Earlier today, Mark Tushnet posted about Justice Thomas’s recent eye-opening concurrence in the Court’s denial of cert. in McKee v. Cosby. In that solo opinion, Thomas argued that the Court should abandon New York Times v. Sullivan and its progeny and revert to its earlier understanding that the First Amendment does not limit state libel law . . . at all.
Justice Thomas's proposal is, of course, alarming in its own right, as Steve Vladeck explains. And his insouciance about its implications are startlingly ahistorical, to say the least. The first 175 years of practice after the First Amendment's ratification, Thomas assures us, show that "[t]he States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm." That passage echoes Robert Nagel's acerbic attack on Sullivan a generation earlier: "For most of our history, reasonably vigorous public debate somehow coexisted with traditional defamation rules, but in 1964 it was discovered that the first amendment required significant alterations in these rules in order to foster vigorous public debate." As Doug Laycock explained then, however, what Nagel's (and thus Thomas's) pollyannaish account of a benign history of defamation law conveniently overlooked was that it was only in 1960 that Alabama officials discovered that traditional defamation rules could be used to destroy the civil rights movement.
My focus in this post is different, however--namely, to offer some observations about what Thomas's separate concurrence illustrates about modern trends in "originalist" theory and practice (and the gulf between them).
In his opinion, Justice Thomas repeatedly upbraids the post-1964 Court for constructing a doctrine without regard to the “original meaning” of the First Amendment. Here’s a flavor of his incessant theme: "We should not continue to reflexively apply [the Court's] policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments.” "[B]eginning with New York Times, the Court “federalized major aspects of libel law . . . . These decisions made little effort to ground their holdings in the original meaning of the Constitution." "None of [the] decisions [in the NYT v. Sullivan line] made a sustained effort to ground their holdings in the Constitution’s original meaning."
Justice Thomas's proposal is, of course, alarming in its own right, as Steve Vladeck explains. And his insouciance about its implications are startlingly ahistorical, to say the least. The first 175 years of practice after the First Amendment's ratification, Thomas assures us, show that "[t]he States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm." That passage echoes Robert Nagel's acerbic attack on Sullivan a generation earlier: "For most of our history, reasonably vigorous public debate somehow coexisted with traditional defamation rules, but in 1964 it was discovered that the first amendment required significant alterations in these rules in order to foster vigorous public debate." As Doug Laycock explained then, however, what Nagel's (and thus Thomas's) pollyannaish account of a benign history of defamation law conveniently overlooked was that it was only in 1960 that Alabama officials discovered that traditional defamation rules could be used to destroy the civil rights movement.
My focus in this post is different, however--namely, to offer some observations about what Thomas's separate concurrence illustrates about modern trends in "originalist" theory and practice (and the gulf between them).
In his opinion, Justice Thomas repeatedly upbraids the post-1964 Court for constructing a doctrine without regard to the “original meaning” of the First Amendment. Here’s a flavor of his incessant theme: "We should not continue to reflexively apply [the Court's] policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments.” "[B]eginning with New York Times, the Court “federalized major aspects of libel law . . . . These decisions made little effort to ground their holdings in the original meaning of the Constitution." "None of [the] decisions [in the NYT v. Sullivan line] made a sustained effort to ground their holdings in the Constitution’s original meaning."
Justice Thomas's mantra of fidelity to "original meaning" appears to be an effort to portray himself as a practitioner of the “New Originalism,” a school of thought that (in theory) has abandoned the old-fashioned, discredited “old originalism” ideas (associated with Robert Bork, et al.) that the Constitution should be interpreted according to the Framers’ intentions or expectations in favor of the idea that “constitutional interpretation is the discovery of the linguistic meaning of the constitutional text.”
For all his talk about original “meaning,” however, in his McKee opinion Justice Thomas never once discusses what the actual semantic meaning (public or otherwise) of the words of the First and Fourteenth Amendments might have been in 1789 and 1868. Indeed, he pays virtually no attention to the text at all. Instead, Thomas’s entire critique consists of describing the common law of libel and defamation when the Amendments (especially the First Amendment) were ratified; apparently applying an (unstated) presumption that the framers didn’t intend or foresee that the Constitution would upend that common law (as Steve Sachs might put it, that they intended to preserve a “constitutional backdrop”—but cf. my discussion at pages 1589-92 here); and then concluding that the "original understanding was that the common law would be unaffected."
It’s not until page 10 of his opinion that Thomas even quotes the text of the Free Speech Clause—and then, instead of trying to discern its “meaning,” he simply invokes with approval Justice White’s dissent in Gertz, which was expressly based upon a view of original “intent,” not textual meaning. (Thomas
even goes so far as to emphasize White's argument that “[s]cant, if any, evidence exists that the First
Amendment was intended to abolish the common law of libel, at least to the
extent of depriving ordinary citizens of meaningful redress against their
defamers.”)
