First Amendment News

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First Amendment News 254: Ian Millhiser on Justice Thomas’s maverick views on modern free speech jurisprudence

May 13, 2020

Justice Clarence Thomas, like Justice William O. Douglas, prides himself on being a constitutional maverick. Perhaps that explains why during his 14 years on the Roberts Court he has only authored four majority opinions in free expression First Amendment cases:

    1. Washington St. Grange v. Wash. St. Republican Party (2008) [vote: 7-2]
    2. Reichle v. Howards (2012) [vote: 8-0]
    3. Reed v. Town of Gilbert (2015) [vote: 8-1]
    4. National Institute of Family Life Advocates v. Becerra (2018) [vote: 5-4]

In that regard, sometimes he has given the First Amendment a broad reading as evidenced by his opinions in Reed v. Town of Gilbert (2015) (the sign case and content-based scrutiny): A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” Then there is his opinion in the much-debated campaign finance case, Citizens United v. Federal Election Commission (2010, concurring in part and dissenting in part). In his lone opinion, Thomas wrote that “Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information'”.

Moreover, as Professor David L. Hudson has observed: “In a concurring opinion in 44 Liquormart, Inc. v. Rhode Island (1996), Thomas wrote that the Court should abandon its ruling in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), which subjects restrictions on commercial speech only to intermediate scrutiny. Thomas believed that bans on truthful commercial speech should be subject to the rigors of strict scrutiny.”

At other times, when he writes in a separate opinion, his views very much constrict the domain of free speech freedom. For example, in McKee v. Cosby, Jr. (2019, concurring opinion RE: denial of cert.) he wrote: 

  • New York Times [v. Sullivan] and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”
  • “We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.”
  • “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”

  See Adam Liptak, Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling, New York Times (Feb 19, 2019)

  See also Levine and Wermiel: “Dubious Doubts and ‘the Central Meaning of the First Amendment’—A Preliminary Reply to Justice Thomas,” First Amendment Watch (March 1, 2019)

And then there was his concurrence in Morse v. Frederick (2007), wherein he wrote: “In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.”

Ian MillhiserIan Millhiser (credit: Vox.com)

As Floyd Abrams has duly noted, there is also the dicta that Justice Thomas slipped into his concurring opinion in Ramos v Louisiana (2020) (a sixth Amendment case), wherein he quoted from an earlier ruling referring to William Blackstone as “the preeminent authority on English law for the founding generation.” Maybe, but more likely maybe not, as evidenced by a contrary conclusion reached in Wendell Bird’s impressively documented book “The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox’s Libel Act” (2020).

There is more, much more, which brings us to Ian Millhiser, a senior correspondent for Vox, and author of a recent article titled “Clarence Thomas wants to shrink your free speech rights — unless you are a rich donor.” Here are a few excerpts about Justice Thomas’s free speech jurisprudence:

Overbreadth 

Last Thursday, Justice Clarence Thomas suggested that a major First Amendment doctrine should be abandoned, and that the right to free speech be significantly shrunk in the process. It’s the second time he’s done so in a little over a year, and at least the third time Thomas has called for a major slice of Americans’ free speech rights to be cut away.

His latest call to reduce free speech rights came in United States v. Sineneng-Smith, a case involving an immigration lawyer who fraudulently charged her clients a total of $3.3 million to file for a change in their immigration status that she knew they were ineligible to receive. The Court ruled unanimously, and on narrow procedural grounds, to toss out a ruling benefiting this immigration lawyer.

Though Thomas joined Justice Ruth Bader Ginsburg’s unanimous opinion, he also wrote a separate opinion joined by no other justice. In it, he calls for the Court to reconsider its “overbreadth” doctrine, a First Amendment doctrine that allows courts to cast an especially skeptical eye on laws that restrict free speech. In doing so, Thomas admitted that he is now calling for the Court to reconsider a doctrine that he’s supported in the past. . . .

[Thomas] claims it is “untethered from the text and history of the First Amendment,” and that, rather than being rooted in the way the First Amendment was originally understood, the overbreath doctrine “first emerged in the mid-20th century. . . .

