FAN 65 (First Amendment News) Does Justice Thomas believe in a race-hate exception to the First Amendment?
The Ku Klx Klan marched frequently in Savannah [where Clarence Thomas grew up], and Klan members dominated the police ranks of the 1930s, ’40s, and ’50s . . . Ken Foskett, Judging Thomas: The Life & Times of Clarence Thomas (2004)
As a child in the Deep South, I’d grown up fearing the lynch mobs of the Ku Klux Klan . . . . Clarence Thomas, My Grandfather’s Son: A Memoir (2007)
One has to wonder whether his vote was not at least in some measure affected by the particular license plate at issue — displaying the Confederate flag. David Cole, quoted in the National Law Journal, June 22, 2015
If you would better understand Justice Clarence Thomas’s vote in the Confederate license-plate case handed down last week, it may be helpful to turn the clock back to December 11, 2002. That was a rare moment in the modern history of the Supreme Court. For it was one of the few times that Justice Thomas spoke up during oral arguments. The case was Virginia v. Black (audio here). As revealed in the transcript of that case involving a First Amendment challenge to a state cross-burning statute, Justice Thomas expressed himself boldly when he questioned Michael Dreeben of the Department of Justice. “Thomas spoke [i]n a deep, booming, voice, shaking with emotion”:
Justice Thomas: “[I]t’s my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and . . . the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror. . . [Wasn’t] that significantly greater than [any] intimidation or a threat?”
Mr. Dreeben: “Well, I think they’re coextensive, because it is –“
Justice Thomas: “Well, my fear is, Mr. Dreeben, that you’re actually understating the symbolism [and] the effect of the cross, the burning cross. I indicated, I think, in the Ohio case, that the cross was I indicated, . . . that the cross was not a religious symbol and that it . . . was intended to have a virulent effect. And . . . I think that what you’re attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is unlike any symbol in our society.”
Justice Thomas was equally forceful in his published dissent in that First Amendment case: “‘The world’s oldest, most persistent terrorist organization is not European or even Middle Eastern in origin. Fifty years before the Irish Republican Army was organized, a century before Al Fatah declared its holy war on Israel, the Ku Klux Klan was actively harassing, torturing and murdering in the United States. Today . . . its members remain fanatically committed to a course of violent opposition to social progress and racial equality in the United States.” M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia vii (1991). To me, the majority’s brief history of the Ku Klux Klan only reinforces this common understanding of the Klan as a terrorist organization, which, in its endeavor to intimidate, or even eliminate those its dislikes, uses the most brutal of methods.”
In the News
→ Judge Andrew Napolitano: “NAACP’s call to prosecute hate groups violates First Amendment – hate speech is protected,” Bizpac Review, June 23, 2015 (Fox News video clip)
It is true, nonetheless, that Justice Thomas signed onto Justice Antonin Scalia’s majority opinion in R.A.V. v. City of St. Paul (1992). That case involved a successful First Amendment challenge to a state law prohibiting the display of a symbol that one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” (Justice Thomas was silent during oral arguments in R.A.V.)
In his dissent in Virginia v. Black, however, Justice Thomas sought to disassociate himself from any expansive reading of R.A.V.: “I believe that the majority errs in imputing an expressive component to the activity in question . . . (relying on one of the exceptions to the First Amendment’s prohibition on content-based discrimination outlined in R. A. V. v. St. Paul) . . . . In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means.” But there was more here than adherence to precedent; there was the matter of understanding the nature of bigotry: “In every culture,” wrote Thomas, “certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred and the profane. I believe that cross burning is the paradigmatic example of the latter.”
And then there was his vote and concurrence in Capitol Square Review & Advisory Board v. Pinette (1995), wherein he wrote: “I join the Court’s conclusion that petitioner’s exclusion of the Ku Klux Klan’s cross cannot be justified on Establishment Clause grounds. But the fact that the legal issue before us involves the Establishment Clause should not lead anyone to think that a cross erected by the Ku Klux Klan is a purely religious symbol. The erection of such a cross is a political act, not a Christian one. In Klan ceremony, the cross is a symbol of white supremacy and a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan.”
