In Justice Thomas’s Supreme Court confirmation hearings, which lasted from Sept. 10 through Sept. 16, 1991, senators on the Judiciary Committee asked Thomas about aspects of his First Amendment jurisprudence ranging from the establishment clause to employee speech and making federal funds contingent on free-speech restrictions.

Thomas was far from outlining a clear First Amendment vision, although he gave some inkling of his strong future views on commercial speech and on the establishment clause during the hearings.

Following are transcripts of questions and answers, arranged by topic.

Senate Judiciary Committee
Chairman: Sen. Joseph R. Biden Jr., D-Del.

Members:
Hank Brown, R-Colo.
Dennis DeConcini, D-Ariz.
Charles E. Grassley, R-Iowa
Orrin G. Hatch, R-Utah
Howell Heflin, D-Ala.
Edward M. Kennedy, D-Mass.
Herbert Kohl, D-Wis.
Patrick J. Leahy, D-Vt.
Howard M. Metzenbaum, D-Ohio
Paul Simon, D-Ill.
Alan K. Simpson, R-Wyo.
Arlen Specter, R-Pa.
Strom Thurmond, R-S.C.

FREEDOM OF RELIGION

Sept. 10, 1991

SEN. THURMOND: Judge Thomas, in an opinion written last year by Justice Scalia concerning the First Amendment’s freedom of religion, the Supreme Court ruling in Employment Division v. Smith, that a law which is otherwise valid does not violate the First Amendment if it ncidentally affects religious practices. Would you please briefly discuss the impact this decision has on the compelling-state-interest test established in Sherbert v. Verner in 1963?

JUDGE THOMAS: Of course, Justice Scalia’s decision was, in essence, that since the general criminal statutes outlawed the use of peyote, I think in that case, that one could not claim that it was a violation of their First Amendment to exercise their religious beliefs, that this preclusion by statute had occurred or that you could not use it in a religious exercise of any sort or religious celebration. What Justice Scalia did was actually use a different test than had been used in the past. He avoided using the Sherbert test. Justice O’Connor used the compelling-interest test, she used the Sherbert test and reached the same result, if I remember the case right. I think it is an important departure from prior approaches and it’s one that anyone who approaches these cases should be concerned about or at least be watchful for.

Sept. 13, 1991

SEN. JOE BIDEN: In my view, these rights deserve the highest level of protection by the Court, and I’d like to start first with the free-exercise clause of the First Amendment, which provides, as you well know, “Congress shall make no law prohibiting the free exercise of religion.” Now until last year, the Supreme Court applied the standard known as “strict scrutiny” when reviewing legislation that restricted religious practice. Under the strict-scrutiny standard – we’ve discussed it a number of times here, but it bears repeating – the state first needed a compelling reason for restricting the religious practice, and second, the state had to show that no other alternatives were available for it, the state, to achieve its goal. It’s been a test now for about 40 years, 35 years, a two-prong test.

Under this doctrine, the Supreme Court held, for example, that the compulsory education law could not be used, for example, to require Amish children to attend school when their parents believe they had a religious duty to educate – be educated at home, the Yoder case, Wisconsin v. Yoder. The Court reasoned that even though the state was acting – wasn’t acting out of any hostility and even though the state had a compelling reason for making children attend school in general, in Yoder they held that state law could not constitutionally be applied to the Amish because there was, quote, “no compelling reason for abridging their religious freedom to educate their children.”

Then, last year, the Supreme Court decided the case of the Employment Division of Oregon v. Smith. In the Smith case, the Court held that the free-exercise clause permits the state to prohibit sacramental use of peyote – I think that’s how it’s pronounced. Is that correct? Never having used it, I’m not sure of the pronunciation. Peyote. It’s a drug used in an Indian ceremony. It’s an – and it’s been used historically by them. And thus, a state could deny unemployment benefits to those who were discharged from employment for such use.

Now, I don’t want to discuss the specific facts of the case nor its specific outcome. Instead, I want to ask you about your understanding of the reasoning the Court used in this case.

Justice Scalia, writing for a 5-4 majority, concluded that as long as the government is not specifically trying to restrict religion or as long as it’s not trying to discriminate against religion, it can apply a general law against a religious activity and it doesn’t matter what effect the law has on that religion. In a sense, striking down what historically – not historically, the last several decades, has been the second test needed to be passed in order for the state to be able to take such action. In other words, even if the law passed by the government has a devastating impact upon a religious practice, the law is still constitutional, according to the majority, Scalia writing for them, it is still constitutional so long as the government acted with a legitimate purpose when it passed the law.

