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Foreword: Justice Thomas and the First Amendment

By Erwin Chemerinsky
Special to the First Amendment Center Online

Erwin Chemerinsky

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 wonderful collection of essays in the First Amendment Center’s online symposium on Justice Clarence Thomas and the First Amendment leads to a stark conclusion: Justice Thomas is the most radical member of the current Supreme Court and likely one of the most radical justices in history in his desire to overrule precedent and dramatically change the law. Virtually every essay describes an area where Justice Thomas, in concurring or dissenting opinions, has urged major departures from prior decisions and doctrines.

For example, Thomas Goldstein describes how Justice Thomas would overrule prior decisions and end all First Amendment protection for speech by prisoners and students. David L. Hudson Jr. focuses on Thomas' view that prisoners have no free-speech rights at all. Prof. Richard Hasen details how Thomas would reverse precedents and find virtually all campaign-finance laws, except for some disclosure requirements, to be unconstitutional. Bruce E.H. Johnson and Stephen Bates examine how the justice would overrule earlier decisions and provide much greater protection for many types of commercial speech.

Read together, the essays show that the whole of Justice Thomas’ jurisprudence is more than just the sum of its parts. As a whole, it reveals a justice who is ready and willing to refashion large areas of constitutional law. Prof. William Araiza calls this the “jurisprudence of extremism.” Indeed, for Justice Thomas has defined for himself a place on these issues at the extreme of the Court and the extreme of constitutional thought.

Interestingly, the essays show that Justice Thomas’ approach would not consistently point in a pro-speech or anti-speech direction. In some areas, such as in striking down campaign-finance regulations and in providing greater protection for commercial speech, Thomas would have the Court go much further in safeguarding speech. Likewise, Prof. Robert O’Neil shows that Thomas is most emphatic among the justices in indicating his desire to invalidate campus speech codes. But in other areas, such as ending all free-speech protection for secondary students and prisoners, Justice Thomas would allow significant additional restrictions on expression.

The most radical change is his view that state and local governments do not need to comply with the establishment clause. Under this idea there literally could be an official religion of a state, required prayer in schools, and unlimited government aid to religious institutions provided state law permitted it. That is, for Justice Thomas nothing in the First Amendment would prohibit such a religious regime.

The only area that does not fit the pattern is Justice Thomas’ voting in sexual-speech cases. Prof. Geoffrey Stone shows that in this area, Thomas has taken an approach that puts him exactly in the middle of the Court in his voting pattern.

3 explanations
What accounts for Justice Thomas’ radicalism? The authors of the essays offer several explanations. First, Thomas obviously gives little, if any, weight to stare decisis. Almost all of the essays make this point. Justice Antonin Scalia, who shares Justice Thomas’ politics and approach to constitutional interpretation, has not joined Thomas in most of these areas. The difference is that Justice Scalia gives more deference to precedent.

Second, Justice Thomas strongly prefers bright-line rules to balancing tests or flexible standards. Eric Citron powerfully makes this point. For example, Justice Thomas would replace the current approaches to student and prisoner speech, which are very deferential to institutional authority, with a bright-line rule of absolutely no speech protection. He would replace the current confusion over the appropriate test for the establishment clause with a bright-line rule that the provision doesn’t apply to state and local governments at all. Yet several of the authors point out that Justice Thomas could not eliminate the need for all balancing. For instance, Mary-Rose Papandrea shows that Justice Thomas’ approach to regulate the broadcast media would inevitably involve the same type of balancing that he often criticizes.

Third, Justice Thomas is willing to adhere to his originalist philosophy even when it means dramatic changes in the law. Prof. Araiza convincingly points to this view as part of the explanation for Thomas’ approach to First Amendment questions. Originalism, though, is particularly difficult to apply in the First Amendment context because the problems — regulation of the media, campaign contributions, sexual speech, etc. — are so different from anything envisioned by the Framers.

No normative appraisals
All of this, of course, is descriptive. Interestingly, most of the authors stay away from normative appraisals of Justice Thomas’ jurisprudence. Thomas Goldstein praises Justice Thomas for being a “big thinker” and says, “The Supreme Court desperately needs big thinkers like Justice Thomas.” He also praises the candor of Thomas’ opinions. Other authors echo this. There is no strong criticism of Justice Thomas in the essays.

But contrary to Thomas Goldstein’s view, change is not inherently good and big thinking in the form of radically changing the law is not inherently desirable. The essays force the reader to confront directly whether the changes Justice Thomas would bring about are good or bad for the law. For example:

  • Would it be better if there were no free-speech rights of students and prisoners?
  • Would it be better if virtually all campaign-finance laws were unconstitutional?
  • Would it be better if state and local governments were free to advance and support religion however they wanted?

For that matter, methodologically, would it be better if stare decisis were no longer followed in constitutional law? Would it be better if the Court adhered to bright-line rules and followed an originalist approach to constitutional interpretation?

These are the issues, as to the First Amendment specifically and constitutional law more generally, that must be faced. Some eagerly embrace Justice Thomas’ view of the First Amendment and the Constitution, while others recoil from it and see it as a repudiation of everything the First Amendment should be about.

This collection of essays and the bibliographic and other materials accompanying it provide a wonderful basis for examining and evaluating Justice Thomas and the First Amendment.

Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science at Duke University. He is the author of four books: Federal Jurisdiction (Aspen Law & Business, 5th ed., 2007), Constitutional Law: Principles and Policies (Aspen Law & Business, 3d ed., 2006), Constitutional Law: Casebook (Aspen Law & Business, 2d ed., 2005), and Interpreting the Constitution (Praeger, 1987). Prof. Chemerinsky frequently argues appellate cases in the U.S. Supreme Court and the U.S. Courts of Appeals. Among other cases, he has argued Van Orden v. Perry (2005) (a challenge to a Texas Ten Commandments monument) and Tory v. Cochran (2005) (a First Amendment defamation case).


Online symposium: Justice Thomas & the First Amendment

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