Justice Thomas concludes that the "freedom of speech" is a Privilege or Immunity under the 14th Amendment

Justice Thomas again rejects substantive due process incorporation

|The Volokh Conspiracy |

Today the Supreme Court denied review in Kansas v. Boettger. This case considered whether "the First Amendment prohibits States from criminalizing threats to '[c]ommit violence . . . in reckless disregard of the risk of causing . . . fear.'" Justice Thomas dissented from the denial of certiorari. He concluded that "the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate." And he did not think this case was governed by Virginia v. Black (2003). (Thomas dissented in Black).

At the outset of his analysis, Thomas once again rejects substantive due process incorporation. instead, he says that the First Amendment–an enumerated right–is protected by the Privileges or Immunities Clause of the Fourteenth Amendment.

The Fourteenth Amendment provides that "[n]o Stateshall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." §1.As I have previously explained, "[t]he evidence overwhelmingly demonstrates that the privileges and immunities of such citizens included individual rights enumerated in the Constitution." McDonald v. Chicago, 561 U. S. 742, 823 (2010) (opinion concurring in part and concurring in judgment). One of those rights is "the freedom of speech" in the First Amendment. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 2765 (1866) (speech of Sen. Howard).The Fourteenth Amendment provides that "[n]o Stateshall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." §1.As I have previously explained, "[t]he evidence overwhelmingly demonstrates that the privileges and immunities of such citizens included individual rights enumerated in the Constitution." McDonald v. Chicago, 561 U. S. 742, 823 (2010) (opinion concurring in part and concurring in judgment). One of those rights is "the freedom of speech" in the First Amendment. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 2765 (1866) (speech of Sen. Howard).

This conclusion follows from McDonald. This is the first time (as best as I can recall) that Thomas has grounded the freedom of speech in the Privileges or Immunities Clause of the Fourteenth Amendment.

Thomas then expressly considers historical evidence leading up to Reconstruction.

The prevalence of statutes from the founding through Reconstruction that did not require intent to intimidate provides strong evidence of the meaning of the freedom of speech protected by the Fourteenth Amendment.

Thomas raised similar points in Elonis v. United States. But that case did not involve incorporation.

Advertisement

NEXT: Congratulations to Our Own Sam Bray,

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Yeah, that’s a nice one for originalists: Does the 14th amendment protection of the freedom of speech (regardless of the means of incorporation) protect the freedom of speech as it was understood in the reconstruction era (i.e. minus most of the famous 1st amendment cases) or the freedom of speech as it is understood today?

    Even if many 1st amendment cases up to the reconstruction era were wrongly decided, presumably they informed what the drafters and ratifiers were thinking they were doing when they drafted and ratified the 14th amendment…

    1. Actually, what does it do to said famous 1st Amendment cases, as most involved violation of a STATE law — e.g. _Cohen v. California, West Virginia State Board of Education v. Barnette, etc.

  2. There seems to be a duplication of text in the quote.

  3. Thomas is engaging in judicial onanism here.

    Nobody cares about the issue of whether the First Amendment is incorporated by the P/I clause, because it has already been incorporated under decades of precedent under the Due Process Clause. And that wasn’t because everyone who served on the Court before was an idiot and only the brilliant Justice Thomas found the answer that everyone else ignored. It’s because precedent and the iterative development of the law matters in a common law system.

    Thomas’ job is to apply THOSE precedents. If he wants to write a law review article on the P/I clause, be my guest. But the United States Reports doesn’t exist to publish his law review articles.

    1. It’s not at all true that nobody cares about the issue, because it really does have significance in some cases, because citizens have privileges and immunities, while people are entitled to due process. And there are plenty of people in the US who aren’t citizens.

      And, I don’t think anybody really thinks the Court was being stupid, as such, in incorporating via the due process clause, and blowing off the P&I clause. Rather, they were being cowardly, in a sense, avoiding overturning the Slaughterhouse cases, and taking advantage of the vagueness of that oxymoron, “substantive” due process, to treat the Bill of Rights like a Chinese menu, only incorporating the rights they approved of.

      1. It’s not at all true that nobody cares about the issue, because it really does have significance in some cases, because citizens have privileges and immunities, while people are entitled to due process.