Now, Justice O’Connor, on the other hand, said she would have upheld the ban on peyote without changing the legal test that has historically been applied, without abandoning the strict-scrutiny test. Now, Judge, which approach do you agree with? Not whether or not it should be outlawed or not outlawed. That’s not the issue, as far as I’m concerned. Do you agree with Scalia’s approach or do you agree with O’Connor’s approach?

JUDGE THOMAS: Senator, I think, as I indicated in prior testimony here, that when the Sherbert test was abandoned or moved away from in the Smith case, I think that any of us who were concerned about this area, because as we indicate, I think we all value our religious freedoms. And I think that there was a proper and appropriate reason for concern. And I did note, then, that Justice O’Connor, in applying the traditional test reached the same result.

I cannot express a preference. I’ve not thought through those particular approaches. But I, myself, would be concerned that we did move away from an approach that has been used for the past, I guess, several decades.

SEN. BIDEN: Well, Judge, I asked the same question to our most recent justice, and Justice Souter had no problem telling me that he agreed with the O’Connor approach. I don’t care which approach. You obviously know the area well. You obviously know the facts of the cases. You obviously have an intense and deep commitment to religion and your faith in God. You mean to tell me you haven’t thought when this came out whether or not – which approach you thought was appropriate?

JUDGE THOMAS: Let me restate my answer.

SEN. BIDEN: OK.

JUDGE THOMAS: My concern would be that the – without being absolutist in my answer – my concern would be that the Scalia approach would lessen the – could lessen religious protections.

SEN. BIDEN: Well, Judge, as a matter of fact, it does. It’s not whether it could or should. It may not be – I mean, it does. There’s a – there is – the limits to protection, for example, in the case – I guess it was in – what was it in? New Mexico? In New Mexico, where they passed a law saying minors can’t drink wine under any circumstances. As you know, in our church, in many churches there’s a sacramental taking of wine at communion, and you are able to – in most churches that occurs – in most Christian religions, and I can’t speak for others – occurs when the kids are seven years old or eight years old, and it impacts significantly. And so, you know, it was struck down, that restriction, in New Mexico and never got up to the Supreme Court, to the best of my knowledge. But clearly, under the test applied by Scalia, such a law could be passed and it would be held constitutional. It has a big impact. It’s a big deal, not a minor thing.

JUDGE THOMAS: And I guess my point is my – our concerns are the same, that any test which lessens the protection, I think, is a matter of concern. The point that I’m making, though, in not being absolutist, is that I think it’s best for me as a sitting federal judge to take more time and to think that through, but my concern about the approach taken by Justice Scalia is that it may have the potential and could have the potential of lessening protection. And I think the approach that we should take, certainly, is one that maximizes those protections.

SEN. BIDEN: Judge, you know, when your confirmation is over and if you’re on the bench and you’re on the bench when the next nominee comes up – they now talk about the Souter standard, how Souter didn’t answer questions that some suggest he should or shouldn’t have – I’m not making a judgment on that – we’re going to have a new standard, the Thomas standard, which is you’re answering even less than Souter.

Establishment

Sept. 12, 1991

SEN. KOHL: All right. Judge, I’d like to briefly follow up on Senator Simon’s church-state questions. During your appellate court confirmation hearing, we discussed your views on school prayer and asked you about your 1985 statement where you said, “As for prayer, my mother says that when they took that out of the schools, the schools went to hell. She may be right. Religion certainly is a source of positive values and we need to get as many positive values in schools as possible.”

You said that was your personal view but of no consequence, that as an appellate judge you would be bound to follow Supreme Court precedent.

Now, however, you’re being considered for the Supreme Court and you will be in a position to set precedents, so your personal views are of great consequence.

So, we’d like to ask you this. The Supreme Court has repeatedly ruled that prayer in the schools violates the First Amendment. Given your statement in 1985, could you explain your views on prayer in school today?

JUDGE THOMAS: Senator, as I indicated yesterday, my comments there were not taken to in any way reflect on the legal rulings on the establishment clause or the free-exercise clause. As I indicated yesterday, that from my standpoint, as a citizen of this country and as a judge, that the metaphor of the Jeffersonian “wall of separation” is an important metaphor. The Court has established the Lemon test to analyze the establishment-clause cases and I have no quarrel with that test. The Court of course has had difficulty in applying the Lemon test and is grappling with that as we sit here, I would assume, and over the few years – past few years. But the concept itself, the Jeffersonian “wall of separation,” the Lemon test, neither of those do I quarrel with.

SEN. KOHL: All right. In your view, Judge, what is the current state of the law with regard to the establishment clause of the First Amendment?

