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Flexibility and the First Amendment

By Eric F. Citron
Special to the First Amendment Center Online

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

The most striking of Justice Clarence Thomas’ opinions have come as concurrences. In his concurrence in United States v. Lopez (1995), Justice Thomas characterized the New Deal, and the famous “switch in time” as a “wrong turn” in American jurisprudence. Last term, in Gonzales v. Carhart (2007), he expressed in concurrence his belief that Roe v. Wade has “no basis in the Constitution.” In Cutter v. Wilkinson (2005), his concurrence took the position that the establishment clause does not apply to the states, and that the Religious Land Use and Institutionalized Persons Act may be beyond even the spending power of the federal government.

There is nothing surprising about this — it is in the nature of a concurrence to stake out more controversial ground than the majority opinion, which often takes a more conventional route to the same result. Even so, especially in these cases, Justice Thomas’ path has led him far out on the jurisprudential limb, away from the safety that the “core” case law of the Court represents.

In some important respects, credit is due to these acts of judicial courage and frontiersmanship. Thomas’ concurrences do not hide — as many opinions certainly do — behind oblique balancing tests or carefully worded distinctions. When Justice Thomas disagrees with the prevailing jurisprudence, he has been willing to say so directly in a way that perhaps no other justice of the Court has recently emulated.

This willingness has been powerfully on display, both recently and throughout his career, on the topic of freedom of expression. In speech cases — as in many others — Justice Thomas’ quest has been to replace the prevailing pragmatism of the First Amendment’s many balancing tests with rules that are more hard and fast. Often the result is less speech protection, but sometimes it is more. What remains constant, however, is a conviction that the current system leaves too many “judgment calls” to judges, and that less flexibility and more formality are needed in First Amendment law. Whatever one thinks of this pursuit, we should recognize and respect that it is not the easy way to decide cases and controversies.

Beyond balancing
As an initial matter, it must be recognized that the First Amendment is beset by balancing tests on all sides. There is nothing that is a per se violation of the Constitution’s free speech imperative; instead, a series of doctrinal hurdles and variously calibrated judicial scales usually lie between the allegation and the finding of a First Amendment violation. Doctrinal tests determine all of the following: when speech is in a public forum, when the target of possible libel is a public figure, when speech is adequately dangerous to allow regulation, when speech qualifies as that of the government, when speech is obscene, when speech is actually conduct, when speech is on a matter of public concern, and the like. Even if a claim of infringement survives these initial doctrinal hurdles, it will finally be subject to some variable level of “scrutiny” to determine whether the infringement is actually great enough to invalidate the government action at stake.

All these stages of inquiry represent possible “outs” for a justice inclined to find (or not find) that a government regulation invades too greatly the province of the First Amendment. Where reaching a desired result through one of these various paths is so easy, it is remarkable to see Thomas so often take a path of far greater resistance.

Yet that is what Justice Thomas unmistakably does. Instead of acquiescing in the result as reached by others under a flexible set of standards, Thomas has routinely called for First Amendment rules that are more inflexible even as they end up at the same destination. This certainly seems true of his commercial-speech cases, where his opinions have sought to impose strict scrutiny in place of more malleable forms of analysis, even when one could use the more malleable form of analysis to reach the same, speech-protective result. See 44 Liquormart v. Rhode Island (1996) (Thomas, J., concurring in part & in judgment).

This search for inflexible First Amendment rules is not unprecedented: Both Justice Hugo Black and Justice Antonin Scalia have embarked on similar searches for firm ground in First Amendment law. And indeed, Justice Thomas now faces a familiar obstacle in that quest. The problem is that, once firm rules are proposed, the justice must explain why they apply to some but not to others. If the rights of liquor-store owners to advertise as they please should not be subject to flexible balancing, why should our protection of the rights of students to display signs as they please not be similarly inflexible? Justice Thomas answers — in a familiar refrain — that the reason the firm rule does not apply is not that it is in fact a flexible balancing test, but that, as to these less-deserving seekers of free-speech protection, the First Amendment simply does not apply.

