Black Like Me: The Free Speech Jurisprudence of Clarence Thomas

1. This chapter is an updated adaptation of Steven B. Lichtman, “Black Like Me: The Free Speech Jurisprudence of Clarence Thomas”, Penn State Law Review 114 (2009): 415–468.

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2. David L. Lange and H. Jefferson Powell, No Law: Intellectual Property in the Image of an Absolute First Amendment (Stanford, CA: Stanford Law Books, 2009), 259.

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3. Roger K. Newman, Hugo Black: A Biography (New York: Pantheon Books, 1994), 157.

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4. Andrew Peyton Thomas, Clarence Thomas: A Biography (San Francisco, CA: Encounter Books, 2001), 505.

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5. See Kevin Merida and Michael A. Fletcher, Supreme Discomfort: The Divided Soul of Clarence Thomas (New York: Doubleday, 2007), 163.

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6. See Clarence Thomas, “The James McClure Memorial Lecture in Law Delivered by the Honorable Clarence Thomas, October 19, 1995”, Mississippi Law Journal 65 (1996): 465

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7. Clarence Thomas, “Victims and Heroes in the Benevolent State”, Harvard Journal of Law and Public Policy 19 (1996): 671–683

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8. Clarence Thomas, “Personal Responsibility”, Regent University Law Review 12 (2000): 319

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9. Friedrich A. Hayek, The Constitution of Liberty (Chicago, IL: University of Chicago Press, 1960).

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10. Thomas I. Emerson, The System of Freedom of Expression (New York: Random House, 1970), 6.

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11. Rodney A. Smolla, Free Speech in an Open Society (New York: Alfred A. Knopf, 1992), 9.

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12. See generally John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).

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13. David A. J. Richards, “Free Speech as Toleration”, in W. J. Waluchow, ed., Free Expression: Essays in Law and Philosophy (Oxford: Clarendon Press, 1994), 34.

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14. Alexander Meiklejohn, “The First Amendment is an Absolute”, Supreme Court Review 1961 (1961): 245–266.

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15. Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (New York: Harper, 1948), 23.

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16. Mark Graber has similarly characterized Thomas’s free speech work as “libertarian.” See Mark A. Graber, “Clarence Thomas and the Perils of Amateur History”, in Earl M. Maltz, ed., Rehnquist Justice: Understanding the Court Dynamic (Lawrence, KS: University Press of Kansas, 2003), 80.

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17. For a fine study on concurring opinions, see Pamela C. Corley, Concurring Opinion Writing on the U.S. Supreme Court (Albany, NY: SUNY Press, 2010).

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18. Frederick insisted it was nothing more than a nonsense phrase that was designed to get him and his friends on television. See James C. Foster, Bong Hits 4 Jesus: A Perfect Constitutional Storm in Alaska’s Capital (Fairbanks, AK: University of Alaska Press, 2010)

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19. It has also been, arguably, much more stark. Thomas’s opinion in 44 Liquormart was a spirited condemnation of governmental paternalism; his opinion in Morse however, is an embrace of governmental paternalism. As one article put it, his Morse opinion “represents a unidirectional flow of communication, in which there is a transmission of speech from government authorities (school teachers) to students. The receipt of information is completely controlled by the government, with students having no input…. Thomas’s pro-paternalism stance affects not just what students can say, but also the speech that they can receive. Students are not allowed to challenge the received information—to question it, to debate it—in any way because the government knows best what speech they should receive.” Matthew D. Bunker and Clay Calvert, “Contrasting Concurrences of Clarence Thomas: Deploying Originalism and Paternalism in Commercial and Student Speech Cases”, Georgia State University Law Review 26 (2010): 357–358.

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20. Guy-Uriel E. Charles, “Colored Speech: Cross-Burnings, Epistemics, and the Triumph of the Crits”, Georgetown Law Review 93 (2005): 577.

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