Contrasting Concurrences of Clarence Thomas: Deploying Originalism and Paternalism in Commercial and Student Speech Cases

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 26 No. 2

Georgia State University Law Review

Volume 26 . „

Article 3

Issue 2 Winter 2009

3-21-2012

Contrasting Concurrences ofClarence Thomas: Deploying Originalism and Paternalism in Commercial and Student Speech Cases

Matthew D. Bunker

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Recommended Citation

Bunker, Matthew D. (2009) "Contrasting Concurrences of Clarence Thomas: Deploying Originalism and Paternalism in Commercial and Student Speech Cases," Georgia State University Law Review: Vol. 26: Iss. 2, Article 3. Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss2/3

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CONTRASTING CONCURRENCES OF CLARENCE

THOMAS: DEPLOYING ORIGINALISM AND PATERNALISM IN COMMERCIAL AND STUDENT

SPEECH CASES

Matthew D. Bunker* and Clay Calvert**

Introduction

"Whatever the reason, Justice Thomas has indeed become a free-speech defender."'

That's what First Amendment² scholar David L. Hudson, Jr.³ wrote back in 2002 in the process of lauding United States Supreme Court Justice Clarence Thomas as "an ardent defender of commercial free-speech rights"⁴ and a "forceful advocate for commercial speech."⁵ One of the key cases supporting Hudson's thesis and proposition is 44 Liquormart, Inc. v. Rhode Island? in which Justice Thomas authored a concurring opinion designed "to attack the Central

* Reese Phifer Professor of Journalism, College of Communication and Information Sciences, University of Alabama, Tuscaloosa, Alabama. B.S., 1979, Business Administration, Kansas State University; J.D., 1985, University of Kansas; Ph.D., 1993, Mass Communication, University of Florida.

** Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the College of Journalism and Communications, University of Florida, Gainesville, Florida. Member, State Bar of California. The authors thank Patrick Hanifin and Katy Hopkins of the Pennsylvania State University for reviewing early drafts of this article.

1. David L. Hudson, Jr., Justice Clarence Thomas: The Emergence of a Commercial-Speech Protector, 35 CREIGHTON L. REV. 485,486 (2002).

2. The First Amendment to the United States Constitution provides, in pertinent part, that "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." U.S. CONST, amend. I. The Free Speech and Free Press Clauses were incorporated more than eight decades ago through the Fourteenth Amendment Due Process Clause to apply to state and local government entities and officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925).

3. See Biography: David L. Hudson, Jr., First Amendment Center Website, http://www.firstamendmentcenter.org/biography.aspx?name=Hudson (providing background on Hudson and describing him, in relevant part, as "a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues. He is the author or co-author of [twenty] books, including several on the U.S. Supreme Court, the Constitution and student rights.") (last visited Feb. 12,2008).

4. Hudson, supra note 1, at 487.

5. Id.

6. 517 U.S. 484 (1996).

321

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Hudson test and to advocate enhanced First Amendment status for certain commercial speech."⁸ As Hudson put it, it was in Justice Thomas's concurrence in 44 Liquormart in which he "emerged as a high protector of commercial speech ... ."⁹ Hudson, who is not alone among legal scholars in praising Justice Thomas as a First Amendment advocate on issues like commercial speech,¹⁰ concluded his law review article by asserting that "Justice Thomas more and more stakes out his claim as a Justice sensitive to First Amendment claims."¹¹

But just five years later, in June 2007 in Morse v. Frederick, Justice Thomas was calling for the end of all speech rights for students in public school settings, writing that "[i]n light of the history of American public education, it cannot seriously be suggested that the First Amendment 'freedom of speech'

7. This is a reference to the United States Supreme Court's opinion in Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557 (1980). In Central Hudson, the high Court created a four-part test for determining whether a restriction on commercial speech was permissible under the First Amendment, writing that:

In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Id. at 566.

8. Arlen W. Langvardt, The Incremental Strengthening of First Amendment Protection for Commercial Speech: Lessons from Greater New Orleans Broadcasting, 37 Am. bus. l.J. 587, 621 (2000).

9. Hudson, supra note 1, at 496.

10. Brooklyn Law School Professor Joel Gora, for instance, wrote in 2001 that:

Justice Thomas, along with Justice Kennedy, has turned out, in many instances, to be quite a vigorous proponent and supporter of free speech, particularly commercial speech. He takes the position that as long as the advertising is for a lawful product and it is not false or misleading, commercial speech should be judged by the same First Amendment standards as any other kind of speech. If the advertising is lawful and not fraudulent, the Court should not engage in any of these diluted balancing tests. According to Justice Thomas, commercial speech should be assimilated into the First Amendment family, not treated as a stepchild, and provided with full First Amendment protection.

Joel Gora, The Calm After the Storm: First Amendment Cases in the Supreme Court's 2000-2001 Term,

18 touro L. Rev. 29,39 (2001) (footnotes omitted).

11. Hudson, supra note 1, at 501.

12. 551 U.S. 393 (2007).

2010] CONTRASTING CONCURRENCES OF CLARENCE THOMAS 323

encompasses a student's right to speak in public schools."¹³ Justice Thomas boldly proclaimed in Morse that, if given the opportunity, he gladly would "dispense with"¹⁴ the United States Supreme Court's seminal 1969 decision in Tinker v. Des Moines Independent Community School District}⁵ In Tinker, the high court ruled that expression by public school students while on campus¹⁶ is protected by the First Amendment unless actual facts exist¹⁷ that might reasonably lead "school authorities to forecast substantial disruption

1 St

of or material interference with school activities ...."

There is, then, a jurisprudentially jarring contrast between Justice Thomas's desire to expand protection for commercial speech and to elevate advertisers up from the ranks of second-class First Amendment citizens,¹⁹ on the one hand, and his simultaneous yearning to obliterate constitutional protection for the speech of public school students and to relegate them to a constitutional status

13. Id. at 419 (Thomas, J., concurring).

14. Id. at 422.

15. 393 U.S. 503 (1969).

16. Tinker centered around the black armbands worn on campus students to protest the war in Vietnam, and the Court wrote that:

A student's rights ... do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without "materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school" and without colliding with the rights of others.

Id. at 512-513 (quoting Bumside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966) (emphasis added)).

17. The high Court made it clear that mere speculation of harm will not justify squelching student speech rights, opining that an "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Id. at 508. What's more, the court in Tinker wrote that "[i]n order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint" Id. at 509 (emphasis added).

18. Id. at 514.

19. Cf. Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. rev. 767, 830 (2001) (writing that commercial speech currently is "treated as a second-class First Amendment citizen").

Other second-class First Amendment citizens include broadcasters, who hold reduced First Amendment rights. See Donald E. Lively, The Information Superhighway: A First Amendment Roadmap, 35 B.C. L. Rev. 1067, 1072 (1994) (describing "broadcasting's second-class First Amendment status") (footnote omitted); Kathleen M. Sullivan, Free Speech Wars, 48 SMU L. Rev. 203, 206 (1994) (observing that "over-the-air broadcasters . . . have long resented their treatment as second-class First Amendment citizens ...") (footnote omitted).

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below that of federal prisoners, on the other. This incongruity is exacerbated by the fact that the realms of commercial speech and student speech share much in common.

First, both are relatively new developments and bodies of law within the confines of First Amendment jurisprudence, with commercial speech "not...