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Analysis
 
Justice Thomas’ First Amendment case record
 

By Ronald K.L. Collins
First Amendment scholar
and Alyssa Work
First Amendment Center intern
10.08.07

Tallies of written opinions
     
I. Total First Amendment opinions: 40
     
II. Total majority First Amendment opinions: 6
  Total majority First Amendment expression opinions: 5
  Total majority First Amendment religion opinions: 1 [2]*
     
III. Total dissenting First Amendment opinions: 8
  Total dissenting First Amendment expression opinions: 7
  Total dissenting First Amendment religion opinions: 1
     
IV. Total concurring First Amendment opinions: 21
  Total concurring First Amendment expression opinions: 16
  Total concurring First Amendment religion opinions: 5 [6]*
     
V. Total concurring & dissenting in part First Amendment opinions: 3
  Total expression concurring & dissenting in part First Amendment opinions: 3
  Total religion concurring & dissenting in part First Amendment opinions: 0
     
VI. Total dissenting from denial of certiorari expression opinions: 2


* The holdings in Good News Club v. Milford Central School (2001) and Rosenberger v. Rector (1995) rested on both free-expression and establishment-clause grounds. Hence, each case is counted only once in the total tally.


I. Expression: majority opinions

Clingman v. Beaver (2005)
Ashcroft v. ACLU (2002)
Good News Club v. Milford Central School (2001)
Shaw v. Murphy (2001)
Rubin v. Coors Brewing Co. (1995)

II. Expression: concurring opinions

Morse et al. v. Frederick (2007) (concurring in the judgment)
Tennessee Secondary School Athletic Assoc v. Brentwood Academy (2007) (concurring in the judgment)
Randall v. Sorrell (2006) (concurring in the judgment)
Beard v. Banks (2006) (concurring in the judgment)
Johanns v. Livestock Marketing Association (2005) (concurring)
Overton v. Bazzetta (2003) (concurring in the judgment)
Ashcroft v. Free Speech Coalition (2002) (concurring in the judgment)
Thompson v. Western States Medical Center (2002) (concurring)
United States v. United Foods, Inc. (2001) (concurring)
Lorillard Tobacco Co. v. Reilly (2001) (concurring in part & concurring in the judgment)
United States v. Playboy Entertainment Group (2000) (concurring)
Buckley v. American Constitutional Law Foundation (1999) (concurring in the judgment)
Greater New Orleans Broadcasting Association v. United States (1999) (concurring in the judgment)
44 Liquormart v. Rhode Island (1996) (concurring in part & in the judgment)
McIntyre v. Ohio Elections Commission (1995) (concurring in the judgment)
Rosenberger v. Rector & Visitors of the University of Virginia (1995) (concurring)

III. Expression: dissenting opinions

Virginia v. Black (2003) (dissenting)
Federal Election Commission v. Beaumont (2003) (dissenting)
Federal Election Comm. v. Colorado Republican Federal Campaign Committee (2001) (dissenting)
Nixon v. Shrink Missouri Government PAC (2000) (dissenting)
City of Chicago v. Morales (1999) (dissenting)
Glickman v. Wileman Brothers & Elliott, Inc. (1997) (dissenting)
Dawson v. Delaware (1992) (dissenting)

IV. Expression: concurring & dissenting in part opinions

McConnell v. Federal Election Commission (2003) (concurring & dissenting in part)
Colorado Republican Federal Campaign Commission v. FEC (concurring & dissenting in part)
Denver Area Educational Telecommunications Consortium v. FCC (1996) (concurring & dissenting in part)

V. Expression: denial of certiorari, dissenting opinions

Borgner v. Florida Board of Dentistry (2002) (dissenting)
Avis Rent a Car System, Inc., et al. v. Aguilar, et al. (2000) (dissenting)

VI. Religion: majority opinions

Good News Club v. Milford Central School (2001)
Mitchell v. Helms (2000) (announcing judgment of Court)