        This is part of the onanism. You guys have an orgasm every time you fantasize about denying rights to non-citizens, but in reality, once you incorporate with P/I, equal protection would then require you grant the same rights to non-citizens.

        1. It’s just incomprehensible to you that somebody might advance a position on the Constitution because they think it’s objectively right, and they care about the rule of law, isn’t it?

          1. Don’t you accuse liberal justices and the Chief of that literally all the time?

            1. Sure, but they’re advancing positions that are, often, objectively wrong, using rationales that are just absurd.

              I understand that they have reasons for doing that. I don’t respect those reasons. They’re sworn to uphold the Constitution, not precedent, or their idea of good policy. If the Constitution dictates bad policy, it just does, and that’s the end of it: Recommend a constitutional amendment in dicta, if you must.

              The Constitution is over 200 years old, written for a largely agrarian federation of sovereign states. If you’re interpreting it to authorize a modern leviathan state, you’re not really interpreting it honestly.

              1. So let’s break this down. You think that it’s bad that Dilan is accusing Thomas of bad faith and not being objective. Then you turn around and say it’s okay for you to do the same thing to the justices you disagree with because you’re obviously objectively right and they’re obviously objectively wrong. Do you realize how ridiculous that makes you seem?

              2. I understand that they have reasons for doing that. I don’t respect those reasons. They’re sworn to uphold the Constitution, not precedent

                These are not separate things. The people who authored the Constitution understood they were creating a system based on precedent, and the Constitution actually even mentions the common law system in the Bill of Rights. Swearing to uphold the Constitution IS swearing to operate within our system of precedent.

                The Constitution is over 200 years old, written for a largely agrarian federation of sovereign states. If you’re interpreting it to authorize a modern leviathan state, you’re not really interpreting it honestly.

                That’s silly. You don’t think the framers expected that societies would change and face different challenges in the future?

                There’s a value in having a Constitution last and not have to be replaced all the time like the Articles of Confederation. To do that, you need a certain amount of flexibility.

                I am just amazed that so many right wingers think intentionally screwing up the legal system is a higher value than doing justice in individual cases.

                1. ” You don’t think the framers expected that societies would change and face different challenges in the future?”

                  God, I am so sick of hearing variations on that. Yes, they anticipated change. Thus Article V.

                  I’m so tired of people who pretend that there’s no Article V, or that it’s ‘broken’, just because the sorts of amendments they’d like wouldn’t be ratified.

                  Let’s have a constitutional convention to update the thing, and stop pretending that suborning judges is the only way the Constitution can change.

                  1. They also anticipated change by bringing over the British common law system.

                    Again, the Constitution literally enacts the system you keep ignorantly claiming to be unconstitutional.

          2. It’s just incomprehensible to you that somebody might advance a position on the Constitution because they think it’s objectively right

            i’m going to be very postmodern here, but there’s no such thing as “objectively right” in the legal system. Now, of course, that isn’t entirely true- it’s objectively right that you have to be 35 to become President, or that parking in a No Stopping zone is an infraction that will get you fined.

            But in terms of the the sorts of questions we discuss and debate all the time regarding legal cases, there isn’t some holy grail interpretation method that will shortcut you past the work of reading all the cases and understanding how the law is developed and how the law has interacted with the facts and what the limiting principles are.

            Because of that, I don’t think your opinion, or Justice Thomas’ opinion without 4 more votes, for the purist way the Constitution “should” be interpreted counts for anything, unless you just want to write a constitutional history article or something. We have a common law system, it has evolved in a certain way, and protecting non-citizens’ rights is actually a huge part of how it has evolved. We’re not going back just because someone stands up and says “hey wait a second, you screwed up way back when you decided Gitlow 100 years ago!”.

            1. parking in a No Stopping zone is an infraction that will get you fined

              I like that you think there’s one objective answer for what “parking means”, what “in” a given zone means, or that you think such infraction “will” get you fined rather than that it *might* get you fined.

              1. That’s equating different claims of indeterminacy. Even the crits said you shouldn’t do that.

            2. Look, to claim that we don’t know that rights were supposed to be incorporated via the P&I clause is a joke. The evidence is overwhelming.

              What we’re looking at here is a sort of radical indeterminacy claim, which is advanced only because somebody doesn’t actually give a damn, but doesn’t want to admit it.