JUDGE THOMAS: The Court now, in the application of the Lemon test – and that is that there be no – that there be a secular purpose to the legislation or the action, that there be no primary sectarian effect and that there be no unnecessary entanglement of government in the affairs of religion, it has been difficult for the Court, as I noted to apply.

The Court has been split between, I think, those who feel that there should be some accommodation and those who think there should be an absolute separation. Justice O’Connor, of course, has offered some movement in the area as well as Justice Kennedy, I think, has applied a coercion test.

I think the judges are grappling at the – when church and the government are inexorably in contact with each other, how much separation can there be and how do you draw the line?

I think it’s difficult, but it’s been difficult for the Court. We see it in the cases with the Christmas displays. The Court has not resolved it, but I think the analysis, the Lemon test as well as the understanding that the separation must be there is important. But in practice it’s difficult.

FREEDOM OF EXPRESSION

Sept. 11, 1991

SEN. GRASSLEY: There may be a trend away from judicial activism, but I don’t think we’ve seen the last of it. I’d like to draw your attention to some recent cases in which district judges engaged in judicial activism.

The first is a case that arose in a New Jersey federal court. It was Morristown. The public library board of trustees issued regulations designed to ensure that the library did not become home to vagrants. The regulations required that patrons use the library as it was intended to be used – that is, for reading, studying, or using library material. So the court struck down the library’s regulation saying that everyone has a right to receive ideas, and the library cannot restrict access.

There was a New York federal judge just this past June who found that panhandling might be protected speech under the First Amendment, and this was despite the fact that a Second Circuit ruling to the contrary from last year.

Now, I realize that you’re going to be reluctant to comment on the merits of these cases since such issues could come before the Supreme Court, but I hope – and I suppose this is more of a statement than question – no, I guess I’d really want it to be a question. Can you see these as examples of a court’s usurping the function of legislative bodies in making, rather than applying or interpreting law?

JUDGE THOMAS: Senator, unfortunately, I don’t know the full facts in those cases, and I think it would be inappropriate for me to try to comment on those particular cases. But let me just simply say this, that I think that we all, as judges, should be concerned and should be aware or at least be cautious not to move into areas that are best left to the – as I said, the political branches and to the legislature. But those specific cases, I simply don’t know the details of them, and I think, even if I did, it would be inappropriate to comment on them.

SEN. GRASSLEY: OK. Maybe it is, but let me make this point to you to think about, then, whether or not those cases might not be inconsistent with a point you made in that ’87 CATO Institute talk where you stated, and quote, “Maximization of rights is perfectly compatible with total government regulation, unbound by notions of obligation and justice; the desire to protect rights simply plays into the hands of those who advocate a total state. The rhetoric of freedom (license really) encourages the expansion of bureaucratic government.”

My time is up. I just want to leave the subject with a quote from Felix Frankfurter on the role of judges. He found that the duty not to enlarge his authority to be one of the greatest challenges of being a judge. He continued, and let me quote probably about 40 words, “that the Court is not the maker of policy but is concerned solely with the question of ultimate power as a tenet by which all justices have subscribed, but the extent to which they have translated faith into works probably marks the deepest cleavage among the men who have sat on the Supreme Court. The conception of significant achievement on the Supreme Court has been too much identified with largeness of utterance and too little governed by inquiry into the extent to which the judges have fulfilled their role in the American constitutional system.”

I hope I see your confirmation bringing to the Supreme Court one more person like Felix Frankfurter, who’s going to be looking at and inquiring into the extent to which the judges have fulfilled their role in the American constitutional system.

Thank you, Mr. Chairman.

Government funding contingent on speech restriction

Sept. 13, 1991

SEN. LEAHY: Let me ask you about some of the recent cases that have occurred since you were in law school.

One, of course, very recent one: Rust v. Sullivan. And that was a case where the Court upheld the regulations prohibiting abortion counseling or referral in the Title X family-planning program.

Now, I’m not going to ask you to go into the particulars of that case, because it’s still a matter of some controversy, but I’d like to go into some of the issues raised about it. One is whether the government can require recipients of federal funds to express only those views that the government finds acceptable – in any broad area, and I’m obviously thinking of some of the First Amendment ramifications.

I mean, let me – let me make some specific examples, and these are not cases that are about to come up before the Supreme Court, so let’s talk just in the abstract. Suppose the government wanted further policy participation in the political process. Could they give out subsidies limited just to people who say that they will vote Republican or just to people who say they vote Democrat? Could they do something like that?

JUDGE THOMAS: Senator, I would – I certainly couldn’t absolutely answer that. I would be concerned that if the government could do that, it certainly would seem to me to be an interference with the way – the freedoms that we would expect in our political processes, as well as the way that we think that we can function as citizens in this country.

