Clarence Thomas wants to shrink your free speech rights — unless you are a rich donor

Last Thursday, Justice Clarence Thomas proposed that an important doctrine of the First Amendment should be abolished and that the the right to freedom of expression is considerably reduced in the process. It’s the second time he’s done this in just over a year, and at least the third time Thomas has called for the elimination of much of Americans’ freedom of expression.

His last call to reduce freedom of expression came in United States against Sineneng-Smith, a case involving an immigration attorney who fraudulently charged her clients $ 3.3 million in total to request a change in their immigration status that she knew was ineligible. The Court decided unanimously and on narrow procedural grounds to rule that this immigration attorney benefited.

Although Thomas joined Justice Ruth Bader Ginsburg’s unanimous opinion, he also wrote a separate opinion without any other justice. In it, he calls on the Court to reconsider his “overbreadth” doctrine, a First Amendment doctrine that allows courts to cast a particularly skeptical eye on laws that restrict freedom of expression. In doing so, Thomas admitted that he is now calling on the Court to review a doctrine that he has supported in the past.

In general, courts are reluctant to accept “face challenges” against an allegedly unconstitutional law – challenges that seek to invalidate the law in all its applications – rather than simply stating that the court will not apply that specific law to a particular claimant . The widespread doctrine makes it easier to bring a facial challenge under the first amendment and thus provides increased protection against laws that tax freedom of expression. Thomas’s opinion would allow many laws that tax freedom of speech to remain on the books even after a court ruled that they would reduce a significant amount of free speech.

It is not the first time that Thomas has formulated a limited view of the first amendment. In 2019, he attacked the decision of his court New York Times v. Sullivan (1964), one of the fundamental decisions of the Supreme Court, which protects journalists from malicious libel cases that might repress a free press.

Likewise in Brown v. Entertainment Merchants Association (2011), Thomas suggested that children and teenagers have no right to first modification. “The founding generation’s practices and beliefs affirm that” freedom of expression, “he wrote in his Brown disagreement: “does not include the right to speak to minors (or a minor’s right to access speech) without the intervention of the minor’s parents or guardian.” No other justice followed Thomas’s view Brown.

These are serious attacks on the right to free speech. Thomas Brown only his opinion, if it were embraced by a majority of his court remove the freedom of expression of nearly 74 million people.

It is therefore striking that in yet another case there was a very comprehensive view of the first amendment. In Citizens United v Federal Election Commission (2010), the Supreme Court ruled that the right to free speech includes the right of companies to spend unlimited money influencing elections. In a partially dissenting opinion, Thomas complained Citizens United “does not go far enough. ‘

In other words, Judge Thomas imagines a much weaker first amendment for children, journalists and indeed many of the country. But when wealthy donors seek relief from the limitations of campaign funding, Thomas takes a maximal view of their First Amendment rights.

The broader doctrine, briefly explained

Thomas’ opinion Sineneng-Smith is a fairly technical doctrine, but it is worth taking a moment to understand that doctrine, and Thomas’s criticism, because that criticism is at odds with Thomas’s position Citizens United.

Generally, federal courts hear two types of constitutional challenges, namely that a federal or state law violates the constitution. “Facial challenges” seek to invalidate a specific legal provision in its entirety. If a claimant has the upper hand in such a dispute, the legal provision that he challenges ceases to exist.

Conversely, when a judge declares that a law is invalid “as applied” to a particular claimant, it means that the law cannot be applied in the specific circumstances that have arisen in that particular case. But there may be other circumstances in which the law may be constitutionally applied to other individuals.

Courts are usually reluctant to declare a law invalid on its face. As the Supreme Court explained in United States v. Salerno (1987), “A face to face with a legislative act is … the most difficult challenge to successfully set up, since the challenger must determine that there are no circumstances under which the law would be valid.”