Admittedly, there any number of reasons (nuanced ones) that might explain Justice Thomas’s votes in R.A.V. and Pinette, his dissent in Virginia v. Black, and his vote in the 5-4 ruling in Walker v. Sons of Confederate Veterans. But in light of that vote, and mindful of Justice Samuel Alito’s compelling dissent in Walker, one wonders: Could it be that lingering beneath all of this is some sympathy for a kind of a race-hate exception to the First Amendment? I assert nothing definitive here; I am only suggesting that there may be something in Thomas’s thinking that could allow for an exception to current First Amendment doctrine. Or consider this: Might racial bigotry be an important factor in Justice Thomas’s application of judicial formulas such as the incitement test? In that regard, one would think that Justice Thomas might well agree with a point Justice Elena Kagan (who was in the majority) made during oral arguments in Walker:
Mr. James George: “Well, the this Court’s rule law on incitement, going back to Brandenburg v. Ohio and the Ku Klux Klan rally that this Court decided was not incitement, it is pretty thin at this point in our history, because I don’t know what the rule of incitement would be today.”
Justice Kagan: “No, but Mr. George, just the worst of the worst, whether it’s the swastika or whether it’s the most offensive racial epithet that you can imagine, and if that were on a license plate where it really is provoking violence of some kind. You know, somebody is going to ram into that car . . . .”
Similarly, Justice Thomas might well approve of the following statement made during oral arguments by Justice Stephen Breyer (author of the majority opinion in Walker): “Now, is there something to be said for Texas? Yes. What they’re trying to do is to prevent their official imprimatur from being given to speech that offends people.” Not just any offense, but a racial offense. It is precisely that kind of racial offense that motivates the current campaign in South Carolina to remove the Confederate flag from the state capitol grounds.
While his early votes in cases such as R.A.V. and Pinette suggest that race is not a determinative factor in Justice Thomas’s First Amendment jurisprudence, since 2002 there seems to have been shift in his view. Both his dissent in Virginia v. Black and his vote in Walker may indeed be signs of that purported shift. In the earlier, pre-Black cases, Justice Thomas voted to sustain the First Amendment claim but then voiced his disapproval of the bigoted speech at issue. In the post-Black cases, however, Justice Thomas voted to deny the First Amendment claim in such cases.
Of course, there is a good dollop of speculation here, which is therefore not beyond fair challenge. That said, sometimes it is easy to be oblivious to the obvious, to that which transcends niceties and nuances. And that something may be a key factor in Justice Thomas’s constitutional take on race-hate speech and the First Amendment. Again, I do not offer this as a hard-and-fast conclusion, but rather as something to consider — think of it as a possibility waiting to be proven.
Given my reservations, I invited Professor Scott Gerber, author of First Principles: The Jurisprudence of Clarence Thomas (2002), to comment on my hypothesis: “I agree with your perceptive observation about Justice Thomas’s approach to race-hate speech and the First Amendment,” he told me. “Indeed, Justice Thomas has come as close as any member of the Court ever has to accepting the Critical Race Theory approach to the issue. I have long mentioned this to my students when I teach Virginia v. Black, and I made a similar observation in a symposium essay I wrote on Justice Thomas’s First Amendment jurisprudence. The Court’s recent Confederate license plate decision provides additional support for this conclusion, and it also reminds us of how sophisticated Justice Thomas’s thinking is, especially on matters of race.”
→ See also Adam Clymer, “About That Flag on the Judge’s Desk,” New York Times, July 19, 1991
First Amendment Opinions by Justice Thomas
- Reed v. Town of Gilbert (2015) (vote: 9-0)
- Reichle v. Howards (2012) (vote: 8-0)
- Washington State Grange Washington State Rep. Party (2008) (vote: 7-2)
Some of his more notable separate opinions during this same period include his opinions in:
- McCutcheon v. FEC (2014) (concurring in the judgment)
- Lane v. Franks (2014) (concurring)
- Borough of Duryea v. Guarnieri (2011) (concurring in the judgment)
- Citizens United v. FEC (2010) (concurring & dissenting in part)
- Milavetz, Gallop & Milavetz v. United States (2010) (concurring in part & concurring in the judgment)
- Morse v. Frederick (2007) (concurring)