Why schools are like prisons
Case in point: In Morse v. Frederick (2007), Justice Thomas recently took the position that the First Amendment does not apply at all to students in public schools. In so doing, he rejected a line of cases dating back almost 40 years to Tinker v. Des Moines Independent Community School Dist. (1969), which had held that the First Amendment did apply to students who wore black armbands to school in protest of the Vietnam War. Justice Thomas’ reasoning stemmed from what he perceived as the unique, disciplinary atmosphere of the public schools. He pointed out that in the Colonial era, “teachers managed classrooms with an iron hand,” and that when public education emerged in the 1800s, “public schools were not places for freewheeling debates or exploration of competing ideas.” This disciplinary atmosphere, giving “total control to teachers, who expect[] obedience and respect from students,” is in Justice Thomas’ view antithetical to the kinds of behavior often legitimized by reference to the freedoms of the First Amendment. His position is, essentially, that the school is a zone of closed-universe learning and teacher-dominated discipline, not a zone of open dialogue and student-oriented debate.

An essential part of Thomas’ critique of Tinker was its flexibility. He wrote that Tinker “imposed a new and malleable standard: Schools could not inhibit speech unless it ‘substantially interfere[d] with the requirements of appropriate discipline in the operation of the school.’” Justice Thomas distrusted this test’s reliance on “judgment calls” by the judiciary “about what constitutes interference and what constitutes discipline.” His complaint with this flexible standard was not solely that it “usurped” the traditional role of school boards in making pedagogical decisions, however, but that it encouraged “ad hoc exceptions” which “create[] confusion without fixing the underlying problem by returning to first principles.”

Justice Thomas’ problem with Tinker and its progeny is not only that they insert the judiciary as a protector of First Amendment rights where the school authorities should reign supreme, but also the simple fact that they represent too-flexible approaches to a problem with a potentially brighter-line solution. Justice Thomas fears that “our jurisprudence now says that students have a right to speak in schools except when they don’t.” His solution to this problem of over-flexibility is to say that, in all cases, high school students have no such First Amendment rights.

There is a surprising similarity between this line of reasoning and the approach that Thomas has applied to the First Amendment in prisons. In Beard v. Banks (2006), the Court recently considered the question of whether inmates may, under certain circumstances, be denied access to materials such as newspapers and magazines. The majority, once again, resolved this question by recourse to one of constitutional law’s familiar balancing tests. The standard from Turner v. Safley, a 1987 prison case, permits regulations that impinge on inmates’ constitutional rights only if the regulations are reasonably related to legitimate penological interests. In his concurrence in Beard, Justice Thomas reiterates a position he had taken earlier that this test is too flexible, and that it allows the judiciary to substitute its judgments on matters of penology for those of the proper shot-callers — prison administrators and state penological authorities.

Justice Thomas would instead do to Turner what he would do to Tinker — that is, replace its flexibility with the rule that, in prisons, the First Amendment simply does not apply. His view is that only the Eighth and 14th Amendments constrain what prison authorities may rightly include within the set of liberty deprivations associated with a prison term, and that deprivations of speech rights are thus not First Amendment problems at all.

As with Morse, discipline is paramount. In the Beard concurrence, Thomas gives his view that “a term of imprisonment may, under state law, carry with it the implied delegation to prison officials to discipline and otherwise supervise the criminal.” He also notes that the history of the prison was, of course, disciplinary in the extreme and often included deprivation of reading material. Prisons are therefore like schools, and prisoners like students — because both realms are primarily zones of discipline, neither are proper fora for First Amendment protection.

While this parallel is superficially striking, it is not necessarily inapt or inept. Countless college seniors forced to wade through Michel Foucault will recognize the parallel between schools and prisons from Discipline and Punish: The Birth of the Prison (1977). That both might be thought of as zones where free expression has no place is perhaps less surprising than a bare comparison of schoolchildren and hardened criminals might suggest.

Moreover, Justice Thomas’ discipline model does extract the courts from difficult acts of line-drawing between forms of school and prison regulation that are acceptably punitive and other forms of punishment or control that cross over into protected territory. By ceding the school and the prison back to the relevant disciplinarian — a person who is, in turn, subject to the political process — the Thomas approach reduces federal constitutional involvement in a realm perhaps better suited to other actors. The virtues in terms of legal clarity are also clear, as the act of drawing constant lines across different kinds of school and prison programs is simply replaced by drawing a line around those realms entirely.

