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 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, 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 his Court’s decision in New York Times v. Sullivan (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 (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.
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 (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.”
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 (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 (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. 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 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 — 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 (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, 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 (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 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, 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 (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.
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