SEN. LEAHY: Well, let’s go to another example. Suppose the government – we could have a government policy that we want to protect the public from sexually explicit material. So we say, “If you’re a library and you receive public funds, well, then, you can’t have a certain list of books. You can’t have Alice Walker’s The Color Purple. You can’t have J.D. Salinger’s Catcher in the Rye available.” Could we do something like that?

JUDGE THOMAS: Again, Senator, I would have the – the same concern. I think the – that the underlying problem that the Court has wrestled with, and certainly in using the receipt of federal financial assistance to, in some way, determine what policies would be, that this body would have to wrestle with, also.

I think that the – the first that those sorts of issues arose, to my knowledge, in a general way, would have been in the Grove City case, where there were some concerns – at least the argument may have been raised by the educational institutions, and the court disposed of it.

But the concerns will always be whether or not the government is conditioning the exercise of our constitutional rights or the exercise of – the engaging of conduct that we think that we’re free to engage in in this society on the receipt of federal financial assistance.

SEN. LEAHY: Well, we – you understand and you accept, of course, the fact that there are times when the demonstration of government policy or the requirement of government policy can conflict with the basic constitutional rights of freedom of speech?

JUDGE THOMAS: I think that –

SEN. LEAHY: I mean, this has happened in our history, certainly, over and over again, has it not?

JUDGE THOMAS: I think that, particularly, Senator, with the significant involvement today of government in virtually every aspect of our lives, that the potential conflict of – between the government’s policies or between the government and rights that we consider fundamental to us or rights that we have considered – those that we’ve been free to exercise, whether that conflict – there’s more of a potential for that conflict today, and I think that we all have to be on guard when the occasions arise when the conflicts are such that fundamental rights are in ways – are either denigrated or conflicted or undermined or interfered with in some way.

SEN. LEAHY: Well, we have – you mentioned that the – some of these issues that we have to wrestle with here in the Congress, but there is more and more of a feeling that we’re going to send money – federal taxpayers’ money – we’re going to put strings on it. Some of those strings can, I think most people would accept, make – make sense. Certainly if we put accounting strings, you’ve got to account for where the money goes – I don’t think anybody disagrees with that. If you say road-building funds must be used for – for road-building and not for something entirely different, we understand that.

But what happens when you go to the next step and say, “OK, we’re going to send money for a – we’re going to send money for a significant purpose, and, by gosh, we’re going to tell you how to think if you use that money”?

For example, if the government says, “We’re in favor of – of nuclear families,” fine. Good statement of policy. But then, do we also say now to any college receiving federal funds, as most do in one way or another, “You can’t include information in the sociology course on – on divorce”– or illegitimacy or homosexuality or heterosexuality, whatever, “because we feel it will interfere with this policy.” Can we do that?

JUDGE THOMAS: Senator, I think that as you move more into freedoms that we consider fundamental, I think that, as I have noted earlier, that the conflict becomes more accentuated, and I think the conflict becomes more evident. And to my knowledge the –in those kinds of instances, the Supreme Court has to wrestle with whether or not the government has – if it’s a fundamental right involved, for example, whether or not the government has a compelling interest in doing that.

The – I understand the concern, but I can’t, in each specific instance, say that I can resolve the problem or the specific problem.

But I would have deep concerns myself if someone said that, in order to receive financial assistance, you’re going to have to conduct your life in a particular way.

SEN. LEAHY: Well, what standards – what I’m thinking of is this, Judge. What standards does the court use – because you’re going to become the arbiter in such things – if Congress sits down and says, “Here’s – here’s our money for a good use” – education, health, research, whatever, “but, in effect, we’re also going to tell you, based on whatever congressional mandate might be” – a 51-vote mandate, maybe, in the Senate or – or more – “we’re going to tell you how to think.”

Now, when that happens – when that happens, if the Congress does that, the people are going to resort to the courts. Now, I’m not asking you to prejudge a lot of cases, but what basic standard – if you were to lay out – if you looked at a case like that, we’ve sent money for a very valid reason, let’s take health care or education, but we’ve said, “Here is what you can talk about. Here’s what you can’t talk about. Here’s what you can read and here’s what you can’t read”?

What standards would you, as a judge, use to develop – to determine whether we have just set aside the First Amendment?

JUDGE THOMAS: Senator, the – that’s, I guess, generally – and we’re talking, I guess, in the very general terms – if the right involved, of course, is a fundamental right, of course the appropriate test would have to be the demonstration by the government that there is a compelling interest in–some way infringing on that fundamental right.

