|Scott D. Gerber|
This article is part of an online symposium on the First Amendment Center Online concerning Supreme Court Justice Clarence Thomas’s First Amendment jurisprudence.
Among the conclusions I reached in First Principles: The Jurisprudence of Clarence Thomas was that Justice Thomas approaches civil rights cases differently from other types of constitutional law cases. In the former, he is what I call a “liberal originalist”: He maintains that the Declaration of Independence articulates the philosophical ends of our nation, that those ends are individualistic rather than group-based, and that the Constitution establishes the means to effectuate the Declaration’s individualistic ends. In other types of constitutional law cases (free speech, federalism and so on) he is a “conservative originalist”: He argues, as Robert Bork did before him, that the Constitution should be interpreted as the Framers themselves would have interpreted it.
To put the point another way, I discovered in First Principles that Justice Thomas was methodologically consistent within constitutional law categories, but methodologically inconsistent across categories. I am delighted to contribute an article to this symposium on Justice Thomas’ First Amendment jurisprudence because it allows me to update that conclusion. As this article suggests, Thomas now approaches free-speech cases involving hate speech — at least those concerning cross-burning — differently from other types of free-speech cases. The Court’s only African-American jurist came to this position gradually.
Confirmation testimony and vote in R.A.V. v. St. Paul (1992): First Amendment protects expressive conduct, including cross-burning
During his confirmation hearings, then-Judge Thomas embraced the notion that the First Amendment protects expressive conduct. Sen. Patrick Leahy, D-Vt., asked Judge Thomas whether he thought Texas v. Johnson, the Supreme Court’s 1989 decision reversing a criminal conviction for burning the American flag, was decided correctly. Thomas answered: “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.”
After he was confirmed, Justice Thomas joined Justice Antonin Scalia’s opinion for the Court in R.A.V. v. St. Paul (1992). In that case the Court voided on free-speech grounds a city ordinance that had banned cross-burning, among other symbols. The ordinance outlawed any symbolic expression that provoked “anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender.” Edward J. Cleary, the defendant’s lawyer in the case, subsequently recounted in Beyond the Burning Cross that, before the Court’s decision, Thomas’ “approach to this case was simply unpredictable.” Cleary observed that “[n]o other justice on the Court would view the burning cross with the same life experience as Clarence Thomas,” but that Thomas “had sat on the Court for only a number of weeks.”
Concurring opinion in Capitol Square Review & Advisory Board v. Pinette: Ku Klux Klan erects a cross as a political act, not as religious expression
The Court again confronted the burning cross in Capitol Square Review & Advisory Board v. Pinette (1995). Justice Thomas joined Justice Scalia’s opinion for the Court that the state of Ohio had not violated the establishment clause when it permitted the Ku Klux Klan to display an unattended cross on the grounds of the state capitol. However, Thomas wrote separately to make the point that the Klan erected the cross as a political act — to further its efforts “to establish a racist white government in the United States” — not as religious expression and, consequently, the case “may not have truly involved the Establishment Clause.” Interestingly, despite Justice Thomas’ well-documented reserve during oral arguments, he spoke 11 times during the oral argument in Capitol Square. At one point he said that, notwithstanding the fact that the cross the Klan erected on public property in Columbus was not lit, “there were some concerns that some of the citizens of Columbus, when they saw that, could actually see fire on that cross.”
Dissenting opinion in Virginia v. Black: Cross-burning is entitled to no First Amendment protection
Justice Thomas’ most recent statement about cross-burning occurred in Virginia v. Black (2003). At issue were the convictions of several persons under a Virginia law that prohibited cross-burning “with an intent to intimidate a person or group of persons.” The law also specified that burning a cross was “prima facie evidence of an intent to intimidate a person or group of persons.” One of the cases appealed to the Court involved Ku Klux Klan members who had burned a cross at a rally on an isolated farm. The other case concerned two men who had burned a cross on the lawn of an African-American family.