In fairness, Thomas does concede in his Sineneng-Smith opinion that he has “previously joined the Court in applying” the overbreadth doctrine. So his current opposition to First Amendment facial challenges appears to be a recent development. Perhaps, when Thomas hears another campaign finance case, he will rebuke his own analysis in Citizens United and admit that it is inconsistent with the views he expressed in Sineneng-Smith.”

Citizens United 

The bulk of Thomas’s partial dissent in Citizens United tells horror stories about conservative donors whose donations became public, and who then suffered social or financial consequences. Thomas alleges that a handful of donors to a campaign opposing marriage equality received threats, and he claims that the director of a musical theater company who donated to this campaign “was forced to resign after artists complained to his employer.” Thomas also claims that a restaurant manager who donated to this anti-LGBTQ campaign was “forced to resign” after protesters targeted the restaurant.”

Originalism 

“Thomas claims to root his opinions in the original understanding of the First Amendment, but it’s far from clear that the framing generation had a coherent understanding of that amendment. And in the one area where Thomas takes an unusually expansive approach to the First Amendment — campaign finance — there is considerable evidence that early Americans rejected Thomas’s understanding of corporate rights.”

Related

Coming this summer from FIRE: Collins & Hudson, “The Roberts Court — Its First Amendment Free Expression Jurisprudence: 2006-2020” — the first comprehensive examination of the Court’s record on free speech — the cases, data, issues, categories of cases, voting records and alignments, the lawyers who argued the cases . . . and more!

Question: If Donald Trump loses the 2020 election, might Justice Thomas step down to allow the president to fill another vacancy with a younger and vetted nominee?

Robo-call case argued in high court

Over at SCOTUSblog: “Educational seminar: Debrief of Barr v. American Association of Political Consultants

[Recently,] we held a webinar to debrief Wednesday’s oral argument in Barr v. American Association of Political Consultants.

Genevieve Lakier of the University of Chicago Law School and Amanda Shanor of the University of Pennsylvania Wharton School talked about how the argument went, possible outcomes and impacts on First Amendment jurisprudence.

Cert. petition tests the scope of Reed v. Town of Gilbert in sign case

The case is Bright v. ThomasThe issue raised in the case according to SCOTUSblog is: “Whether a sign regulation containing an exception for on-premises signs, for which both commercial and noncommercial speech may qualify, violates the First Amendment under the Supreme Court’s 2015 decision in Reed v. Town of Gilbert.”

This Court’s decision in Reed v. Town of Gilbert (2015), injected new confusion into an already unsettled area of First Amendment jurisprudence. Reed involved a First Amendment challenge to a municipal sign code containing exemptions for “Ideological Sign[s],” “Political Sign[s],” and “Temporary Directional Signs Relating to a Qualifying Event.” Id. at 2224-25 (alterations in original; internal quotation marks omitted). This Court invalidated the sign code because it was content based on its face and failed strict scrutiny. But in a concurring opinion that was joined by two of the other Justices in the majority, Justice Alito explained that governments were not “powerless to enact and enforce reasonable sign regulations” and listed as an example of a regulation “that would not be content based” a “[r]ule[] distinguishing between on- premises and off-premises signs.” (Alito, J., concurring).

True threats cert. petition filed 

In Kansas v. Boettger the issue according to SCOTUSblog is: “Whether the First Amendment prohibits a state from criminalizing threats to commit violence communicated in reckless disregard of the risk of placing another in fear.”

In an amicus brief filed by the Solicitor General of Virginia on behalf of 16 states and the District of Columbia, the following argument is made:

The impact of a constitutionally based, specific in- tent-to-threaten requirement would extend far beyond school threats and domestic violence. Under the Supreme Court of Kansas’s reasoning, the First Amendment would invalidate whole swaths of the criminal codes of the various States. These include the laws of 16 States with a criminal provision that—like the Kansas statute at issue here—tracks the Model Penal Code and criminalizes threats made in reckless disregard of their potential to instill fear.

Hudson on COVID-19 emergency measures and the First Amendment  

Prof. David HudsonProf. David Hudson

Professor David L. Hudson, Jr. recently wrote an article for FIRE on the coronavirus and how health-related litigation is fairing in the courts where First Amendment issues are raised.

