FAN 65 (First Amendment News) Does Justice Thomas believe in a race-hate exception to the First Amendment?

The Ku Klx Klan marched frequently in Savannah [where Clarence Thomas grew up], and Klan members dominated the police ranks of the 1930s, ’40s, and ’50s . . . Ken Foskett, Judging Thomas: The Life & Times of Clarence Thomas (2004)

As a child in the Deep South, I’d grown up fearing the lynch mobs of the Ku Klux Klan . . . . Clarence Thomas, My Grandfather’s Son: A Memoir (2007)

One has to wonder whether his vote was not at least in some measure affected by the particular license plate at issue — displaying the Confederate flag. David Cole, quoted in the National Law Journal, June 22, 2015

If you would better understand Justice Clarence Thomas’s vote in the Confederate license-plate case handed down last week, it may be helpful to turn the clock back to December 11, 2002. That was a rare moment in the modern history of the Supreme Court. For it was one of the few times that Justice Thomas spoke up during oral arguments. The case was Virginia v. Black (audio here). As revealed in the transcript of that case involving a First Amendment challenge to a state cross-burning statute, Justice Thomas expressed himself boldly when he questioned Michael Dreeben of the Department of Justice. “Thomas spoke [i]n a deep, booming, voice, shaking with emotion”:

Justice Clarence Thomas (Randy Snyder, Associated Press)

Justice Thomas: “[I]t’s my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and . . . the Ku Klux Klan,  and this was a reign of terror and the cross was a symbol of that reign of terror. . . [Wasn’t] that significantly greater than [any] intimidation or a threat?”

Mr. Dreeben: “Well, I think they’re coextensive, because it is –“

Justice Thomas: “Well, my fear is, Mr. Dreeben, that you’re actually understating the symbolism [and] the effect of the cross, the burning cross. I indicated, I think, in the Ohio case, that the cross was I indicated, . . . that the cross was not a religious symbol and that it . . . was intended to have a virulent effect.  And . . .  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 was equally forceful in his published dissent in that First Amendment case: “‘The world’s oldest, most persistent terrorist organization is not European or even Middle Eastern in origin. Fifty years before the Irish Republican Army was organized, a century before Al Fatah declared its holy war on Israel, the Ku Klux Klan was actively harassing, torturing and murdering in the United States. Today . . . its members remain fanatically committed to a course of violent opposition to social progress and racial equality in the United States.” M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia vii (1991). To me, the majority’s brief history of the Ku Klux Klan only reinforces this common understanding of the Klan as a terrorist organization, which, in its endeavor to intimidate, or even eliminate those its dislikes, uses the most brutal of methods.”

In the News

→ Judge Andrew Napolitano: “NAACP’s call to prosecute hate groups violates First Amendment – hate speech is protected,” Bizpac Review, June 23, 2015 (Fox News video clip)

It is true, nonetheless, that Justice Thomas signed onto Justice Antonin Scalia’s majority opinion in R.A.V. v. City of St. Paul (1992). That case involved a successful First Amendment challenge to a state law prohibiting the display of a symbol that one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” (Justice Thomas was silent during oral arguments in R.A.V.)

In his dissent in Virginia v. Black, however, Justice Thomas sought to disassociate himself from any expansive reading of R.A.V.: “I believe that the majority errs in imputing an expressive component to the activity in question . . . (relying on one of the exceptions to the First Amendment’s prohibition on content-based discrimination outlined in R. A. V. v. St. Paul) . . . . In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means.” But there was more here than adherence to precedent; there was the matter of understanding the nature of bigotry: “In every culture,” wrote Thomas, “certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred and the profane. I believe that cross burning is the paradigmatic example of the latter.”

And then there was his vote and concurrence in Capitol Square Review & Advisory Board v. Pinette (1995), wherein he wrote: “I join the Court’s conclusion that petitioner’s exclusion of the Ku Klux Klan’s cross cannot be justified on Establishment Clause grounds. But the fact that the legal issue before us involves the Establishment Clause should not lead anyone to think that a cross erected by the Ku Klux Klan is a purely religious symbol. The erection of such a cross is a political act, not a Christian one. In Klan ceremony, the cross is a symbol of white supremacy and a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan.”