Think of it this way. For example, say a state passes a law that states that the bail for all those accused of theft is at least $ 100,000. Now suppose two different suspects in criminal matters challenge this law under the Eighth Amendment, which prohibits “excessive bail. ‘

The first defendant is a teenager accused of stealing a packet of gum from a convenience store. The second is a notorious art thief, with multiple aliases and connections around the world, who is tasked with stealing tens of millions of dollars in famous paintings. Under these circumstances, a $ 100,000 bail would clearly be excessive for the first defendant. But at least it is probably too low for the second defendant.

Since there are at least some circumstances in which a $ 100,000 bail would be appropriate for a criminal suspect charged with theft, no one could submit a face threat to state law setting this minimum amount for bail. But the suspect who loves the store can take up an as-applied challenge with the claim that, as applied to their fairly insignificant offense, a $ 100,000 bail is excessive.

And that brings us to the broader doctrine. That doctrine provides for that SalernoThe high bar for vision problems does not apply to first change lawsuits. On the contrary, as the Supreme Court in United States v. Stevens (2010), a law that taxes freedom of expression, can sometimes be invalidated in the face if “a significant portion of the applications are unconstitutional.”

The reason for this exaggerated doctrine is that the Court is of the opinion that freedom of expression is particularly vulnerable. If courts allow statutes that prohibit certain forms of expression, the mere existence of those laws could deter individuals from exercising their right of first amendment. As the Court of Auditors in Broadrick v. Oklahoma (1973), “The potential harm to society by allowing some unprotected speech to go unpunished is offset by the possibility of muffling the protected speech of others and obscuring the perceived grievances due to the potential inhibitory effects of statutes too broad. “

Nevertheless, in his book Thomas raises a number of objections to this widespread doctrine Sineneng-Smith opinion. He claims that it is “separate from the text and history of the First Amendment” and that, instead of being rooted in the way the First Amendment was originally understood, the breathless doctrine “first surfaced in the mid-20th century. “

One of Thomas’ main objections to the teaching is that he believes the Salerno standard should apply universally – Thomas even criticizes the idea that anyone could file a face challenge against any law. “Our” modern practice of snare[ing] legislation from below, as it is apparently unconstitutional, not very similar to the practices of 18th and 19th century courts, ”said Thomas.

Fair enough. Read separately the new position that Thomas announced Sineneng-Smith could be seen as a call for judicial restriction – an assertion that courts should be more cautious before completely overriding a legislative act.

But in Citizens United, Thomas sang a completely different tune.

Thomas’ hypervigilant approach to campaign finance laws

The thrust of Thomas’ opinion Citizens United, the landmark Supreme Court decision that has allayed much of the criticism America’s campaign finance laws, is that the challenges applied are insufficient to protect donors whose political expenditures are made public, and that the Supreme Court should have optionally invalidated a federal campaign finance disclosure law.

Most of it Thomas’ partial disagreement in Citizens United tells horror stories about conservative donors whose donations were made public and subsequently experienced social or financial consequences. Thomas claims that a handful of donors to a campaign against marriage equality have been threatened, and he claims that the director of a music 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 attacked the restaurant.

A majority of the Court concluded that these incidents were not sufficient reason to remove the disclosure laws – although the Citizens United the majority added that “Axis Applied Challenges would be available if a group demonstrated a” reasonable probability “that disclosure of its contributors’ names would” expose them to threats, harassment or retaliation from government officials or private parties. ”

However, Thomas rejected this conclusion. “The Court’s promise that the challenges being applied will adequately protect speech,” he wrote, adding that “the advent of the Internet will allow for rapid publication of expenditure,”[s]”Political opponents” with the necessary information “to intimidate and retaliate against their enemies. ”

According to Thomas, the disclosure laws should be repealed on their face, to avoid harassing campaign donors.

Whatever the merits of this position – that was rejected by all eight colleagues in Thomas Citizens United – it is difficult to reconcile Thomas’s position in the disclosure laws Citizens United with the broad concerns about “our” modern practice of snare[ing] down ‘legislation as apparently unconstitutional’ that he announced in Sineneng-Smith.

