Justice Thomas and prisoners’ freedom of expression

Monday, October 8, 2007

David L. Hudson

This article is part of an online symposium on the First Amendment Center
Online concerning Supreme Court Justice Clarence Thomas’s First Amendment

Justice Clarence Thomas — the U.S. Supreme Court’s ultimate originalist — has
garnered attention for his contentious confirmation hearings, his reticence at
oral argument, and his independent vision in interpreting the U.S.

Justice Thomas’ independent vision certainly has guided him to craft a First
Amendment jurisprudence as unique and varied as that of any jurist in recent
memory who has occupied the hallowed chambers of the Marble Palace. His
originalism or textualism sometimes leads him to advocate strident protection
for expression — as in the areas of commercial speech and campaign finance — and
sometimes leads him to support a narrow constriction of expression, as in the
area of student speech.

Whatever his views, the justice from Pinpoint, Ga., has no problem calling
for the overruling of even long-standing precedent if it conflicts with his
constitutional vision.

With constitutional boldness, Justice Thomas has urged his colleagues to
overrule such seminal First Amendment decisions as:

Prisoners’ rights cases are no exception. Here too, Thomas has carved out a
special place in left field — or right field — on the current Court. He wasted
little time in distinguishing himself from his colleagues when he penned a
controversial dissent in the inmate-brutality case Hudson
v. McMillan
(1992). Thomas rejected the Eighth Amendment claim of Keith
Hudson, who was beaten in shackles by prison guards. While deploring the conduct
of the guards, Thomas dissented from the Court’s view that the reprehensible
conduct constituted a violation of the cruel-and-unusual-punishment clause of
the Eighth Amendment. “The Eighth Amendment is not, and should not be turned
into, a National Code of Prison Regulation,” he wrote. The New York Times
(2/27/1992) responded with an editorial, “The Youngest, Cruelest Justice,”
terming his opinion “alarming” and a “crashing disappointment.”

Why discuss the Eighth Amendment prohibition against “cruel and unusual
punishment” in examining Thomas’ First Amendment work? The answer lies in
Thomas’ view that prisoners essentially have no First Amendment rights to
freedom of expression. According to Thomas, prison policies satisfy
constitutional review as long as they do not violate the Eighth Amendment, which
for him is a very low bar. Hence, his reasoning in this area essentially renders
the First Amendment a nullity for most inmates challenging restrictive
regulations concerning freedom of expression or belief.

Inmate free-expression opinions
Thomas initially examined a
prisoner’s First Amendment claim through the Court’s standard articulated in
v. Safley
(1987). Under this rational-basis test, a prison regulation
satisfies constitutional review as long as prison officials’ actions were
reasonably related to legitimate penological concerns — such as safety or

In Shaw
v. Murphy
(2001), the Court ruled that inmates had no “special” First
Amendment right to assist other inmates with legal matters. Instead, the
justices said, inmate Kevin Murphy’s claim should have been adjudged under a
deferential Turner v. Safley analysis, this in stark contrast to the 9th
U.S. Circuit Court of Appeals’ elevated concern for legal materials and advice.
Thomas wrote the Court’s unanimous opinion, rejecting the argument that there
was a “special right” to legal assistance above Turner v. Safley, which
he wrote “provides the test for evaluating prisoners’ First Amendment

Thomas’ views became more crystallized when the Court examined another inmate
First Amendment expression case two years later. In Overton
v. Bazzetta
(2003), the Court unanimously upheld Michigan Department of
Corrections restrictions on inmate-visitation rights. Justice Anthony Kennedy’s
majority opinion applied the Turner standard and upheld the prison
policies in the wake of serious concerns over contraband smuggling.

Thomas authored a concurring opinion — joined only by Justice Antonin Scalia
— that eviscerated inmate First Amendment claims. Thomas reasoned that the
Constitution did not define incarceration and that states were free to “define
and redefine all types of punishment, including imprisonment, to encompass
various types of deprivations — provided only that those deprivations are
consistent with the Eighth Amendment
” (emphasis in original). He added that
“[p]risoners challenging their sentences must, absent an unconstitutional
procedural defect, rely solely on the Eighth Amendment.”

In Beard
v. Banks
(2006), the Court upheld 6-2 a Pennsylvania Department of
Corrections regulation that imposed severe restrictions on access to reading
materials by inmates in long-term segregation units. The Court’s majority
opinion, written by Justice Stephen Breyer, applied the Turner standard.
Justice Thomas once again concurred, but reiterated the “framework” that he
articulated in Overton.

“Judicial scrutiny of prison regulations is an endeavor fraught with perils,”
he wrote, emphasizing the “shortcomings of the Turner framework” as
applied to any prison policy based on depriving inmates of privileges as a form
of behavior modification.

Jurisprudential patterns
In a sense, Justice Thomas’ path in
prisoners’ free-expression jurisprudence resembles his commercial-speech
jurisprudence — not in the First Amendment result (where they are a complete
opposite) but in the move from applier of precedent in a unanimous opinion to a
concurrence calling for complete change. In the commercial-speech context,
Thomas first wrote a unanimous opinion for the Court in Rubin
v. Coors Brewing Co.
(1995), applying the Court’s traditional standard
(Central Hudson). Then, in the next commercial-speech decision, Thomas
wrote a concurrence in 44
Liquormart, Inc. v. Rhode Island
(1996), advocating near-complete
protection for commercial speech and an abandonment of the Court’s leading

The same pattern emerged in the prisoner free-expression arena. Thomas first
wrote the unanimous 2001 opinion in Shaw
v. Murphy,
applying the Court’s leading standard (Turner v.
). His next opinion (Overton) was a concurring opinion, calling
for the abandonment of that leading precedent.

As in many other areas of First Amendment jurisprudence, Clarence Thomas has
staked out his independent position on prisoner freedom of expression —
seemingly unconcerned with Court influence, outside criticism, inmate abuse, or
even precedent. In that regard and others, the measure of his mission on the
Court is defined, absolutely, by his own constitutional vision.

David L. Hudson Jr. is a scholar at the First Amendment Center in
Nashville. He is the author or co-author of 17 books, including
Rehnquist Court: Understanding its Impact and Legacy (2006), The Handy
Supreme Court Answer Book (forthcoming 2007), The Bill of Rights: The
First Ten Amendments of the Constitution (2002), The Fourteenth
Amendment: Equal Protection Under the Law (2002) and Prisoners’ Rights

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