The pandemic caused by the pervasive spread of the virus known as COVID-19 has placed significant pressure on government officials to act quickly to try to save lives and slow the spread of the virus. Many officials have responded with significant restrictions in the form of emergency stay-at-home orders, executive orders closing all but “essential” businesses, and bans on public gatherings — often of groups of more than 10 people.

Such measures have received pushback from church parishioners who want to worship together, business owners that want to re-open to avoid economic collapse, and people who want to be able to assemble either for communal protesting, or other purposes. Chatter on Facebook and other forms of social media has degenerated into a veritable hodgepodge of the political blame-game, inspired debates over federalism and the proper allocation of power between federal and state governments, and presented people with a dizzying array of quite different medical information and numbers.

Clear and Present Danger podcast cover image featuring Dunja Mijatović

Related

Since the coronavirus became a pandemic, governments around the world have adopted a wide range of measures affecting basic human rights. This includes many of the 47 member states of the Council of Europe all of whom are legally bound by the European Convention on Human Rights. Most states have limited the freedoms of assembly and movement, some have also limited privacy and data protection ­and then there are some who have restricted freedom of expression through laws or policies banning false information.

To discuss the implications for freedom of expression is none other than the Council of Europe Commissioner for Human Rights, Dunja Mijatović, who previously served as the OSCE Representative on Freedom of the Media.

In a statement on April 3rd, Dunja Mijatović wrote: “The global health problems caused by COVID-19 require effective measures to protect people’s health and lives. This includes combating disinformation that may cause panic and social unrest. Regrettably some governments are using this imperative as a pretext to introduce disproportionate restrictions to press freedom; this is a counterproductive approach that must stop. Particularly in times of crisis, we need to protect our precious liberties and rights.”

In this conversation we discuss:

  • The measures countries like Hungary, Romania, Russia and Azerbaijan, that typically target false information, have taken during the crisis.
  • How bad the situation has become for free expression in Europe because of corona-related restrictions.
  • Which types of restrictions that are particularly worrying and which countries that are of specific concern.
  • If combating misinformation is vital during this crisis, why is it a problem if states adopt exceptional measures? Article 10 paragraph 2 of the European Convention on Human Rights allows governments to interfere with free expression for the purpose of “public safety” and the “protection of health.”
  • According to case law of the European Court of Human Rights, the member states have a certain margin of appreciation when it comes to finding the right balance between convention rights (free speech) and competing interests (such as health and public safety). On the one hand the threat from Covid-19 give states a wide margin on appreciation, but on the other hand one could argue that access to information and scrutiny and debate of emergency measures is just as important.
  • What types of measures that would be consistent with freedom of expression. Would it be legitimate to ban or remove statements that contradicted health advice by WHO or the national health authorities?
  • Should journalists and media have more freedom than ordinary citizens expressing themselves on social media, blogs and so on.

“‘This is NUTS’: Ted Cruz slams city council resolution deeming ‘Chinese virus’ a hate speech term” — and Nadine Strossen’s thoughts

Ted Cruz during subcommittee meeting Senator Ted Cruz (Subcommittee on the Constitution)

That was the headline in a recent article in the Washington Examiner. In that article Andrew Mark Miller wrote:

Texas Sen. Ted Cruz lambasted the San Antonio City Council following news that they were set to vote on a resolution labeling terms for the coronavirus’s Chinese origin as “hate speech.”

“Resolution being voted on by San Antonio City Council this morning labels terms ‘Chinese Virus’ and ‘Kung Fu Virus’ as hate speech and ‘all persons are encouraged to report any such antisemitic, discriminatory or racist incidents to the proper authorities for investigation,’” San Antonio, Texas, investigative reporter Jaie Avila wrote on Twitter Thursday.

Cruz, responding to a tweet from syndicated talk show host Joe “Pags” Pagliarulo, called the move “nuts” and used the Twitter hashtag “#nospeechpolice.”

The measure was passed unanimously by the San Antonio City Council moments after Cruz’s tweet. . . .

President Trump and others were widely criticized by the press for referring to the coronavirus as the “Chinese virus” despite the fact scientists have concluded the virus originated there.

