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Justice Thomas and sexual expression

By Geoffrey R. Stone
Special to the First Amendment Center Online

Geoffrey Stone

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

In light of Justice Clarence Thomas’s overall social conservatism and his commitment to “originalist” constitutional interpretation, an approach that would seem to suggest that the First Amendment protects primarily political speech, it would be no surprise to learn that Thomas is particularly unlikely to hold regulations of sexual expression unconstitutional.

Voting record
Indeed, one would expect him to align with Justice Antonin Scalia in such cases. Scalia has voted as one would predict. In the 10 cases involving sexual expression in which both Thomas and Scalia have participated, Justice Scalia has rejected the First Amendment claim 90% of the time. Moreover, Scalia has rejected the First Amendment claim 100% of the time in the eight non-unanimous decisions involving sexual expression. Justice Scalia dissented in all three cases in which the Court, in non-unanimous decisions, upheld the First Amendment claim.

And what of Justice Thomas? In all 10 sexual-expression cases, Thomas voted with the majority. He is the only justice to vote with the majority in all 10 decisions. In four of these cases, or 40%, Thomas voted to uphold the First Amendment claim. (See tables below.) The other justices voted to uphold the First Amendment claim 44% of the time. Thomas was therefore very close to the average in the percentage of cases in which he voted to sustain the First Amendment claim.

Sexual-expression cases in which Thomas & Scalia voted
Justice First Amendment claim upheld First Amendment claim denied
Thomas 40% 60%
Scalia 10% 90%
Others (avg.) 44% 56%

Non-unanimous decisions in sexual-expression cases
Justice First Amendment claim upheld First Amendment claim denied
Thomas 37% 63%
Scalia 0% 100%
Others (avg.) 42% 58%

In three of the eight non-unanimous decisions involving sexual expression, the majority held the law unconstitutional. In those eight cases, Justice Thomas voted to sustain the First Amendment claim 37% of the time. The other justices voted to sustain the First Amendment claim in those eight cases 42% of the time. Thus, in non-unanimous decisions, Thomas was again very close to the average in the percentage of cases in which he voted to invalidate the regulation of sexual expression.

For the sake of comparison, it is worth reiterating that Justice Scalia voted to reject the First Amendment claim in nine of the 10 cases and in all eight of the non-unanimous decisions. At the other end of the spectrum, Justice John Paul Stevens voted to uphold the First Amendment claim in nine of the 10 cases and in all eight of the non-unanimous decisions.

What all this suggests is that in cases involving sexual expression, Justice Thomas is a centrist. He has consistently voted in the middle of the Court. This is no doubt surprising. What, if anything, does this tell us about Thomas? To answer that question, we must examine the three non-unanimous decisions in which he voted to uphold the First Amendment claim, for it was in those cases that he and Scalia parted company.

United States v. Playboy Entertainment Group
In Playboy Entertainment Group, decided in 2000, the Court, in a 5-4 decision, invalidated a federal law that required cable operators who provided channels “primarily dedicated to sexually-oriented programming” either to “fully scramble” those channels or to limit their transmission to between 10 p.m. and 6 a.m., when children were unlikely to be in the audience. In his opinion for the Court, Justice Anthony Kennedy noted that the statute was “content-based,” that it was not limited only to “obscene” material, and that it was intended to protect “young viewers.”

Kennedy reasoned that, as a content-based regulation, the restriction could “stand only if it [is] narrowly tailored to promote a compelling Government interest.” Kennedy concluded that the challenged law did not satisfy this standard because “a less restrictive alternative is available: [the law] requires cable operators to [fully] block undesired channels at individual households upon request,” with no limitation as to whether the programming is sexually oriented or indecent.

The four dissenting justices, in an opinion by Justice Stephen Breyer, argued that Justice Kennedy’s less-restrictive alternative was not as effective as the challenged law in promoting the government’s compelling interests in helping parents protect their children from such material and in enabling the government to shield children from such material. In a separate dissenting opinion, Justice Scalia argued that because the sexual material regulated by the law was being marketed by “commercial entities which engage in 'the sordid business of pandering,'” it could all be deemed “obscene” within the meaning of the First Amendment.

Justice Thomas concurred. Notably, he maintained that the government had “ample” authority to prohibit the broadcast of constitutionally unprotected obscenity. But, Thomas observed, the government had litigated this case “on the assumption that the programming at issue is not obscene, but merely indecent.” The government therefore “asks us to dilute our stringent First Amendment standards to uphold [the federal act] as a proper regulation of protected (rather than unprotected) speech.” Thomas was “unwilling to corrupt the First Amendment to reach this result.” Indeed, he wrote, “the ‘starch’ in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.”

In effect, then, unlike the four dissenters, in Playboy Entertainment Thomas adhered strictly to two fundamental First Amendment doctrines. First, that there is a sharp line between “protected” and “unprotected” (or “high” value and “low” value) expression. Second, that content-based regulations of high-value expression must be tested by extremely rigorous standards, even if the speech is characterized by the government as “indecent.” Unlike the dissenters, who were willing to blur these distinctions in order “to accommodate the enforcement choices of the Government,” Thomas insisted on clear and firm rules in order to keep “the ‘starch’ in our constitutional standards.” Moreover, Thomas clearly rejected Scalia’s effort to expand the concept of obscenity to reach the material at issue in this case.

