Justice Thomas: making waves in First Amendment jurisprudence

Tuesday, May 10, 2011

Justice Clarence Thomas continues to strike his own jurisprudential path on the U.S. Supreme Court – whether it be his oft-noticed reticence at oral argument or his penchant for overruling precedent.

The Court’s ultimate originalist believes strongly in applying the original views of the Founding Fathers in interpreting the Constitution. In First Amendment law, Thomas has taken bold stances that distance him from his colleagues. Usually, in separate concurring opinions, he explains why he would overrule a leading First Amendment decision or why the Court has gone astray.

Sometimes, Thomas’ positions cause him to advocate for greater protection for certain types of speech, such as commercial speech and campaign finance as speech. Other times, Thomas’ views would dramatically curtail First Amendment freedoms – student speech, prisoner speech and the establishment clause. Suffice it to say, Thomas has gone his own way in many areas of First Amendment law. Five examples illustrate the Thomas way.

Commercial speech

Thomas is known as the Court’s premier free-speech defender of advertising or commercial speech. Relying on historical evidence that showed government acceptance of advertising, Thomas questions why commercial speech is subject to much more regulation than political speech. In modern First Amendment law, political speech receives much more protection. For example, content-based restrictions on political speech are subject to the highest form of judicial review, known as strict scrutiny. But content-based restrictions on commercial speech are subject to a lesser form of judicial review, known as intermediate scrutiny, under Central Hudson Gas & Electric v. Public Service Comm’n of New York (1980). Thomas has called for Central Hudsons demise and greater protection for commercial speech.

In a concurring opinion in a case about liquor advertising – 44 Liquormart v. Rhode Island (1996), Thomas boldly questioned the distinction: “I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech. Indeed, some historical materials suggest to the contrary.”

Campaign-finance laws

Thomas also questions laws that regulate political contributions and spending. He has consistently stressed that spending by candidates and contributing money to candidates are pure political speech. The Supreme Court in Buckley v. Valeo (1976) ruled that “money is speech” but created a system that allowed greater government regulation over contributions than over spending. Thomas has repudiated Buckley and called for its explicit overruling. He famously referred to the Bipartisan Campaign Reform Act of 2002 – a major piece of campaign-finance legislation – as “the greatest speech abridgement since the Civil War.”

The establishment clause

The area in which Thomas diverges from his colleagues perhaps more than any other is the establishment clause, the first 10 words of the First Amendment: “Congress shall make no law respecting an establishment of religion.” In its 1947 decision Everson v. Board of Education, the Supreme Court extended the establishment clause to state and local governments and began its modern church-state separation jurisprudence.

Thomas views the Everson foundation as faulty and says the establishment clause should not apply to limit state and local government officials. In his concurring opinion in the Pledge of Allegiance decision, Elk Grove Unified School District v. Newdow (2004), Thomas wrote: “I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.” That means Thomas would not apply the establishment clause to the states – a view not shared by the other members of the Court.

Student speech

Clarence Thomas argues that the seminal student-speech case – Tinker v. Des Moines Independent School Dist. (1969) – should be overruled. “Tinker effected a sea change in students’ speech rights, extending them well beyond traditional bounds,” he wrote in his concurring opinion in Morse v. Frederick (2007). “As originally understood, the Constitution does not afford students a right to free speech in public schools.” Thomas would turn the clock back to the early 20th century and before when students had no First Amendment rights. As he wrote in his Morse concurrence, “Teachers taught and students obeyed.”

Prisoner speech

The Supreme Court wrote in Turner v. Safley (1987) that “Prison walls do not form a barrier separating inmates from the protections of the Constitution.” The Court has ruled that inmates do retain some First Amendment rights – though prison officials receive much deference from reviewing courts. Justice Thomas has written in concurring opinions in Overton v. Bazzetta (2003) and Beard v. Banks (2006) that the proper inquiry for prisoner challenges is the Eighth Amendment “cruel and unusual punishment” clause, not the First Amendment. In Overton, he said 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). Thomas views Turner v. Safley as unworkable and prisoners should have no First Amendment rights.

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