Clarence Thomas and the First Amendment

The First Amendment Center's David Hudson profiles the free speech jurisprudence of Supreme Court Justice Clarence Thomas:

The Court's ultimate originalist believes strongly in applying the original views of the Founding Fathers in interpreting the Constitution. In First Amendment law, Thomas has taken bold stances that distance him from his colleagues. Usually, in separate concurring opinions, he explains why he would overrule a leading First Amendment decision or why the Court has gone astray.

Sometimes, Thomas' positions cause him to advocate for greater protection for certain types of speech, such as commercial speech and campaign finance as speech. Other times, Thomas' views would dramatically curtail First Amendment freedoms – student speech, prisoner speech and the establishment clause. Suffice it to say, Thomas has gone his own way in many areas of First Amendment law.

Read the full article here.

(Via How Appealing.)

Comments

[jcalton]

You can also check out this story while you're there:

[Koch] Company's attempt to stifle satire fails

[SugarFree]

Nice link, dipshit.

[R C Dean]

Having SF call you out for a bad link has got to hurt.

[Libertymike]

"the ultimate originalist"? What a fornicating joke.

Take Morse v. Fredericks, the bong hits 4 Jesus case. An originalist would hold that a public school principal could not, consistent with the 1st amendment, prohibt a student from wearing a t-shirt or displaying a sign which reads,"Bong Hits 4 Jesus" at a school social event.

The ultimate originalist would look at the text of the first amendment and discover that there are no exceptions for public school officials. Thus, the ultimate originalist would understand that if the framers had desired to create an exception for public school officials, they would have so stated. They did not.

Sure, there were no public schools at the time of the founding (wish that were the case now). Thus, Justice Thomas' opining (there is precious little evidence which Thomas cites) that private schools in the colonial era conducted business with an iron hand is completely useless for the purpose of supporting the proposition that the 1st amendment is compatible with public school officials banning speech.

Thomas writes, "the first amendment was not originally understood to permit all sorts of speech". He then cites Chaplinsky v. New hampshire, a 1943 case along with Cox v. Louisianna, a 1965 case. Can you spell intellectual claptrap?

He is, at bottom, a hack fraud.

[rac]

You're really pissing into the wind today LM. Come on, cna you really say with a atraight face that Madison would have ruled in favor of student's free speech? Thomas' point is that "originalism" means determining what the original drafters would have done "in their time". I think he's wrong, but it is not fraud.

[Jim]

If he's worried about what the founds would have done in their time instead of what the words that they wrote down mean, then I think he should excuse himself from his career, because I'm pretty sure they weren't down with darkie judges.

[Libertymike]

rac, I use the word fraud because he invokes originalism selectively, not with intellectual consistency and coherency.

Jim's post is hereby incorporated by reference.

[Libertymike]

Yes, there is a diffference between originalism and textualism. However, some have argued that in order to be an originalist, one must start with the text.

If the text does not grant the state the power to do a certain thing, then the originalist's job is done unless he or she wants to be an intellectual hypocrite.

Rac, are you so sure that Madison, consistent with his proclamation that the judiciary would serve as a great bulwark against each and every intrusion upon liberty, would have sided with Thomas?

[H man]

OT forth admendment issue. TSA frisks baby.

http://www.techdirt.com/articl.....l#comments

[SugarFree]

Also not free speech:

"Please stop rummaging through my underwear looking for contraband Advil."
-13-Year-Old Girl

[John Thacker]

Disappointed that they didn't mention his concurrence in Fox v. FCC, where he wrote separately to note that he thought that the entire FCC regulation of content violates the First Amendment, especially these days when the scarcity argument carries no water.

[MJ]

"Other times, Thomas' views would dramatically curtail First Amendment freedoms ? student speech, prisoner speech and the establishment clause."

Thomas seems to think that government has greater leeway in restricting the speech of people it has charge over in ceratin circumstances. Also, I presume Thomas thanks that the establishment clause has to do with actually establishing a religion, not prohibiting public expressions of religion that certain types of people get the vapors over.