But let me underscore one other point that does not quite get to that and that would be a part of any analysis. When this body expresses its intent to regulate a particular area, or to provide assistance in a particular area, that is accomplished in the administrative agencies. When those agencies develop their regulations in the areas that do not touch upon, do not involve the fundamental rights, of course we would have to defer to some extent to the agency, and certainly to the intent of the reasonableness of the agency’s regs, and certainly the intent of this body. The separate test that I mentioned initially is to the extent that it does infringe upon a fundamental right, I think the Court would have to undergo the standard kinds of analysis involving the compelling-interest test, for example. In other words, hold the government to the very highest standards to show why it can – or why it has an interest in infringing on these rights.

Sept. 16, 1991

SEN. ARLEN SPECTER: Judge Thomas, if you are confirmed and you join the current revisionist Supreme Court, and I call it a revisionist Supreme Court as opposed to a conservative court because the current Court has gone beyond the conservative judgments – illustrative the unanimous opinion of Chief Justice Burger in the Griggs Court – and is a revisionist Court now, I think.

I would ask if you would be philosophically attuned more to the Justice O’Connor line or the Justice Scalia line? And I will deal with two cases for illustrative purposes.

When I had finished my questioning my time ran out on the second round. I had been asking you about Rust v. Sullivan. And in Rust v. Sullivan, Justice O’Connor dissented. That was the case where you had a regulation by the Department of Health and Human Services which had stood from 1971 to 1988, and then it was changed. And the Supreme Court upheld its change on a variety of grounds, which I had specified in my last round. But the one which struck me the most peculiarly was the ground that it is appropriate to change a regulation when it is in accord with the shift in attitude. And that had related in part to your compliment of Justice Scalia in your Creighton speech where he had referred to political considerations of changes in regulations.

Justice O’Connor, on the other hand, voted to uphold the original regulation and to strike down the new regulation because, as she put it, it would raise serious constitutional problems and would constitute a serious First Amendment concern. And I would ask whether you would side with the O’Connor branch or the Scalia branch of the revisionist Court?

JUDGE THOMAS: Senator, I, without reference to Rust, I think as I attempted to explain when we addressed this last week, Chevron v. USA involved an instance in which EPA changed its regulation, an existing regulation concerning the bubble concept. That was a concept that was hotly contested and EPA had adopted a regulation rejecting the bubble concept, as I remember it. Subsequent to that, EPA revisited the concept and adopted it. And the question was whether or not this new regulation was a reasonable interpretation of EPA’s underlying statute, or the statute in that case. And the Court held that it was indeed and upheld the regulation.

That is generally the existing law and with respect to deference to agencies' reasonable interpretations in the administrative law area.

Whether or not that is easily transported to the difficult case that you’ve just mentioned or is easily reducible to an instance in which there seems to be just a change in, as you say, shifts in political – shifts of attitudes, and whether shifts of attitudes would constitute a reasonable basis for making such a change, or that shift in attitudes comports with a reasonable interpretation of the underlying statute is, I think, a totally different question.

But the point that I’m making is simply that the Supreme Court has permitted, in the leading case of the administrative law area, has permitted there to be a change of regulations by the agency even when the existing regulation had been in place for some time.

SEN. SPECTER: Judge Thomas, in Rust v. Sullivan, the Court concluded that the regulation was acceptable, saying that “the regulations simply ensure that appropriate funds are not used for activities, including speech, that are outside the federal program scope. That ruling gives me enormous concern. It has given many, many people in this country enormous concern in light of the very extensive federal rule on funding. So that if you have a federal program which is funding a given activity and you say that no one can speak in opposition to that program, there is an enormous latitude for restricting freedom of speech.

And my question to you is, do you think that it is appropriate, when there is federal funding involved, to limit speech when that speech is outside the federal program scope?

JUDGE THOMAS: Senator, I think that in this case with respect to the question, the underlying question in Rust v. Sullivan, that I think it would be, from my standpoint, moving too far to comment on the underlying issues. As I’ve indicated in other instances, Senator, in these difficult cases, it’s important to me that I not compromise my impartiality should cases of this nature, similar cases, be considered by the Supreme Court in the future, if I’m, of course, fortunate to be confirmed.

SEN. SPECTER: But Judge Thomas, I’m not asking you about any specific issue, let alone any specific case. I’m asking you about a very broad, broad, broad philosophical question. It’s as broad as the areas of federal funding, which are gigantic, and it’s as broad as the First Amendment freedom of speech, which we hope even exceeds the breadth of federal funding. And the issue is just because the federal government gets into funding, and establishes a scope of a program, and I’m not talking about any specific issue, doesn’t that give you at least some concern about limitations on speech, if you can curtail speech where

federal funding is involved?

