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Justice Thomas and prisoners’ freedom of expression

By David L. Hudson Jr.
First Amendment scholar

David L. Hudson Jr.

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

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. Constitution.

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 Turner 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 rehabilitation.

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 challenges.”

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 precedent.

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. Safley). 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 The 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 (2007).


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Online symposium: Justice Thomas & the First Amendment

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