VII. Religion: concurring opinions

Cutter v. Wilkinson (2005) (concurring)
Van Orden v. Perry (2005) (concurring)
Elk Grove Unified School Dist. v. Newdow (2004) (concurring in the judgment)
Zelman v. Simmons-Harris (2002) (concurring)
Capitol Square Review & Advisory Board v. Pinette (1995) (concurring)
Rosenberger v. Rector & Visitors of the University of Virginia (1995) (concurring)

VIII. Religion: dissenting opinion

Locke v. Davey (2004) (dissenting)

IX. Expression & religion opinions organized topically

Anonymous expression
McIntyre v. Ohio Elections Commission (1995) (concurring in the judgment

Campaign regulations
Randall v. Sorrell (2006) (concurring in judgment)
Clingman v. Beaver (2005)
McConnell v. Federal Election Commission (2003) (concurring & dissenting in part)
Federal Election Commission v. Beaumont (2003) (dissenting)
Federal Election Comm. v. Colorado Republican Federal Campaign Committee (2001) (dissenting)
Nixon v. Shrink Missouri Government PAC (2000) (dissenting)
Buckley v. American Constitutional Law Foundation (1999) (concurring in judgment)
Colorado Republican Federal Campaign Committee v. FEC (1996) (concurring & dissenting in part)
McIntyre v. Ohio Elections Commission (1995) (concurring in the judgment

Commercial speech
Thompson v. Western States Medical Center (2002) (concurring)
Borgner v. Florida Board of Dentistry (2002) (dissenting)
Lorillard Tobacco Co. v. Reilly (2001) (concurring in part & concurring in the judgment)
Greater New Orleans Broadcasting Association v. United States (1999) (concurring in the judgment)
44 Liquormart v. Rhode Island (1996) (concurring in part & in the judgment)
Rubin v. Coors Brewing Co. (1995)

Compelled speech
Johanns v. Livestock Marketing Association (2005) (concurring)
United States v. United Foods, Inc. (2001) (concurring)
Glickman v. Wileman Brothers & Elliott, Inc. (1997) (dissenting)

Establishment clause & incorporation doctrine
Cutter v. Wilkinson (2005) (concurring opinion)
Van Orden v. Perry (2005) (concurring)
Elk Grove Unified School Dist. v. Newdow (2004) (concurring in the judgment)
Zelman v. Simmons-Harris (2002) (concurring)
Mitchell v. Helms (2000) (announcing judgment of Court)
Rosenberger v. Rector & Visitors of the University of Virginia (1995) (concurring)
Capitol Square Review & Advisory Board v. Pinette (1995) (concurring)

Freedom of assembly
City of Chicago v. Morales (1999) (dissenting)

Freedom of association
Clingman v. Beaver (2005)
Dawson v. Delaware (1992) (dissenting

Hate speech
Virginia v. Black (2003) (dissenting)
Capitol Square Review & Advisory Board v. Pinette (1995) (concurring)

Hostile workplace environment
Avis Rent a Car System, Inc., et al. v. Aguilar, et al. (2000) (dissenting)

Prior restraint
Avis Rent a Car System, Inc., et al. v. Aguilar, et al. (2000) (dissenting)

Prisoners’ expression
Beard v. Banks (2006) (concurring in the judgment)
Overton v. Bazzetta (2003) (concurring in the judgment)
Shaw v. Murphy (2001)

Religious expression
Good News Club v. Milford Central School (2001)
Rosenberger v. Rector & Visitors of the University of Virginia (1995) (concurring)

Religion: prisoners’ rights
Cutter v. Wilkinson (2005) (concurring opinion)

Religion: college scholarships
Locke v. Davey (2004) (dissenting)

Sexual expression
Ashcroft v. ACLU (2002)
Ashcroft v. Free Speech Coalition (2002) (concurring in the judgment)
United States v. Playboy Entertainment Group (2000) (concurring)
Denver Area Educational Telecommunications Commission v. FCC (1996) (concurring in part, dissenting in part)

Schools & athletic-recruiting practices
Tennessee Secondary School Athletic Assoc v. Brentwood Academy (2007) (concurring in the judgment)

Student expression
Morse et al. v. Frederick (2007) (concurring in the judgment

Alyssa Work is an intern at the First Amendment Center.


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