|William D. Araiza|
This article is part of an online symposium on the First Amendment Center Online concerning Supreme Court Justice Clarence Thomas’s First Amendment jurisprudence.
When the Supreme Court released its opinions in Federal Election Commission v. Wisconsin Right to Life (2007) and Morse v. Frederick (2007), on the same day, it opened the door for cynics to characterize the results as “free speech for corporations and unions, but not for high school students.” A more learned cynic might apply a harsher version of that characterization to Justice Clarence Thomas, who agreed with both results but took more extreme positions than the prevailing opinions.
In Wisconsin Right to Life Justice Thomas joined Justice Antonin Scalia’s concurrence urging the striking down of important restrictions on political speech enacted in the McCain-Feingold campaign finance law. The two thus went farther than the plurality opinion, which simply read those restrictions narrowly. In Morse Justice Thomas urged both the overruling of Tinker v. Des Moines Independent School Dist. (1969), the case that established limited First Amendment rights for students, and the withdrawal of any First Amendment protection for student speech. Here, again, Thomas found himself on the extreme edge of the Court’s spectrum, with the majority upholding the speech restriction through a narrow reading of Tinker.
Such cynicism oversimplifies a complex picture, but nevertheless reveals an important issue in Justice Thomas’ free-speech jurisprudence. Across several free-speech areas his jurisprudence calls for relatively absolutist results, either in favor of or against the speech right at issue. In cases dealing with campaign finance, commercial speech, non-obscene sexual speech, cross-burning and now student speech, Thomas has staked out positions at an extreme end of the debate — either against nearly any government power to restrict the speech in question, or, as in Morse, against any constitutional right to speak.
Jurisprudence of ‘extremism’
“Extreme” is not necessarily pejorative and does not necessarily mean “solitary” — in the campaign-finance and sexual-speech contexts, for example, Justice Thomas has found several allies, even if in Morse Thomas was alone. In all of these cases, though, his approach reflects a discomfort with the balancing and line-drawing that marks much of the Court’s contemporary free-speech jurisprudence.
What leads Justice Thomas to favor extreme positions? Part of the answer lies in his originalist methodology. Leaving aside the question whether he applies that methodology consistently — a point often raised by critics of him, and of judicial originalists more generally — Justice Thomas’ originalism sometimes leads him either to exclude certain rights from any constitutional status whatsoever, or to disallow nearly any government interest in restricting that right.
McIntyre v. Ohio Elections Commission (1995) is a case in point. There, Thomas’ originalist inquiry led him to conclude that the framers understood freedom of speech to protect anonymous political speech. For that reason he found no need to engage in the standard strict scrutiny normally accorded content-based speech regulations; according to Thomas, the Court “need not undertake [strict scrutiny] analysis when the original understanding provides the answer.”
Justice Thomas’ approach in Morse is analogous, though it reaches the opposite result. On the basis of a historical inquiry he concluded that 19th-century courts did not protect student speech, and that, therefore, students should not be thought of as having enjoyed speech rights during the relevant framing period. For that reason he found no need to ask, as Tinker requires, whether the student speech at issue risks disruption of the school’s educational mission.
However, Thomas’ absolutist claims in Morse are subject to question. For example, the cases he cites for the proposition that the speech clause was not understood to protect student speech do not explicitly consider free-speech arguments, whether based on state or federal constitutional law. Rather, those cases upheld administrators’ punishment of student speech against a variety of other types of challenges, most notably challenges to the administrators’ general authority or to the appropriateness of the punishment.
Justice Thomas argued that if student speech had enjoyed constitutional status (either under the First Amendment after 1868 or state free-speech provisions before then) then “one would have expected 19th-century public schools to have respected those rights and courts to have enforced them.” But looking for evidence of a right’s existence in government’s practice of respecting it raises serious questions; indeed, under that methodology a judge might point to Reconstruction-era segregative practices as evidence that racial segregation did not implicate the equal-protection clause. Additionally, concluding that contemporaneous judicial non-enforcement of a right suggests that right’s non-existence raises difficult historical questions about the availability of rights of action and plaintiffs’ realistic access to courts, especially where the remedies sought were likely to be trivial. Moreover, the meaning that can be gleaned from these cases casts doubt on Thomas’ thesis. In particular, those cases reflect a concern for schools’ need to maintain order and discipline — perhaps not coincidentally the same concern reflected in Tinker. This is true even in the case Thomas cites for the proposition that, historically, schools enjoyed the authority to punish student speech even on serious public matters.