The Court, in a splintered decision, reversed the convictions of the Klan members and remanded the convictions of the men who burned a cross on the lawn of an African-American family. Justice Sandra Day O’Connor announced for the Court that cross-burning is protected symbolic speech, but that cross-burning with an intent to threaten or intimidate is not. She required a defendant’s intent to threaten or intimidate to be proved by the government in every case, and therefore struck the portion of the Virginia law that made cross-burning prima facie evidence of intent.
Justice Thomas dissented. As he did in his concurring opinion in Capitol Square, he maintained in Virginia v. Black that his colleagues had mischaracterized the case at bar. As noted above, in Capitol Square, a case the Court decided on establishment clause grounds, Thomas suggested that the establishment clause might not have been at issue. In Virginia v. Black, he was unequivocal in his opinion that the majority had misunderstood the case: The Virginia statute “prohibits only conduct, not expression.” He thundered: “Just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point. In light of my conclusion that the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests.”
Why has the Court’s only African-American jurist changed his position on cross-burning?
- Judge Thomas’ support for symbolic speech during his confirmation hearings;
- Justice Thomas’ vote in R.A.V. v. St. Paul to reverse, on free-speech grounds, a criminal conviction for burning a cross;
- his concurring opinion in Capitol Square that erecting a cross is a political act by the Klan, and
(4) his dissenting opinion in Virginia v. Black that cross-burning is not expressive conduct at all and therefore entitled to no First Amendment protection?
In other words, why has Justice Thomas changed his position on whether the First Amendment protects cross-burning? The explanation is, almost certainly, that Thomas has come to fully embrace the view that the burning cross is such a unique symbol to the African-American community that it deserves no protection under the Constitution. Indeed, Thomas made it clear during oral arguments in Virginia v. Black that it was the racial significance of the burning cross that dictated his constitutional analysis in the case:
"Now, it’s my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and ... and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror. ... Well, my fear is ... that you’re actually understating the symbolism on ... of and the effect of the cross, the burning cross. I ... I indicated, I think, in the Ohio case [Capitol Square Review & Advisory Bd. v. Pinette] that the cross was not a religious symbol and that it has ... it was intended to have a virulent effect. And I ... I think that what you’re attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is unlike any symbol in our society."
Justice Thomas reiterated in his dissenting opinion that the burning cross occupies a unique place in African-American history. He quoted a powerful passage from the record of a 1991 9th U.S. Circuit Court of Appeals opinion about cross-burning:
"After the mother saw the burning cross, she was crying on her knees in the living room. [She] felt feelings of frustration and intimidation and feared for her husband’s life. She testified what the burning cross symbolized to her as a black American: “murder, hanging, rape, lynching. Just about anything bad that you can name. It is the worst thing that can happen to a person.” Mr. Heisser told the probation officer that at the time of the occurrence, if the family did not leave, he believed someone would return to commit murder. ... Seven months after the incident, the family still lived in fear. ... This is a reaction reasonably to be anticipated from this criminal conduct.”
I noted in First Principles that Justice Thomas became interested in the Declaration of Independence because he was trying to understand the racial experiences of his grandfather, the man who most influenced his life. Thomas’ interest in the Declaration came to shape his jurisprudence in civil rights cases. As of Virginia v. Black, Justice Thomas’ hate-speech jurisprudence — at least when the expression of hate is the burning cross — indicates that race sometimes influences his non-civil rights jurisprudence as well. Rather than asking how the Framers would have decided a case involving cross-burning, Justice Thomas focuses on the impact cross-burning has had, and continues to have, on African-Americans. He is his grandfather’s son.
Scott D. Gerber is professor of law at Ohio Northern University College of Law and senior research scholar in law and politics at the Social Philosophy and Policy Center. He is the author of, among other works, First Principles: The Jurisprudence of Clarence Thomas (NYU Press, 1999; expanded ed. 2002) and The Law Clerk: A Novel (Ohio Northern University Press/Kent State University Press, 2007).