Ashcroft v. Free Speech Coalition
In Free Speech Coalition, decided in 2002, the Court, voting 6-3, invalidated the Child Pornography Prevention Act of 1996. The act extended the prohibition against child pornography to sexually explicit images that appeared to depict minors, but were in fact produced without using real children — either by computer imaging or by using adults who look like children. Justice Thomas joined Justice Kennedy’s opinion for the Court.

Justice Kennedy distinguished the Court’s 1982 decision New York v. Ferber, which had upheld a state child-pornography law “because of the State’s interest in protecting the children exploited by the production process.” Although conceding that child pornography that does not use real children to produce the material might “threaten children in other, less direct ways,” he emphasized that these other harms flow “from the content of the images, not from the means of their production.”

The government’s strongest argument was that “the possibility of producing images by using computer imaging makes it very difficult for [the government] to prosecute those who produce pornography by using real children.” The argument, Kennedy observed, “is that protected speech may be banned as a means to suppress unlawful speech.” Kennedy emphatically rejected this argument, noting that it “turns the First Amendment upside down.”

Justices Sandra Day O’Connor, Antonin Scalia and Chief Justice William Rehnquist dissented. They argued that if the act were narrowly interpreted to limit only computer-generated images that are “virtually indistinguishable” from real child pornography, it would satisfy “strict scrutiny” because it would then be narrowly tailored to serve the compelling government interest in eliminating real child pornography.

As in Playboy Entertainment, Justice Thomas filed a concurring opinion. He observed that “if technological advances” eventually reach a point where they actually (as opposed to speculatively) “thwart prosecution of ‘unlawful speech,’ the Government may well have a compelling interest [in] regulating some narrow category of ‘lawful speech’ in order to enforce effectively laws against pornography made through the abuse of real children.” Thus, Thomas once again adhered to a more rigorous application of “strict scrutiny” in the realm of sexual expression than Scalia and several other justices.

Ashcroft v. ACLU
In Ashcroft v. ACLU (II), decided in 2004, the Court, in a 5-4 decision, held that a federal district court had not abused its discretion in entering a preliminary injunction against enforcement of the federal Child Online Protection Act, which declared it unlawful for any person knowingly to post on the World Wide Web, for “commercial purposes,” any content that is “harmful to minors.” COPA defined “harmful to minors” as material that satisfied the 1973 Miller v. California standards for obscenity, as applied to minors. The act recognized an affirmative defense for those who reasonably attempted to prevent minors from gaining access to prohibited materials by requiring some form of age verification.

Thomas joined Kennedy’s opinion for the Court. Kennedy justified the decision on the ground that there were “plausible, less restrictive alternatives to COPA.” Specifically, he argued that the availability of filtering software would enable parents to shield their children from prohibited material without interfering with the right of adults to access such material without having to identify themselves.

In dissent, Justice Breyer, joined by Rehnquist and O’Connor, argued that COPA passed even “the most exacting scrutiny” because the burden on protected speech was “modest,” the government’s interest “in protecting minors from exposure to commercial pornography” was “compelling,” and the availability of filtering software was not an adequate, less-restrictive alternative because filters are imperfect, they cost money, not all parents will use them, and they don't protect children outside their own homes. In a separate dissenting opinion, Justice Scalia reiterated his argument in Playboy Enterprises that because the sexual expression regulated by the act amounted to “pandering” it could be banned entirely under the traditional obscenity doctrine.

As in Playboy Enterprises and Ashcroft v. Free Speech Coalition, Justice Thomas held to a rigorous application of strict scrutiny for the regulation of non-obscene sexual expression and rejected Scalia’s effort to loosen the constitutional definition of “obscenity.”

Thomas' voting pattern on sexual expression
These three decisions do not suggest that Justice Thomas is a committed civil libertarian when it comes to sexual expression. In other cases, he voted with the majority to uphold a broad range of restrictions of sexual expression, including:

If there is a pattern to be extracted from these cases, it is this: Justice Thomas accords the government considerable deference when it: (a) regulates obscenity (Alexander and Ashcroft v. ACLU, 2002), (b) restricts sexual expression by regulating conduct rather than content (Erie, Alameda and Littleton), or (c) restricts sexual expression as a condition of receiving federal funds (American Library Association). But when the government directly restricts non-obscene sexual expression on the basis of content, Thomas insists on the rigorous application of the “most exacting scrutiny” and has consistently invalidated such legislation.*

* This pattern is reaffirmed in the fourth case in which Justice Thomas voted to invalidate a law regulating sexual expression — the unanimous decision in Reno v. ACLU (1993), in which the Court invalidated a federal restriction of “indecent” speech on the Internet.

Geoffrey R. Stone is the Distinguished Service Professor of Law at the University of Chicago Law School. He is the author of Perilous Times: Free Speech in Wartime (W.W. Norton 2004). His most recent books are Top Secret: When Our Government Keeps Us in the Dark (Rowman & Littlefield 2007) and War and Liberty: An American Dilemma (W.W. Norton 2007).


Online symposium: Justice Thomas & the First Amendment

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