Admittedly, there any number of reasons (nuanced ones) that might explain Justice Thomas’s votes in R.A.V. and Pinette, his dissent in Virginia v. Black, and his vote in the 5-4 ruling in Walker v. Sons of Confederate Veterans. But in light of that vote, and mindful of Justice Samuel Alito’s compelling dissent in Walker, one wonders: Could it be that lingering beneath all of this is some sympathy for a kind of a race-hate exception to the First Amendment? I assert nothing definitive here; I am only suggesting that there may be something in Thomas’s thinking that could allow for an exception to current First Amendment doctrine. Or consider this: Might racial bigotry be an important factor in Justice Thomas’s application of judicial formulas such as the incitement test?  In that regard, one would think that Justice Thomas might well agree with a point Justice Elena Kagan (who was in the majority) made during oral arguments in Walker:

Mr. James George: “Well, the ­­ this Court’s rule ­­ law on incitement, going back to Brandenburg v. Ohio and the Ku Klux Klan rally that this Court decided was not incitement, it ­­ is pretty thin at this point in our history, because I don’t know what the rule of incitement would be today.”

Justice Kagan: “No, but Mr. George, just the worst of the worst, whether it’s the swastika or whether it’s the most offensive racial epithet that you can imagine, and if that were on a license plate where it really is provoking violence of some kind. You know, somebody is going to ram into that car . . . .”­­

Similarly, Justice Thomas might well approve of the following statement made during oral arguments by Justice Stephen Breyer (author of the majority opinion in Walker): “Now, is there something to be said for Texas? Yes. What they’re trying to do is to prevent their official imprimatur from being given to speech that offends people.” Not just any offense, but a racial offense. It is precisely that kind of racial offense that motivates the current campaign in South Carolina to remove the Confederate flag from the state capitol grounds.

While his early votes in cases such as R.A.V. and Pinette suggest that race is not a determinative factor in Justice Thomas’s First Amendment jurisprudence, since 2002 there seems to have been shift in his view. Both his dissent in Virginia v. Black and his vote in Walker may indeed be signs of that purported shift. In the earlier, pre-Black cases, Justice Thomas voted to sustain the First Amendment claim but then voiced his disapproval of the bigoted speech at issue. In the post-Black cases, however, Justice Thomas voted to deny the First Amendment claim in such cases.

Of course, there is a good dollop of speculation here, which is therefore not beyond fair challenge. That said, sometimes it is easy to be oblivious to the obvious, to that which transcends niceties and nuances. And that something may be a key factor in Justice Thomas’s constitutional take on race-hate speech and the First Amendment. Again, I do not offer this as a hard-and-fast conclusion, but rather as something to consider — think of it as a possibility waiting to be proven.

Professor Scott Gerber

Given my reservations, I invited Professor Scott Gerber, author of First Principles: The Jurisprudence of Clarence Thomas (2002), to comment on my hypothesis: “I agree with your perceptive observation about Justice Thomas’s approach to race-hate speech and the First Amendment,” he told me. “Indeed, Justice Thomas has come as close as any member of the Court ever has to accepting the Critical Race Theory approach to the issue. I have long mentioned this to my students when I teach Virginia v. Black, and I made a similar observation in a symposium essay I wrote on Justice Thomas’s First Amendment jurisprudence. The Court’s recent Confederate license plate decision provides additional support for this conclusion, and it also reminds us of how sophisticated Justice Thomas’s thinking is, especially on matters of race.”

→ See also Adam Clymer, “About That Flag on the Judge’s Desk,” New York Times, July 19, 1991

→ Ronald Collins, “The 2014 Term & the First Amendment — Surprising twists & turns,” SCOTUSblog, Juen 19, 2015

→ Tony Mauro, “A Big Fuss Over the First Amendment,” National Law Journal, June 22, 2015

It is important, by the way, to emphasize that this case is not about the Confederate flag. In light of the decision in Walker, the state of Texas is now permitted to allow “Choose Life” license plates, while refusing to permit “Choose Choice” license plates. It is now permitted to allow Confederate flag license plates, while refusing to permit NAACP license plates. It is now permitted to allow Pro-Gun license plates, while refusing to permit Anti-Gun license plates. Justice Alito had it right. Such state-discrimination among private speakers based on the specific messages they wish to convey violates the First Amendment — even on license plates. — Geoffrey Stone 

1. Geoffrey Stone, “Texas License Plates, the Confederate Flag and the Supreme Court,” Huffington Post, June 20, 2015
2. Mark Graber, “Acceptable Government Speech,” Balkinization, June 19, 2015
3. Eugene Volokh, “Government free to pick and choose which proposed license plate designs to allow, notwithstanding the First Amendment,” Volokh Conspiracy, June 19, 2015
4. Eugene Volokh, “Supreme Court reaffirms broad prohibition on content-based speech restrictions, in today’s Reed v. Town of Gilbert decision,” Volokh Conspiracy, June 18, 2015
5. “Supreme Court renders decisions on First Amendment,” PBS NewsHour, June 18, 2015
6. Ruthann Robson, “Sign Ordinance Violates First Amendment: Court Decides Reed v. Town of Gilbert,” Constitutional Law Prof Blog, June 18, 2015
7. Adam Liptak, “Limits on Church Signs Ruled Unconstitutional,” New York Times, June 18, 2015
8. Lyle denniston, “Opinion analysis: The message determines the right,” SCOTUSblog, June 18, 2015
9. Ilya Shapiro, Supreme Court Allows Texas to Offend the First Amendment,” Cato Institute, June 18, 2015

