[Clarence Thomas has an expansive view of free speech for campaign
donors. For most everyone else, not so much.] [[link removed]]

CLARENCE THOMAS WANTS TO SHRINK YOUR FREE SPEECH RIGHTS — UNLESS
YOU ARE A RICH DONOR   [[link removed]]

 

Ian Millhiser
May 12, 2020
Vox
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_ Clarence Thomas has an expansive view of free speech for campaign
donors. For most everyone else, not so much. _

Vice President Mike Pence takes the oath of office from Supreme Court
Clarence Thomas. , Joe Raedle/Getty Images

 

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
[[link removed]] 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_
[[link removed]], 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.

As a general rule, courts are reluctant to accept “facial”
challenges to an allegedly unconstitutional law — challenges that
seek to invalidate the law in all of its applications — rather than
simply holding that the court will not apply that particular law to a
particular plaintiff. The overbreadth doctrine makes it easier to
bring a facial challenge under the First Amendment, and thus provides
heightened protection against laws that burden free speech. Thomas’s
opinion would permit many laws that burden free speech to remain on
the books, even after a court determines that they would chill a
significant amount of free expression.

It’s not the first time Thomas has articulated a narrow vision of
the First Amendment. In 2019, he attacked
[[link removed]] his
Court’s decision in _New York Times v. Sullivan_
[[link removed]] (1964),
one of the Supreme Court’s foundational First Amendment decisions,
which protects journalists against malicious libel suits that could
stifle a free press.

Likewise, in _Brown v. Entertainment Merchants Association_
[[link removed]]_ _(2011),
Thomas suggested that children and teenagers have no First Amendment
rights whatsoever. “The practices and beliefs of the founding
generation establish that ‘the freedom of speech,’” he wrote in
his _Brown _dissent, “does not include a right to speak to minors
(or a right of minors to access speech) without going through the
minors’ parents or guardians.” No other justice joined Thomas’s
opinion in _Brown_.

These are serious attacks on the right to free speech.
Thomas’s _Brown_ opinion alone, if it were embraced by a majority
of his Court, would strip free speech rights from nearly 74 million
individuals
[[link removed]].

So it’s striking that there is one other case where Thomas took a
very expansive view of the First Amendment. In _Citizens United v.
Federal Election Commission_
[[link removed]] (2010), the
Supreme Court held that the right to free speech includes the right of
corporations to spend unlimited money on influencing elections. In a
partial dissenting opinion, Thomas complained that _Citizens United
“_does not go far enough.”

Justice Thomas, in other words, envisions a much weaker First
Amendment for children, journalists, and, indeed, for much of the
country. But when wealthy donors seek relief from campaign finance
restrictions, Thomas takes a maximalist view of their First Amendment
rights.

The overbreadth doctrine, briefly explained

Thomas’s opinion in _Sineneng-Smith_ involves a fairly technical
doctrine, but it’s worth taking a moment to understand that
doctrine, and Thomas’s critique of it, because that critique is at
odds with the view Thomas takes in _Citizens United_.

As a general rule, federal courts hear two types of constitutional
challenges claiming that a federal or state law violates the
Constitution. “Facial” challenges seek to invalidate a specific
legal provision in its entirety. If a plaintiff prevails in such a
challenge, then the legal provision they challenged ceases to operate
altogether.

By contrast, when a court declares that a law is invalid “as
applied” to a particular plaintiff, that means the law cannot be
applied in the specific circumstances that arose in that particular
case. But there may still be other circumstances where the law can
constitutionally be applied to other individuals.

Ordinarily, courts are reluctant to declare a law invalid on its face.
As the Supreme Court explained in _United States v. Salerno_ (1987),
“a facial challenge to a legislative Act is ... the most difficult
challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be
valid.”

Think of it this way. Suppose a state passes a law providing that bail
for all persons charged with theft shall be at least $100,000. Now
suppose that two different criminal defendants challenge this law
under the Eighth Amendment, which prohibits “excessive bail
[[link removed]].”