JUDGE THOMAS: I think, as I suggested last week, Senator, I was very concerned in instances in which it appears, or in instances in which regulations by the government curtail our fundamental freedoms on, and in this case freedom of speech. I share that concern. What I’m attempting to avoid is offering a judgment on an agreement with a point of view on a very hotly contested and difficult case that could certainly come before the Court again.

Employee speech

Sept. 16, 1991

SEN. SIMON: Thank you. Mr. Chairman and Judge, and let me just add your family deserves some kind of a special medal struck for patience sitting through all of this, and we appreciate their doing that.

If I may get back to a question that you declined to answer, for reasons I understand, and that’s the Rust v. Sullivan decision. But what is involved there is something very basic, and that is whether the federal government can restrict speech if we fund something.

Let me take some hypothetical cases that you will not be faced with.

The federal government funds libraries through the Library Services and Construction Act, just a small amount, but we provide some funding. Would it be constitutional for the federal government to decide there are certain books – let’s just say back when we viewed communism as an immediate threat – were the federal government to decide you can’t have any books by Karl Marx in the library because we provide funding, would that be constitutional?

JUDGE THOMAS: Senator, I think that we could take an example like that, and I could offer an opinion on it and say that that would not be – that was a problem, a violation of the First Amendment, but I think that the difficulty would be in offering an opinion on those kinds of examples, which leads me back to Rust v. Sullivan, but let me make this point. I would be concerned by any effort – and I think that we all should be concerned – that when the government can – especially with an expanse- the government being involved in more and more parts of our lives every day, we should be concerned that if the government funds or attaches strings that limits fundamental rights merely because of the receipt of those funds, I would be concerned about it, and I think, as I noted earlier, I certainly would be concerned in this case that there would be some condition on the exercise of our First Amendment rights. And I am not suggesting that obviously you have not had a chance to work at anything in depth here. But to get a feel for where you stand, a little more of a feel than the generality that you just gave us.

SEN. SIMON: Your – just off-the-top-of-your-head instinct, would the government have the right to restrict what libraries can – what books they can have in the library?

JUDGE THOMAS: Without committing myself, Senator, could I –

SEN. SIMON: Without committing yourself – I don’t want you to commit yourself to doing certain things. I don’t want you to be on the bench and think, Oh, I told the Senate committee this or that. But I am interested in knowing what your feeling is on the -

JUDGE THOMAS: Let me give you – I would hope that the government can’t do that. I would have grave concerns if the government can, through simply providing funding, undermine fundamental rights. I would – it would be my hope that that could not happen.

SEN. SIMON: All right. I have some other examples, but let me get to a more specific example that you were involved in at the EEOC. There was a man named Frank Quinn who was in charge of the San Francisco district, he was a district director. In nine months he was going to retire, he had high ratings. He was asked by Newsweek magazine to comment, and he gave a comment that was not complimentary to the Washington office of the EEOC, and then he was transferred to the Birmingham office - meaning no disrespect to Birmingham here now, I may get in trouble with my colleague - transferred to the Birmingham office where they had had a vacancy for a full year.

And he went into court and a judge appointed by President Nixon, Judge Shnacky, said in upholding Frank Quinn’s right not to be transferred, said, “We have, I think, an overly outraged reaction to the initial publication demonstrating at the very least deep anger at the temerity of anyone in Mr. Quinn’s position to make the statement that he did. On the evidence before me, I can find absolutely no rational basis for the agency’s conduct. All of the evidence tends to support Mr. Quinn’s view that this was a deliberate, arbitrary, and capricious desire to punish him. I haven’t the slightest doubt Quinn was transferred as punishment for the exercise of his First Amendment right.”

Now, you may want to comment on the case. But the more fundamental question is, how do you view First Amendment rights for government employees?

JUDGE THOMAS: Senator, I fundamentally disagree with that statement and I did then, and I do now. When I arrived at EEOC, I established a policy that made it clear to all district directors who are members of the senior executive service that they would be rotated. I had rotated some into headquarters from the field offices, in fact one from Birmingham, and intended to rotate the others across the field.

The indication that this was in response to an article, I do not believe I had seen the statement and the article, and certainly it had no bearing whatsoever on my decision to move Mr. Quinn. I’ve stated that and would continue to state that. And if I did, I think it’s inappropriate. My own view is that individuals, I would hope, that individuals who worked for me wouldn’t feel the need to criticize me publicly, but I think they have the right to do so.

SEN. SIMON: And they have the right to do that without being transferred or anything like that.