Upcoming Events re Review of 2014-2015 Supreme Court Term

1. American Constitution Society, July 1, 2015 (Washington, D.C.) (see state chapter events here)
2. Heritage Foundation, July 9, 2015 (Washington, D.C.)
3. U.C. Irvine Law School, July 13, 2015 (Irvine, CA)

Bishops back First Amendment Defense Act / Human Rights Campaign Opposes It

This from Catholic World News: “Archbishop Salvatore Cordileone, the chairman of the US bishops’ Subcommittee for the Promotion and Defense of Marriage, and Archbishop William Lori, chairman of the bishops’ Ad Hoc Committee for Religious Liberty, have offered strong support for the First Amendment Defense Act.”

“Introduced in Congress by Rep. Raúl Labrador (R-ID) and Sen. Mike Lee (R-UT), the legislation “would bar the federal government from discriminating against individuals and organizations based upon their religious beliefs or moral convictions that marriage is the union of one man and one woman or that sexual relations are properly reserved to such a marriage,” the United States Conference of Catholic Bishops (USCCB) explained.”

→ And this from the Human Rights Campaign: “This week, anti-equality Rep. Raul Labrador (R-ID) and Sen. Mike Lee (R-UT) introduced the so-called First Amendment Defense Act  (S. 1598, H.R. 2802) – legislation that would create a breakdown of government services and runaway litigation by giving federal employees and contractors  a right to sue the federal government over opposition to marriage equality. The Human Rights Campaign (HRC) the nation’s largest lesbian, gay, bisexual, and transgender (LGBT) civil rights organization condemned the legislation as reckless, calling on Congress to prove they are not out of touch with the far majority of Americans who support marriage equality.”

“Not only is it wrong to promote discrimination with taxpayers’ money, it’s even worse to allow those taxpayer funds to be used to reward discriminatory actions by federal employees,” said HRC Government Affairs Director David Stacy. ‘We call on members of Congress to oppose this reckless and irresponsible legislation that has nothing to do with the First Amendment and everything to do with taxpayer-funded discrimination. It’s time for Congress to prove they are not out of touch and to stand on the right side of history with the far majority of Americans who support fairness and equality for all Americans.'”

→ See also, Mike Lee, “First Amendment Defense Act protects critical ‘space of freedom‘,” Deseret News, June 18, 2015

Forthcoming Feature Documentary Asks: “Can We Take A Joke?”

“A few years ago FIRE started working with director Ted Balaker on a small video about the censorship of comedy on campus. Now, with the help of the DKT Liberty Project, Ted is completing a new major feature documentary titled Can We Take a Joke? The documentary already features interviews with Adam Carolla, Gilbert Gottfried, Penn Jillette, Jim Norton, Lisa Lampanelli, Heather McDonald, Karith Foster, me, Jon Ronson, Chris Lee, Ron Collins, Bob Corn-Revere, and Jonathan Rauch.”

“The timing is perfect. The year kicked off with comedian Chris Rock saying that he did not like playing campuses anymore, and that comedy legend George Carlin didn’t like to either. Now, with Jerry Seinfeld and Bill Maher condemning the oversensitivity and humorlessness of college students, the world seems ready to make a stand for comedy. The through-line of the film follows the life and career of famous iconoclastic comedian Lenny Bruce, making the argument that Lenny Bruce would not stand a minute on the modern college campus. The film also features a few important FIRE cases in which censorship tried to crush satire, parody, and comedy on campus — sometimes successfully.”

Source: Greg Lukianoff, writing for Ricochet, June 22, 2015 (see link for more info)

Campus Free Speech Watch

1. Jonathan Peters, “Removal of faculty advisers sparks concern about independence of student publications,” Columbia Journalism Review, June 22, 2015
2. Robby Soave, “The University of Californias Insane Speech Police,” The Daily Beast, June 22, 2015
3. Bruce Thorton, “Inside Every Liberal Is a Totalitarian Screaming to Get Out: The UC’s Assault on Academic Free Speech,” Front Page Mag., June 22, 2015
4. Mike Adams, “Mock Trials at UNC,” Town Hall, June 22, 2015
5. “‘First Amendment protections on public college and university campuses’,” The College Fix, June 20, 2015
6. Hans Bader, “Obama administration pressures schools to adopt unconstitutional speech codes,” Examiner, June 19, 2015
7. Mike Adams, “First Amendment Sensitivity Training,” Town Hall, June 18, 2015
8. “Northwestern University: Censorship of Faculty-Produced Bioethics Journal with ‘Bad Girls’ Theme,” FIRE, June 16, 2015

