative bodies created by Congress for the express purpose of furthering important government objectives under direct supervision of Secretary of Agriculture – are unconstitutional and unenforceable?
Date argued: Dec. 8, 2004
Date decided: May 23, 2005
Vote: Yes, 6-3 (Thomas, J. concurring)
Counsel:
Edwin S. Kneedler, deputy solicitor general, and Gary Garre (in 03-1165), for petitioners
Laurence H. Tribe, Esq., for respondents

MR. TRIBE: We would object, fundamentally, if they did not emphasize American beef. That was our first objection. They said that they don't want to emphasize American beef, because, in cross-examination, the officer of the Beef Board said, "Consumers might actually have a preference for American beef. That would be irrational. We don't want that.” And so all of those cattle ranchers can say that, "We're proud of [its] being American.” They can't get that in there. And the other principal thing is that they don't think of themselves as selling sides of beef. Some of them are selling dairy cattle, some of them are selling ... even if it's going to, in the end, be in the slaughterhouse ... we all die someday ... their fundamental belief is that these are animals, and they're to be cared for. And the reason that that makes a difference ... the reason that it makes a difference is, they can't even advertise ... try to make live cattle more attractive to buy ... is that the collective-action problem, if that were relevant here ... I think that was really resolved by United Foods ... but the collective-action problem is really created, not solved, by what they're doing. Because the structure of the market is that there are a few concentrated meat-packers. Something like four slaughter 80 percent of the ... of the cattle in the United States. They have the bargaining power. And in the record, their support for the findings of the District Court, that when the demand for beef goes up through these generic ads saying, ["] ... although they certainly don't say, “Your government says you should eat beef, beef, beef.” – But when the demand for beef goes up, the profit is pocketed by the meat processor, the meat packer, the restaurant, the supermarket. And these guys still end up taking their cattle to market, and often having to pay a dollar checkoff, even though they can't even get the price of the ... of the cattle back. So –

JUSTICE BREYER: But would it –

MR. TRIBE: – the free rides are now taken by the people who don't pay –

JUSTICE BREYER: – seems to –

JUSTICE THOMAS: – don't pay anything.

JUSTICE BREYER: – I understand that a person could have an ideological objection to the content of the ad. But the ad, itself, is an effort by government, in this area, to regulate a commercial matter, not a license plate that says, ["], or ["] –

MR. TRIBE: – But it regulates speech, Justice Breyer.

Alyssa Work is an intern at the First Amendment Center.