Thomas Not Afraid to Question First Amendment Precedent

Supreme Court Justice Clarence Thomas is unafraid to boldly state his views on First Amendment jurisprudence. Many times he has proclaimed his willingness to abandon, overrule or question long-established precedent in a concurring opinion.

In past concurring opinions, he has:

Some of these concurring opinions by Thomas call for an expansion of First Amendment freedoms, while others call for a contraction of those freedoms.

Yesterday, Thomas once again questioned long-standing First Amendment case law in his concurring opinion in FCC v. Fox Television Stations. In Red Lion Broadcasting v. FCC (1969) and FCC v. Pacifica (1978), the Court determined that First Amendment protections for broadcast television and radio were less than for other media, such as print. Thomas wrote in yesterday’s concurrence of the “questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.”

In another passage, he writes that the “logical weakness of Red Lion and Pacifica has been apparent for some time” and that “Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks any textual basis in the Constitution.” He concluded that “I am open to reconsideration of Red Lion and Pacifica in the proper case.”

While his colleagues decided Fox on administrative procedural grounds — whether the FCC’s change in policy regarding fleeting expletives was arbitrary and capricious — Thomas addressed the underlying First Amendment issue and the Red Lion and Pacific rulings.

Thomas’ latest opinion in Fox is only the latest in a series of bold concurrences in free-expression law. In his concurring opinion in 44 Liquormart v. Rhode Island (1996) — a case involving the suppression of truthful advertising of liquor prices — Thomas established himself as a strong protector of truthful commercial speech, writing: “I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.” In First Amendment case law, restrictions on commercial speech are subject to intermediate scrutiny under the Court’s test developed in the Central Hudson case, while content-based restrictions on noncommercial speech are subjected to strict scrutiny, a much higher form of judicial review. Thomas has said he believes that this commercial/noncommercial distinction does not make much sense.

In his concurrence in Morse v. Frederick (2008), Thomas called for the overturning of the 1969 Tinker precedent, writing that the Court’s standard for evaluating restrictions on student speech is “without basis in the Constitution.” In Tinker, the Supreme Court recognized that students possess First Amendment rights at the “schoolhouse gate” and developed a standard — known as the substantial-disruption test — to evaluate restrictions on student speech. Thomas’ colleagues in the Morse case debated whether to create an exception to Tinker when the student expression involves speech that allegedly promotes illegal drug use. Thomas went much further than his colleagues in the majority in his concurring opinion when he called for the abandonment of the longstanding Tinker precedent, arguing that students have no First Amendment rights in school.

In his concurrence in Randall v. Sorrell (2006), Thomas not only expressed his skeptical view of a Vermont law that imposed a severe limit on political contributions, but also continued his assault on the precedent in Buckley v. Valeo, writing: “I adhere to my view that this Court erred in Buckley when it distinguished between contribution and expenditure limits, finding the former to be a less severe infringement on First Amendment rights.” To Thomas, both political contributions and political spending are classic forms of political speech that should receive full First Amendment protection. Many of his colleagues continue to adhere to the position articulated in Buckley that contributions can be regulated more heavily than expenditures.

Thomas has distinguished himself from his colleagues perhaps even more forcefully in the arena of establishment-clause jurisprudence. Since 1947, the Supreme Court has determined that the establishment clause — the part of the First Amendment that provides for some separation of church and state — applies not only to the federal government but also to state and local governments. This position has been accepted by nearly all Supreme Court justices through the years. However, Thomas has questioned whether the Founding Fathers really intended to apply the establishment clause to the states.

In his separate opinion in the school-voucher decision Zelman v. Simmons Harris (2002) and the Pledge of Allegiance case Elk Grove Unified School District v. Newdow (2004), Thomas has said the establishment clause should not be extended to the states and should limit only the federal government from establishing religion.

Thomas’ latest concurrence in FCC v. Fox is another stark reminder that the justice continues to follow his own path on the Supreme Court with regards to First Amendment jurisprudence.

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