              They wrote the 14th amendment to incorporate the enumerated and unenumerated rights via the P&I clause, while the due process clause was just about procedure. Then the Slaughterhouse Court set out to gut the 14th amendment by denying this. That’s HISTORY.

              Then when the Supreme court was finally interested in incorporation again, rather than admit that their own institution had screwed things up, deliberately gotten it wrong to moot an amendment they didn’t like, they pulled “substantive due process” out of their asses. It was a triumph of institutional pride over honesty. And of power lust: They wanted to have the power to only incorporate the rights they approved of, not the whole ball of wax.

              They should have just overturned the Slaugherhouse cases, admitted their own institution had deliberately turned an amendment on it’s head, and gone straight to full incorporation, as the 14th amendment was written to accomplish. That would have been the honest thing to do.

              It’s still the honest thing to do. And that’s enough reason to do it.

              Oh, and does this imply citizens have more rights than non-citizens? Boo hoo, that’s the Constitution we actually have, suck it up.

              1. The Due Process Clause was never just about procedure. Because all SDP is, is a recognition that for some things, infinite process is due.

                And by the way, even Thomas doesn’t claim SDP doesn’t exist.

                The entire legal system thinks your position is idiotic. We’re experts. You aren’t. Try to have some humility Brett.

                1. “Because all SDP is, is a recognition that for some things, infinite process is due.”

                  Maybe we could find a name for those things. Just spitballing, but maybe we could call them privileges. Or communities.

    2. I actually don’t mind them because they highlight a really important flaw with originalism: namely that instead of the certainty it claims to create, it turns on a judge’s unpredictable and potentially idiosyncratic understanding of the past. So when Thomas does these solo dissents (that even Gorsuch won’t join) it should remind people that originalism isn’t actually a method that does all of what it purports to achieve.

      1. The Privileges and Immunities clause will create a two-tier system when it comes to speech. States will be allowed to create laws to limit the speech for non-citizens. While the Federal government will be restricted in general. This is oxymoronic. Selective Incorporation has allowed the states to be the laboratories for democracy.

      2. “it turns on a judge’s unpredictable and potentially idiosyncratic understanding of the past. ”

        There’s nothing at all idiosyncratic about this; Anybody who looks at the history of the 14th amendment who wasn’t already trained up in the idea of “substantive due process” would arrive at this conclusion, the Congressional record and contemporaneous debates are all quite clear on the question.

        The only motive for inventing an oxymoron like “substantive due process” is to reverse what the Slaugherhouse cases did to the P&I clause without explicitly overturning them. You’d never invent such a notion otherwise, it’s utterly ahistorical.

        1. Thank you, Brett Bellmore, this is exactly right. Everyone (outside the Court), left, center, and right, have called for the overruling of the Slaughterhouse cases. It was gravely wrong the day it was decided.

        2. I agree Slaughterhouse was wrongly decided, but the issue still remains with relying solely on a judge’s historical interpretations and disregarding long-standing precedent in reaching decisions. And for what it’s worth I don’t think either you nor Justice Thomas will be very pleased if five Justices did what he does but then adopt the interpretive approach to the Reconstruction Amendments that Eric Foner uses.

          1. I’m a bit unclear about why favoring replacing clearly mistaken precedents with valid interpretations, is thought to imply that you should be OK with imposing other clearly mistaken interpretations.

            Correcting errors means you have to permit change, but it doesn’t mean you have to accept changes that are themselves errors.

            Take a look at the oath Supreme court justices take. Notice that they swear allegiance to the Constitution, not to precedent?

            If precedent and the Constitution conflict, they are oath bound to chose the Constitution. They are forsworn if they do anything else.

            Most of them are forsworn.

            1. Well that’s only true if Foner is mistaken.

            2. Take a look at the oath Supreme court justices take. Notice that they swear allegiance to the Constitution, not to precedent?

              One of the reasons you talk with such ignorance on this subject is you don’t even know what the Constitution is.

              John Marshall was around at the framing of the Constitution. And he told you what it actually was.

  4. I’m lost here. If the 14th Amendment applied the 1st Amendment to the States, then what relevance does what the States may have been doing prior to that have to do with what they are obligated to do after the 14th was ratified.

    Imagine if there had been a provision in the Constitution that outlawed slavery in the District of Columbia, and that the 13th Amendment applied that to the states. Would pre-1865 State laws be relevant?