But there is the rub. As with so many strategies designed to decrease overly malleable judicial standards, Justice Thomas’ approach only replaces one act of line-drawing with another. The most obvious next question is: What kinds of institutions are disciplinary enough that the First Amendment should not apply? Certainly, public colleges pose a difficult problem. As Thomas makes clear in his Morse concurrence, “Even at the college level, strict obedience was required of students ... both inside and outside the classroom.” While Thomas appears to limit elements of his discussion to “elementary and secondary education,” there is no reason his observation regarding the disciplinary history of college education should not apply to exclude First Amendment protection in that realm as well.

Given the role that college campuses have played in recent history as arenas of public protest, such a possibility appears truly remote. Yet inflexible rules can by their very nature be too harsh, and Justice Thomas’ concern with clarity may indeed lead him down paths that seem to many too dangerous to explore. And the greater point is that the proverbial “judgment call” is inescapable, as we will still be forced to answer whether the First Amendment should apply at all “even at the college level,” and perhaps even on college campuses “outside the classroom.”

There is also the specter posed by viewpoint-discriminatory regulations in areas where the First Amendment “does not apply.” Would we really suppose that there would be no First Amendment problem if prisoners were allowed some newspapers, but only those that spoke flatteringly about the current administration? What if schoolchildren could only talk about evolution in the halls, and would be suspended for even discussing intelligent design? What if, as Justice Thomas suggests was the historical practice, inmates were “given nothing to read except the Bible”? Surely these are First Amendment problems, and it is an inadequate answer to these forms of political and social partisanship to say: “Sorry, the First Amendment does not apply here.”

Final thoughts on flexibility
Two conclusions should be drawn from these simple points. The first is that the holy grail of judicial rules that can be clearly and consistently applied may be a vanishing object of pursuit, even if it is a worthy one. Every new doctrinal turn designed to eliminate “the doctrine of exceptions” requires new acts of line-drawing, and new exceptions to mitigate the occasional absurdities and iniquities that are often wrought by inflexible legal regimes. Today, because Tinker is still good (if eroding) law, we ask the question whether a school regulation barring some kinds of speech is properly related to a disciplinary goal; in Justice Thomas’ tomorrow, we will ask whether a given institution is (or, perhaps, was in 1789 or 1866) adequately disciplinary that speech in that zone should be freely regulable. Nothing about the latter question makes the final analysis any less of a “judgment call.”

Furthermore, at least in the realm of the First Amendment, one wonders whether a measure of flexibility isn’t a good thing. The First Amendment serves many masters. It is certainly a right of free expression that protects individuals, but it also imposes a responsibility on the government not to use the regulation of speech for self-serving or totalitarian ends. The First Amendment sometimes protects persons in an individualized way and sometimes protects the public sphere in a more collectivized manner. That is what makes viewpoint discrimination appear so problematic, even in places where we justifiably wonder whether the individual has any claims to First Amendment “rights.” The point is that inflexible First Amendment rules are likely to preference one set of First Amendment ends over another, and thereby to miss important purposes served by this most important provision of our Constitution. Whether that cost is worth the benefits of judicial clarity is itself a “judgment call” I do not feel I can capably make.

What can be conceded, however, is that Justice Thomas’ concurrences have helped to raise issues of “first principle” that are often swallowed by balancing tests thoughtlessly applied. School discipline undoubtedly does play a role in the Tinker balancing, and is likely the sole or predominant reason why the rules for government regulation of speech are different in, say, high school and college. I would seriously question the wisdom of the majority’s adopting Thomas’ inflexible approach to First Amendment protection in high schools (or even prisons), for precisely the reasons I have raised above. But I do not question the wisdom of pressing on principle in these concurrences. Agree or disagree with either the principles themselves or the prospect and wisdom of the quest for bright-line First Amendment rules, the progress of the law is unquestionably aided by the occasional categorical concurrence.

Eric Citron is a graduate of Yale Law School (J.D. 2007) and Harvard College (A.B. 2003) and a law clerk to the Hon. James Robertson of the U. S. District Court for the District of Columbia. Recent publications include “Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext,” 116 Yale L.J. 1072 (2007); “United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review,” 115 Yale L.J. 2183 (2006), and ”Sudden Death: The Legislative History of Future Dangerousness and the Texas Death Penalty,” 25 Yale L. & Pol’y Rev. 143 (2006).


Online symposium: Justice Thomas & the First Amendment

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