The first defendant is a teenager charged with shoplifting a pack of
gum from a convenience store. The second is a notorious art thief,
with multiple aliases and connections across the globe, who is charged
with stealing tens of millions of dollars’ worth of famous
paintings. In these circumstances, a $100,000 bail would clearly be
excessive for the first defendant. But, if anything, it’s probably
too low for the second defendant.

Because there are at least some sets of circumstances where a $100,000
bail would be appropriate for a criminal defendant charged with theft,
no one could bring a facial challenge to the state law setting this
minimum bail amount. But the shoplifiting defendant could bring an
as-applied challenge claiming that, as applied to their rather
insignificant offense, a bail of $100,000 is excessive.

And that brings us to the overbreadth doctrine. That doctrine provides
that _Salerno_’s high bar for facial challenges does not apply to
First Amendment lawsuits. Rather, as the Supreme Court explained
in _United States v. Stevens_
[[link removed]] (2010), a
law that burdens free speech may sometimes be facially invalidated if
“a substantial number of its applications are unconstitutional.”

The reason for this overbreadth doctrine is that the Court believes
free speech rights to be particularly fragile. If courts allow
statutes that ban some forms of speech to stand, the mere existence of
those laws could frighten individuals away from exercising their First
Amendment rights. As the Court explained in _Broadrick v. Oklahoma_
[[link removed]] (1973),
“the possible harm to society in permitting some unprotected speech
to go unpunished is outweighed by the possibility that protected
speech of others may be muted and perceived grievances left to fester
because of the possible inhibitory effects of overly broad
statutes.”

Nevertheless, Thomas raises a number of objections to this overbreadth
doctrine in his _Sineneng-Smith _opinion
[[link removed]]. He
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.”

One of Thomas’s primary objections to the doctrine is that he
believes the _Salerno_ standard should apply universally — indeed,
Thomas criticizes the very idea that anyone could bring a facial
challenge against any law. “Our ‘modern practice of strik[ing]
down’ legislation as facially unconstitutional bears little
resemblance to the practices of 18th and 19th century courts,”
according to Thomas.

Fair enough. Read in isolation, the new viewpoint that Thomas
announced in _Sineneng-Smith_ could be seen as a call for judicial
restraint — an assertion that courts should be more cautious before
they toss out an act of a legislature altogether.

But in _Citizens United, _Thomas sang a very different tune.

Thomas’s hypervigilant approach to campaign finance laws

The thrust of Thomas’s opinion in _Citizens United_, the landmark
Supreme Court decision that gutted much of America’s campaign
finance laws, is that as-applied challenges are insufficient to
protect donors whose political spending is disclosed to the public,
and that the Supreme Court should have declared a federal campaign
finance disclosure law facially invalid.

The bulk of Thomas’s partial dissent
[[link removed]] 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.

A majority of the Court concluded that these incidents were
insufficient reason to strike down disclosure laws on their face —
although the _Citizens United_ majority added that “as-applied
challenges would be available if a group could show a ‘reasonable
probability’ that disclosure of its contributors’ names ‘will
subject them to threats, harassment, or reprisals from either
Government officials or private parties.’”

Thomas, however, rejected this conclusion. “The Court’s promise
that as-applied challenges will adequately protect speech is a hollow
assurance,” he wrote, adding that “‘the advent of the
Internet’ enables ‘prompt disclosure of expenditures,’ which
‘provide[s]’ political opponents ‘with the information needed’
to intimidate and retaliate against their foes.”

In Thomas’s view, disclosure laws must be struck down _on their
face,_ in order to prevent campaign donors from facing harassment.

Whatever the merits of this position — which was rejected by all
eight of Thomas’s colleagues in _Citizens United_ — it is
difficult to reconcile the position Thomas took on disclosure laws
in _Citizens United_ with the broad concerns with “our ‘modern
practice of strik[ing] down’ legislation as facially
unconstitutional” that he announced in _Sineneng-Smith._

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_.

But, at the very least, it is enough to point out that Thomas took a
maximalist approach to the First Amendment in _Citizens United_, and
then took such a radically different approach in a more recent
opinion.