In all honesty, Thomas admits in his Sineneng-Smith believes that he “previously joined the Court of Justice” in applying “the excessive doctrine”. So his current opposition to first amendment facial challenges seems to be a recent development. Perhaps, when Thomas hears another campaign finance case, he will do his own analysis Citizens United and admit that it is not in line with the views he expressed Sineneng-Smith.

But it is at least sufficient to point out that Thomas took a maximalist approach to the first amendment Citizens United, and then took such a radically different approach in a more recent opinion.

History is a bad guide for judges interpreting the First Amendment

A common thread through Thomas’ first amendment decisions – indeed, a common thread that walks through Thomas’s decisions on many topics – considers that the Court has departed from the way the Constitution has been understood by the generation that drafted it. His main complaint Sineneng-Smith is that the widespread doctrine is “separate from the text and history of the first amendment”. Likewise in McKee against Cosby (2019), Thomas argues that a reverent Supreme Court decision protecting journalists from malicious libel cases was wrong because it “ did not apply the first amendment as understood by the people who sanctioned it. ”

An overarching problem with Thomas’ project of trying to interpret that first amendment as originally conceived by the frame generation is that it is far from clear that such a thing is possible. And if possible, there is considerable evidence that the authors of the amendment’s understanding was so limited that modern Americans would find it unacceptable.

Below the Customary English law, which has informed much of the founding generation’s understanding of early American law, freedom of expression and the press, was largely understood as a right to prevent the government from preventing a person from publishing a particular statement . But once that statement was made public, the person making the statement could still have legal implications for their speech.

Early Supreme Court rulings that interpreted the First Amendment accepted this limited view of free speech. Like the Supreme Court in Patterson against Colorado (1907), the “primary purpose” of the guarantee of free speech and a free press of the First Amendment “is to” prevent all such previous restrictions on publications as practiced by other governments “, and do not prevent subsequent punishment of as can be considered to be contrary to public welfare. “

Of course, modern Supreme Court rulings reject this narrow view of the First Amendment, but they did not because modern judges developed a better understanding of how framers understood freedom of expression. Many scholars of the First Amendment have concluded that it is impossible to find out the original meaning of the amendment. As Judge Robert Bork, the failed Supreme Court candidate and godfather of the conservative, original movement, wrote in 1971, “The framers seem to have had no coherent theory of free speech and don’t seem to worry too much about the subject. ‘

But while there is little clarity about the original understanding of the first amendment, the framing generation seems to have had very robust ideas about corporate legal rights. And these ideas are hard to reconcile with the comprehensive vision of corporate rights embraced by the Supreme Court, with the enthusiastic support of Thomas Citizens United.

In a Law revised article 2016, former Delaware chief justice, Leo Strine, and his former lawyer, Nicholas Walter, explain that “in the early United States, there were no companies operating under the so-called general corporate statutes.” Companies were previously set up by the government and were given ‘detailed charters that require their managers to follow faithfully’.

As the Supreme Court noted Dartmouth College against Woodward (1819): “A company is an artificial being, invisible, intangible and exists only in contemplation of the law. Because it is a mere creature of the law, it possesses only those qualities which the charter of its creation expressly or incidentally lends to its existence. ‘

Therefore, Strine and Walter conclude, Citizens United is not consistent with the original understanding of the first amendment, not because it reads the amendment itself too extensively, but because the framers would not have understood the modern Supreme Court’s conclusion that a company owns constitutional rights.

Thomas claims to base his opinion on the original understanding of the first amendment, but it is far from clear that the frame generation had a coherent understanding of that amendment. And in the only area where Thomas takes an unusually comprehensive approach to the First Amendment – campaign finance – there is significant evidence that early Americans rejected Thomas’s understanding of corporate rights.