→ FIRE’s Annual Summer Student Conference, July 24-26, 2015

David Schulz

New YouTube Posts

• David Schulz on First Amendment Law and the Media Freedom & Information Access Clinic (Yale Law School)
• Marcia Coyle, “Supreme Court Renders Decisions on First Amendment,” PBS Newshour, posted June 23, 2015

Notable Blog Commentary

• Eugene Volokh, “UC teaching faculty members not to criticize race-based affirmative action, call America ‘melting pot,’ and more,” Volokh Conspiracy, June 16, 2015

New & Forthcoming Scholarly Articles

1. Genevieve Lakier, “The Invention of Low-Value Speech,” Harvard Law Review (2015)
2. Frederick Schauer, “Out of Range: On Patently Uncovered Speech,” Harvard Law Review Forum (2015)
3. Michael Kagan, “Do Immigrants Have Freedom of Speech?,” California Law Review Circuit (forthcoming, 2015)
4. Jeffrey Abramson, “Searching for Reputation: Reconciling Free Speech and the ‘Right to Be Forgotten’,” 7 N. C. J. of Law and Tech. (forthcoming, Oct. 2015)

News, Op-eds & Blog Commentaries

→ Spenser Hsu, “Judge approves settlement over U.S. Park Police’s handling of protests,” Washington Post, June 22, 2015 (“Ending a 13-year legal struggle, a federal judge gave final approval Monday to a settlement in which the federal government agreed to new terms of engagement with demonstrators in the nation’s capital and agreed to pay $2.2 million to almost 400 protesters and bystanders swept up by U.S. and local police during a September 2002 demonstration against the World Bank.”)

1. “Slants find allies in ACLU, Cato Institute, Pro-Football, Inc. and others in their pending trademark case,” Oregon Music News, June 23, 2015
2. Evan Grossman, “Lawsuit claims PA teachers union stomps First Amendment rights,” Watchdog.org, June 23, 2015
3. Editorial, “A new federal assault on First Amendment,” Las Vegas Review Journal, June 23, 2015
4. Gerri Willis, “IRS Policy May Have Violated First Amendment,” Fox Business, June 22, 2015
5. Parker Perry, “First Amendment fight breaks out in child porn case with Oklahoma pastor,” Bluefield Daily Telegraph, June 22, 2015
6. Bob Allen, “BJC speaker explains why many blacks cool to First Amendment,” Baptist News Global, June 22, 2015
7. John Farmer, “Leading-Edge Law: Redskins may benefit from First Amendment rights in IP realm,” Richmond Times Dispatch, June 21, 2015
8. Editorial, “Supreme Court errs on Texas’ Confederate-themed license plates,” Los Angele Times, June 19, 2015
9. Sarah Padbury, “Student wins battle with school over right to preach on campus,” World, June 19, 2015
10. “Supreme Court upholds Texas license plate restriction, strikes down local Arizona sign law,” Associated Press, June 18, 2015

Video Flashback 

→ Freedom to Petition and Freedom to Assemble (panel discussion with Judge Robert L. Carter, Geoffrey Stone & Ron Collins, November 28, 2005)

The Court’s 2014-2015 Free Expression Docket 

[last updated: 6-22-15]

Cases Decided 

1. Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
3. Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
4. Reed v. Town of Gilbert (argued 1-12-15 / decided 6-18-15) (9-0 per Thomas)

Pending Petitions*

1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
2. Thayer v. City of Worcester (last distributed for Conference of January 9, 2015)
3. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
4. Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
5. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)

Review Denied*

1. Walker-McGill v. Stuart
2. O’Keefe v. Chisholm
3. King v. Christie
4. Apel v. United States 
5. Dariano v. Morgan Hill Unified School District
6. The Bronx Household of Faith v. Board of Education of the City of New York 
7. Arneson v. 281 Care Committee
8. Kagan v. City of New Orleans
9. ProtectMarriage.com-Yes on 8 v. Bowen
10. Clayton v. Niska
11. Pregnancy Care Center of New York v. City of New York 
12. City of Indianapolis, Indiana v. Annex Books, Inc.
13. Ashley Furniture Industries, Inc. v. United States 
14. Mehanna v. United States
15. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
16. Vermont Right to Life Committee, et al v. Sorrell

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.