History is a poor guide for judges interpreting the First Amendment

A common thread running through Thomas’s First Amendment decisions
— indeed, a thread that runs through Thomas’s decisions on many
topics
[[link removed]] —
is his belief that the Court has departed from the way the
Constitution was understood by the generation that framed it. His
primary complaint in _Sineneng-Smith_ is that the overbreadth
doctrine “is untethered from the text and history of the First
Amendment.” Similarly, in _McKee v. Cosby_
[[link removed]] (2019),
Thomas argues that a venerable Supreme Court decision protecting
journalists from malicious libel suits was wrong because it did not
apply “the First Amendment as it was understood by the people who
ratified it.”

One overarching problem with Thomas’s project of trying to interpret
that First Amendment as it was originally understood by the framing
generation is that it is far from clear that such a thing is possible.
And, if it is possible, there is considerable evidence that the
framers’ understanding of the amendment was so narrow that
modern-day Americans would find it unacceptable.

Under the English common law
[[link removed]], which
informed much of the founding generation’s understanding of early
American law, the freedom of speech and of the press was largely
understood as a right not to have the government stop an individual
from publishing a particular statement. But once that statement became
public, the individual who made it could still face legal consequences
for their speech.

Early Supreme Court decisions interpreting the First Amendment
accepted this limited view of free speech. As the Supreme Court
concluded in _Patterson v. Colorado_
[[link removed]] (1907), the
“main purpose” of the First Amendment’s guarantee of free speech
and a free press “is ‘to prevent all such previous restraints upon
publications as had been practiced by other governments,’ and they
do not prevent the subsequent punishment of such as may be deemed
contrary to the public welfare.”

Of course, modern Supreme Court decisions reject this narrow view of
the First Amendment, but they did not do so because modern-day
justices developed a better understanding of how the framers
understood the freedom of speech. Many First Amendment scholars have
concluded that the task of figuring out that amendment’s original
meaning is impossible. As Judge Robert Bork, the failed Supreme Court
nominee and godfather of the conservative originalist movement, wrote
in 1971, “the framers seem to have had no coherent theory of free
speech
[[link removed]] and
appear not to have been overly concerned with the subject.”

Yet while there is little clarity regarding the original understanding
of the First Amendment, the framing generation does appear to have had
very robust ideas about the legal rights of corporations. And these
ideas are hard to square with the expansive vision of corporate rights
that the Supreme Court, with Thomas’s enthusiastic support, embraced
in _Citizens United_.

In a 2016 law review article
[[link removed]],
former Delaware Chief Justice Leo Strine and his former law clerk
Nicholas Walter explain that “there were no business corporations
operating under so called general corporation statutes“ in the early
United States. Rather, corporations were created by the government,
and given “detailed charters that their managers were obligated to
follow with fidelity.”

As the Supreme Court held in _Dartmouth College v. Woodward_
[[link removed]] (1819),
“a corporation is an artificial being, invisible, intangible, and
existing only in contemplation of law. Being the mere creature of law,
it possesses only those properties which the charter of its creation
confers upon it either expressly or as incidental to its very
existence.”

For this reason, Strine and Walter conclude, _Citizens United_ is
out of step with the original understanding of the First Amendment,
not because it reads the amendment itself too expansively, but because
the framers would not have understood the modern Supreme Court’s
conclusion that a corporation possesses constitutional rights.

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.

_IAN MILLHISER is a senior correspondent at Vox, where he focuses on
the Supreme Court, the Constitution, and the decline of liberal
democracy in the United States. Before joining Vox, Ian was a
columnist at ThinkProgress. Among other things, he clerked for Judge
Eric L. Clay of the United States Court of Appeals for the Sixth
Circuit and served as a Teach For America corps member in the
Mississippi Delta. He received a B.A. in philosophy from Kenyon
College and a J.D., magna cum laude, from Duke University, where he
served as senior note editor on the Duke Law Journal and was elected
to the Order of the Coif. He is the author of Injustices: The Supreme
Court's History of Comforting the Comfortable and Afflicting the
Afflicted._

_Support VOX’s explanatory journalism
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