JUDGE THOMAS: I think so. But this case was not that point. Others have criticized me and there certainly was no efforts against. I think that this was confused in this case with a policy that I thought was important to development of EEOC as an agency. When I arrived at the agency, the agency was stagnant. The agency needed some stimulation and I believe that the agency needed to have the managers moved around, sort of stir up the water somewhat. And I made that clear, and we did rotate managers and continue to rotate managers.

SEN. SIMON: You can understand the judge’s assumption, because it happened only a few days after the Newsweek article appeared, that he was transferred because of that.

JUDGE THOMAS: That’s been quite some time, but I think that that had been in the works prior to the Newsweek article. I had made a number of decisions early on in my tenure, and simply began to implement them. That had, from my standpoint, no relationship whatsoever, and I don’t think – I don’t remember that what he said was particularly offensive anyway.

SEN. SIMON: You made a talk to the Kansas City Bar Association referring to the Newsweek article, and you were unhappy with the Newsweek article obviously. Do you happen to remember –

JUDGE THOMAS: But not to Quinn. I don’t think I referred to Mr. Quinn. I thought that the article was off base, but I didn’t refer to him, I don’t think.

SEN. SIMON: I frankly don’t have that here, I don’t know. But in terms of basic freedom of speech for – if an employee of any federal agency speaks, and obviously some things are confidential, some things are classified, there are some limitations. But just because something would be embarrassing to an agency is not a cause for restricting freedom of speech for a government employee.

JUDGE THOMAS: It certainly wasn’t from my standpoint, and I would be concerned if, as an employee, my speech was in some way impeded.

Commercial speech

Sept. 16, 1991

SEN. METZENBAUM: Well, Judge Thomas, as Chairman Biden pointed out on Wednesday, economic rights currently are not entitled the same degree of protection as other rights such as due process, equal protection, and free speech. If they did receive that degree of protection, it would be much harder for Congress to pass laws protecting the environment, workers’ rights, and the safety of workers in the workplace.

The speech in which you made that statement regarding economic speech – rights – was not a speech on political philosophy that you were giving to the CATO Institute. You were talking about the Constitution and economic rights, and you were talking to the Business Law Section of the American Bar Association.

These were corporate lawyers. I’m sure many of them were delighted to hear what you had to say about economic rights being protected by the Constitution as much as any other rights.

But on Wednesday, in response to a question from Chairman Biden, you stated that in constitutional adjudication, it would not necessarily be the case that the protection of economic rights, quote, “would be at the same level that we protect other rights.”

Now, based on what you said in ‘87 and what you told this committee, it would appear to me that today, as well as in your response to the chairman, that you’ve changed your views regarding this subject. You didn’t make a distinction in your speech between young blacks and older blacks, you talked about all blacks. What – what’s prompted to you to change your views on this matter of economic rights?

JUDGE THOMAS: Senator, I have not changed my views. The point that I was making is that we do have rights – property rights, economic rights within our Constitution.

Now, we have other rights in our Constitution. The question becomes, in constitutional adjudication, at what level of scrutiny can those or at what level of scrutiny does the court look at regulation of those rights? They do exist. They’re in the Constitution. I don’t think there’s any disagreement about that.

The level of scrutiny for socioeconomic – in this case, that the relevant fact is economic rights – is rational basis. I have not quibbled with that, and I’ve made that clear.

In fact, in that very same speech or in one closely related to that, I made the point that the individuals who wanted to revisit the level of scrutiny for economic rights, I disagreed with them – individuals, as Chairman Biden mentioned, such as Mesito. But the mere fact that you don’t review those rights in the same way doesn’t mean they don’t exist and it does not mean that they’re not important.

What, however, I think that – that we do recognize in this society is that there are some rights that we value that are such – so deeply embedded in our society, at the core of our society, such as our First Amendment rights, that we will review it with a different standard.

But to review it as a distant – different standard in no way says these rights are unimportant. It recognizes our political process.

Commercial speech/expressive conduct

Sept. 16, 1991

SEN. LEAHY: Do you think that there is a core of political speech that is entitled to greater constitutional protection than other forms of speech?

JUDGE THOMAS: I think that, Senator, the value that we place on speech, whether it is freedom of the press or whether it’s on freedom to engage in discussions about politics, or whether it’s expressive conduct, we see those as, and the Court has treated those as, fundamental rights, and has protected those accordingly.

SEN. LEAHY: Is all speech the same, though? Is all speech given exactly the same constitutional protection?

JUDGE THOMAS: Well, I think the Court of course has not accorded the same protection of speech to commercial speech, for example. But the issues that have faced the Court have usually involved whether or not – the difficult issues – have involved expressive conduct as opposed to pure speech. And –

SEN. LEAHY: What about – I’m sorry, go on.