Cabining judicial discretion
Thus, one might simply conclude that Justice Thomas’ Morse opinion reflects careless historiography. But something more may be at work. In his extrajudicial writing Thomas has explained that he applies originalist methodology in part to cabin judicial discretion. Given that rationale his historical analysis might well skew toward absolutist conclusions such as that in Morse. Though his true motivations are unknowable, it is revealing to note that in Morse Thomas combines his historical analysis with a critique both of Tinker’s vagueness and intrusiveness on school administration, and of the Court’s subsequent application of Tinker, which he derides as unprincipled. His opinions in other First Amendment cases reveal the same concern about balancing tests that weigh speech rights against other interests. Whatever his motivation, an approach that yields absolute results absolves a judge from the need to balance interests and draw lines that have no obvious basis in constitutional text — practices that he criticizes as inconsistent with the judicial role.
In fairness, Justice Thomas’ Morse opinion did attempt to link the results of his historical analysis with his jurisprudential critique of Tinker. In particular, he suggested that Tinker’s progeny have “scaled back” Tinker or “set [it] aside on an ad hoc basis” — “perhaps” because “Tinker’s reasoning conflicted with the traditional understanding of the judiciary’s role in relation to public schooling.” While he later retreats somewhat, he implies that schools’ traditional authority over students, enshrined in the common-law doctrine of in loco parentis, reflected a well thought-out division of social authority and control with which Tinker interfered, with unfortunate results. Indeed, his invocation of Justice Hugo Black’s dissent in Tinker — a dissent short on originalist analysis and long on annoyance at the prospect of students overturning the traditional educational process — suggests the confluence of historical and policy analysis in Justice Thomas’ mind.
But what if originalism and policy analysis do in fact point in different directions? Later in his opinion Thomas conceded that schools face “administrative and pedagogical challenges different from those faced by 19th century schools.” “And,” he continued, “the idea of treating children as though it were still the 19th century would find little support today.” These concessions raise concerns far beyond both Joseph Frederick’s unveiling of his strange banner during the Olympic torch relay outside his high school, and even the general question of student-speech rights.
Schools — and the rules that governed them — played a role in the most important case of the 20th century, Brown v. Board of Education. In Brown, the Court also conceded that schools had changed, in particular in the importance of the role they played in American society. In Brown the Court left no doubt about how it would respond when the social context surrounding public education had changed: The original understanding of the 14th Amendment could not control the Court’s decision.
In Morse, however, Justice Thomas provided a very different answer to the question how to interpret a constitutional provision when the social context of a government institution had changed since the framing. After conceding the above changes in public education, Thomas simply stated: “I see no constitutional imperative requiring public schools to allow all student speech.” He continued that parents desiring schools that protected student speech could work to influence their school boards, educate their children in private schools or at home, or simply move away.
Thus, in Morse Justice Thomas shows no interest in balancing what he now reveals to be his understanding of the competing policy concerns here: the fundamental correctness of in loco parentis and the recognition that schools find themselves facing different challenges from those present when that doctrine developed. In stark contrast to Tinker, and to every other justice in Morse, Thomas did not attempt to apply Tinker’s difficult balance (which mirrors the policy balance he himself describes). Rather, he adopted the policy balance drawn by the common law in 1868 as a reflection of the enacting public’s understanding of the 14th Amendment, and called that result the constitutional rule.
The values (& vices) of history
An essay this brief cannot even begin a fair critique of this approach. Originalism itself is enormously controversial. Moreover, Justice Thomas raises a difficult issue in his embrace of contemporaneous common-law rules as the touchstone for interpreting a provision self-consciously understood as at least a partially revolutionary grant of rights. Most specifically of all, critiquing Thomas’ approach in Morse requires examining the methodology of deriving constitutional meaning from the action — and sometimes the inaction — of litigants and schools two centuries ago.
At the very least, the issues raised by Justice Thomas’ concurrence suggest that one should be wary of a justice’s use of history to reach conclusions consistent with his policy preferences. This is especially true when that historical examination purports to find in the common law absolutist answers rather than the nuanced, fact-intensive results characteristic of classic common-law adjudication. This is not to say that Justice Thomas’ method is a sham, or is applied in less than good faith. But the issues raised above suggest that a method as fraught with complexity as originalism should be approached with humility and a recognition of the temptation posed by black-and-white answers to difficult questions.
William D. Araiza is the associate dean for faculty, professor of law and Richard A. Vachon, S.J., fellow, Loyola Law School Los Angeles. He is the co-author, with Arthur Hellman and Thomas Baker, of First Amendment Law: Freedom of Expression and Freedom of Religion (2006) and Constitutional Law: Cases, History and Dialogues (3rd ed. 2006) with Phoebe Haddon and Dorothy Roberts.