“It’s not racist at all. No, not at all. It comes from China, that’s why. It comes from China. I want to be accurate,” Trump told reporters in mid-March.

Prof. Nadine Strossen replies:

Prof. Nadine StrossenNadine Strossen

I just read the actual resolution, and Cruz is actually wrong in describing the resolution. At best, he’s paraphrasing it in the most polemical fashion; at worst, he’s deliberately distorting it.  The resolution itself doesn’t even refer to the phrase “Chinese Virus” or equivalents, and even the “Whereas Clause” that does contain such reference is much less censorious than Cruz indicates:

WHEREAS, COVID-19 is a public health issue, not a racial, religious or ethnic one, and the deliberate use of terms such as “Chinese virus” or “Kung Fu virus” to describe COVID-19 only encourages hate crimes and incidents against Asians and further spreads misinformation at a time when communities should be working together to get through this crisis . .”

Of course, speaking of “spread[ing] misinformation,” I defend Cruz’s equal right to do so, along with anyone who uses the contested terminology.

‘First Things First’ e-book now free 

First Things First sets the standard for teaching free speech law.” — Stephen D. Solomon

“With admirable clarity and brevity, First Things First covers the field of First Amendment law and theory in a readable and accessible way….This innovative book explains not just the fundamentals of First Amendment law, but how we got to where we are, and why.” —Robert Corn-Revere 

Thanks to the support of the Foundation for Individual Rights in Education (FIRE), “First Things First: A Modern Coursebook on Free Speech Fundamentals” by Ronald Collins, Will Creeley, and David L. Hudson, Jr. (with Jackie Farmer as managing editor) is being offered for free . . . this to help out students and others in these financially difficult times.

Forthcoming book on the state of press freedoms 

Project Censored's State of the Free Press 2021 cover

Our nation’s oldest news-monitoring group, Project Censored, refreshes its longstanding yearbook series, Censored, with State of the Free Press 2021. This edition offers a more succinct and comprehensive survey of the most important but underreported news stories of 2020; in addition to a comparative analysis of the current state of corporate and independent news media, and its effect on democracy.

The establishment media sustains a decrepit post-truth era, as examined the lowlight features: “Junk Food News”-frivolous stories that distract the public from actual news-and-“News Abuse”-important stories covered in ways that undermine public understanding. The alternative media provokes a burgeoning critical media literacy age, as evaluated in the highlight feature: “Media Democracy in Action”-relevant stories responsibly reported on by independent organizations. Finally, in an homage to the history of the annual report, the editors reinstate the “Déjà vu News” feature-revisited stories from previous editions. State of the Free Press 2021 endows readers with the critical thinking and media literacy skills required to hold the corporate media to account for distorting or censoring news coverage, and thus, to revitalize our democracy.

New scholarly article: Volokh on anti-libel injunctions

Prof. Eugene VolokhProf. Eugene Volokh

I will argue that:

1. Properly crafted criminal libel laws and catchall injunctions are constitutional, though probably too broad to be a good idea.

2. Specific injunctions, permanent or preliminary, are unconstitutional (whether under the First Amendment or under state constitutions).

3. Hybrid injunctions, permanent or preliminary, are constitutional and may indeed be well-advised.

Properly crafted anti-libel injunctions are thus permissible under the First Amendment, if a state chooses to implement them, as some state courts and state legislatures have done. (I set aside here injunctions that forbid more than just the libelous statements; those are generally unconstitutionally overbroad, and I discuss them in a separate article.15) Such properly crafted anti-libel injunctions should also be seen as constitutional under state constitutions, even those that contain language that has sometimes been seen as categorically foreclosing injunctions.
But deciding whether to allow such injunctions also requires a difficult judgment about state remedies law, again precisely because each injunction effectively creates a mini criminal libel law.

New scholarly article on true threats doctrine 

So to Speak podcast on Title IX rules

FIRE releases timeline on campus censorship concerning the medical and scientific fields

This timeline chronicles FIRE’s coverage of campus censorship concerning the medical and scientific fields. With the current COVID-19 crisis forcing changes across campuses, FIRE will continue to be vigilant in our fight against censorship on campus. The dates on this timeline represent when FIRE published coverage of each story. Click through to the full post for more information on the events.

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This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.