JUDGE THOMAS: And the exercise the Court has gone through has, in essence, been whether or not the government or the state can in any way regulate that expressive conduct and under what circumstances – in cases, for example like O’Brien or the cases such as Texas v. Johnson, the flag-burning case.

SEN. LEAHY: You don’t – you’re not saying, then, by any stretch, that only political speech is protected? I mean, a lot of other speech beyond political speech is protected by the First Amendment. I realize what you said about the expressive forms, but I’m talking about just speech now.

JUDGE THOMAS: Senator, I have, just as – I have not analyzed every single speech case, but my own value would be to protect the entire amendment in all of its fullness, and not to find ways to creatively read out that protection. I think it is important that we protect all of the amendment.

SEN. LEAHY: But now, for example if you had non-political speech, like say a scientific debate – that would be protected by the First Amendment?

JUDGE THOMAS: Well, I think that –

SEN. LEAHY: I’m not trying to give you a specific case, you understand, Judge. I just want to make sure we differentiate between the types of speech. But a scientific debate – First Amendment protections?

JUDGE THOMAS: Well, I think that speech – we value all of our speech. What I’m trying to say is I don’t limit the – and I see no reason and haven’t seen the Court limit our freedom of speech to whether or not we’re talking about science or whether we’re talking about politics.

Certainly the Court has attempted to accord protection of speech such as on, for example the most recent case, being the Texas v. Johnson, the flag-burning case.

SEN. LEAHY: Now, in that case that was a 5-4 decision, as I recall. They upheld – or they refused to uphold a conviction on the basis that the flag-burning was a political statement. Is that a fair shorthand?

JUDGE THOMAS: No, it was expressive conduct.

SEN. LEAHY: Expressive conduct.

JUDGE THOMAS: Expressive conduct – that the individual was making a statement, a political statement in burning the flag, and that was protected by the First Amendment. And the analysis normally is, whether or not the government can in some way control the conduct or regulate the conduct, whether the government, if it is expressive conduct, has a compelling interest in regulating that conduct.

SEN. LEAHY: Do you agree with the Johnson case?

JUDGE THOMAS: Again, Senator, I think it’s inappropriate for me to express agreement or disagreement, but I agree that we certainly should – that expressive conduct should be protected by our First Amendment. And I think the difficulty for the Court has been, to what extent can it be regulated, not whether or not it should be protected.

SEN. LEAHY: You would – or would it be safe to say you draw the line on certain kinds of expressive conduct? Suppose somebody said I’m going to make a political statement by driving 95 miles an hour down Constitution Avenue. Would that – might you say that might stretch the First Amendment guarantees a tad far?

JUDGE THOMAS: I think the analysis would be along the lines of whether or not the government has an interest, a compelling interest in regulating this conduct. And I think that we would probably both – and that’s an extreme example – we would both have some difficulty with the government not regulating someone speeding down Pennsylvania Avenue at 95 miles an hour. Although at times you feel in some cabs that you’re going 95 miles an hour along Pennsylvania Avenue.

SEN. LEAHY: In The New York Times v. Sullivan, which is sort of a – I think we could all kind of agree is the benchmark libel case – the Court held that an official couldn’t recover damages unless he could prove that – a public official couldn’t recover damages unless he could prove that the declamatory information was made with actual malice. Does that standard provide sufficient protection for public figures in your mind?

JUDGE THOMAS: I think the – I guess I haven’t looked at it from that standpoint, you know. I think all of us who have found our names occasionally in the newspaper would like to feel that we have some –

SEN. LEAHY: Never happened to you, has it, Judge?

JUDGE THOMAS: Well – but the – as I was telling my wife during this process, no matter how badly it turned out, as far as the publicity, I think that the freedom of the press is essential to a free society.

And she sort of looked at me, because we were going through the midst of it, sort of “Are you out of your mind?” But I believe that. And I believe that even as I was going through it, and even as I am going through it.

But I think what the Court was attempting to do there was of course to balance the First Amendment rights, the freedom of the press as we know it, and to not have that in a way impeded by one’s abilities to sue the media or to intimidate the media, and apply the standard of actual malice struck a balance by protecting the rights of the individual with the standard of actual malice. That is something of course that one could debate. But I think it is demonstration, a clear demonstration on the Court’s part, that the freedom of the press is important in our society – it is critical in our society – even though individuals may at times be hurt by the use of that right.

SEN. LEAHY: Do you see any need to change that standard?

JUDGE THOMAS: I at this moment certainly have not thought about changing that standard and have no agenda to change that standard. I think the Court is and my view, as I’ve attempted to express here, is we should protect our First Amendment freedoms as much as possible.

Alyssa Work is an intern at the First Amendment Center.