    And procedurally, how does Kansas get to appeal a decision of its own Supreme Court (_State v. Boettger_)???

    1. It’s not the pre 14A state laws that Thomas thinks matter for what 1A means, it’s the early Supreme Court decisions on 1A in respect to the Federal Government.

      The early courts took a very narrow view of the free speech and free press clauses.

      That famous decision that introduced the “shouting fire in a theater” meme into !A law, was about a federal criminal prosecution over anti-draft speech during the Civil War, basically declared that the US congress could criminalize any speech for any reason.

  5. Maybe there is something to the rumors Thomas is going to resign at the end of this term. He has filed a lot of cranky sounding denials of cert recently.

    1. Maybe both he and RBG — which would explain Roberts desperately trying to dodge issues. Scalia died in February — when is too late for rump to nominate replacements?

      1. Possibly it’s already too late, given that he and McConnell really haven’t been on the best of terms, and McConnell is probably looking forward to a Trump free life.

        If Biden got to nominate the replacement for both RBG and Thomas, I think the conservative judicial project would be dead for at least a generation. If it isn’t already due to Roberts’ defection.

        1. I did read a rumor that Thomas agreed to step down with RGB. The deal would be Trump gets to replace Thomas and the Senate holds RGB’s seat for the election.

          I know one “insider” has said Thomas appears to be exhausted and has become frustrated since Scalia died losing his “partner in crime.” Thomas isn’t in it for the “cause” like many of the liberal justices who are opting to die on the bench to try to wait until a Dem might get back into the White House. Life is pretty short and it wouldn’t surprise me if he wanted to find a nice little place at a conservative law school where he can teach a few classes and not be bothered.

          1. Hey, he established a coherent jurisprudence that future judges, his clerks, can rely upon. That’s all he could really hope for. And, though he hasn’t sat a whole lot of precedent, he has established his ideology throughout the court.

            Where did you read that rumour? It makes some sense … Ginsburg, on multiple occasions, has participated in the Court from her hospital bed, she clearly can’t go on like this. But I would assume she is just gonna wait for Biden to get elected and go from there.

          2. I don’t doubt that Thomas would like to retire, if he could be replaced by somebody whose views he respected. OTOH, at this point why would he assume that of somebody recommended by the Federalist Society?

            And assuming he did think Trump would nominate somebody suitable, why would he want to couple his retirement to RBG’s? What’s in it for him? What’s in it for her?

            Sounds like some kind of wishful thinking.

          3. The deal would be Trump gets to replace Thomas and the Senate holds RGB’s seat for the election.

            Why on earth would Ginsburg trust Trump and McConnell to uphold their end of that bargain???

            1. It’s just a left-wing fantasy about Thomas retiring, that’s all. Don’t expect it to make sense.

  6. Just about every clever 2-L has had the thought that the P&I clause was the “right” clause through which to impose parts of the Bill of Rights on the states, and then they realize that it makes no difference that we used the “wrong” clause — the work-around for non-citizens is childishly easy — except that “substantive due process” sounds funny. Then they get back to doing real work.

    1. It ‘makes no difference’ that it’s the wrong clause, except that it’s wrong, and that should matter to people.

      Why did they do it? Because they didn’t want to admit that their own institution deliberately sabotaged the 14th amendment. Institutional pride drove them to falsify history.

      1. You must realize how deranged that sounds. Maybe the decision in the Slaughterhouse Cases was a mistake. Let’s assume it is. The Supreme Court has since spent over a century using the due process clause to do what might have been the proper office of the privileges and immunities clause. And they are continuing this course, when it makes no substantive difference whether they continue what they have been doing or reverse the Slaughterhouse Cases, say about a century of substantive due process jurisprudence “never mind, just pretend we were using the P&I clause all along,” and call future SDP cases P&I cases — to what conceivable end? It can’t be to “falsify history.” The history is too well known to cover up. It can’t be a substantive objection, because they are doing with SDP exactly what a revitalized P&I would do. The Supreme Court could ignore the “wrong clause” issue — to the extent anyone cares about it — or frankly reverse and suffer not a bit whichever they do. Taking the path of least resistance is ordinary human nature and easily understood; any theory more sinister than that simply does not make human sense.

Please to post comments