Justice Thomas Often Goes It Alone in First Amendment Jurisprudence

For years Justice Clarence Thomas has embraced a constitutional philosophy that often leaves him all alone in First Amendment cases. This latest term proved no exception.

Thomas describes himself as an originalist, following a constitutional philosophy that places primary emphasis on the original intent of the Founders. Thomas also does not believe as strongly in stare decisis — Latin for “let the decision stand” — as his colleagues, meaning he’s not afraid to overrule past Court decisions with which he disagrees. This philosophy often puts him at odds with other justices.

A prime example was Citizens United v. Federal Election Commission, the widely reported campaign-finance case. The Court disagreed mightily over limits on corporate campaign spending, but eight members did agree that disclosure and disclaimer requirements on corporate spending passed constitutional muster.

Not so for Clarence Thomas, who wrote that the “Court’s constitutional analysis does not go far enough.” Thomas said the disclosure requirements also infringed on political free-speech rights.

The justice again showed his willingness to go it alone in Doe v. Reed, a case about whether applying Washington state’s public-record laws to reveal the identities of the signers of a referendum petition could infringe on the signers’ First Amendment rights. Eight justices concurred with the finding that releasing signers’ identities under public-records law does not violate the First Amendment — either in general or with respect to the particular facts in the Washington case.

Thomas filed a lone dissent, writing that “Washington’s decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process.”

Even when not filing solitary dissents, Thomas provides a different constitutional analysis from that of his colleagues.

Consider the Court’s decision earlier this year in Milavetz, Gallop & Milavetz v. United States, which addressed First Amendment challenges to certain provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act.

The Court upheld two provisions of the 2005 federal bankruptcy law that require bankruptcy attorneys to include certain language in their ads. For example, the ads must state: “We are a debt-relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.”

The majority readily concluded that the disclosure requirements were rational ways of ensuring that consumers were not misled. But in his separate concurring opinion, Thomas questioned whether the majority opinion provided “sufficient First Amendment protection against government-mandated disclosures.”

This term Thomas once again advanced First Amendment views different from his colleagues — unafraid to set forth his own constitutional vision whether he stands alone or not.

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