Justice Thomas’s opinion, then, is a classic example of “original intent” and “original expected applications” originalism, of the sort the “New Originalism” had, in theory, rejected and interred forever—draped in the garments of the new “original public meaning” originalism.
Justice Thomas’s opinion, then, is a classic example of “original intent” and “original expected applications” originalism, of the sort the “New Originalism” had, in theory, rejected and interred forever—draped in the garments of the new “original public meaning” originalism.
Such a shell-game is nothing new. The self-described “originalists” on the Court very rarely purport to rely upon text in their constitutional opinions, let alone try to discern its original public meaning, As others have explained at far greater length, there’s virtually no correlation between the New Originalism and the “originalism” practiced by such Justices in actual cases. As Mike Dorf put it, the “new originalists" in the academy “make originalism respectable by answering objections leveled at ‘expectations based originalism’— but judges, elected officials, and the public misuse the credibility that these scholars lend to to originalism more broadly by relying on evidence about the framers' and ratifiers' expected applications in considering concrete cases." (A well-known example of this was Justice Scalia’s wisecrack in the oral argument in Hollingsworth v. Perry, where he tried to exploit the expectations of those who wrote and ratified the Equal Protection Clause, as though such expectations obviously govern the proper constitutional understanding today: “I’m curious,” he said to Ted Olson: “When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?”)
All of which is to say (as Dorf paraphrased Thomas Colby), the Justices—especially Justices Scalia and Thomas—talk the original-semantic-meaning talk, but they walk the original-expected-applications walk. (Mike points to Justice Thomas’s 2011 dissent in Brown v. Entertainment Merchants Ass’n—which takes the same form as his opinion in McKee last week—as another stark example of this phenomenon.)
When I posted these reactions to Justice Thomas’s McKee opinion on Twitter last week, my colleague Larry Solum—among the most rigorous and principled proponents of the new “semantic meaning” variant of originalism—tweeted back a couple of points in partial defense of what Justice Thomas might have been up to.
First, Larry noted that intent and expectations at the time of ratification—as reflected in practices that continued at the time—can provide evidence that’s relevant to what the public meaning of the text might have been.
I agree with Larry on at least this much: Contemporaneous practice can (but does not necessarily) reflect intent and expectations regarding a recently ratified constitution, which in turn can be relevant (but not dispositive) evidence of what the new originalists call the "original public meaning" of a constitutional text.
But that doesn't describe how Justice Thomas used his description of the common law in his McKee opinion, as Larry himself acknowledged (“What is missing,” he tweeted, “is Thomas's theory of the [original public meaning] of the 1A.”).
There’s good reason why Thomas didn’t go that route—namely, that it almost certainly would’ve been a dead end. If one were to have asked virtually any person in 1789 whether her “freedom” to “speak” would in any way be “abridged” if she were assessed a financial penalty for criticizing a public figure or official, the answer would almost surely have been “yes, of course,” based simply on the common public meaning of those three words. To be sure, such a person might also have been aware that states at the time exercised the lawful power to do just that—i.e., to assess penalties for defamatory speech of public figures, sometimes even when the speech was truthful. Would that have changed their view of the semantic meaning of the words of the Free Speech Clause? Presumably not: That ubiquitous practice would only have suggested to such a person that the states could lawfully “abridge” their “freedom” to “speak” under certain circumstances (and also, perhaps, that the Constitution was estopping Congress from henceforth doing the same).
Second, Larry tweeted that “the common law background may be part of the OPM of the 1A if the phrases ‘freedom of speech’ and ‘freedom of the press’ refer to preexisting legal rights.” In other words, perhaps the phrases “freedom of speech” and “freedom of the press” had specialized meanings at the time that were reflected in the existing state common law doctrines, such that the “freedom” being protected by the First Amendment was merely whatever “freedoms” one had to speak and publish before the Amendment was ratified, i.e., “the freedom of speech circa 1791.”
Even viewed solely through the lens of original intent or expectations, it’s unlikely that what the First Amendment did: I’m not aware of any evidence that the framers’ design (or expectation) was that the First Amendment would merely prevent Congress from making things even worse, or more restrictive, than they were in 1791 in terms of speech regulations. More to the (New Originalism) point, however, I’m not aware of any evidence that those textual phrases had any such specialized, “preservative” semantic meaning to the public of 1791 (or 1868)—in contrast to, say, the Seventh Amendment, which expressly “preserve[s]” the right to a jury for civil “Suits at common law” (an example that demonstrates that when the Framers wanted one of the Bill of Rights to track pre-constitutional antecedents, they knew how to say so unambiguously).
Not surprisingly, then, in his McKee opinion Justice Thomas makes no effort at all to show that those phrases had any such limited or specialized public meaning at ratification (such as by examining how various actors used such phrases at the time).
Moreover, think of the implications if the phrases did have that meaning, or if we concluded, for whatever reason, that the proper “reading” of the First Amendment is that it doesn’t restrict any regulations that states were permitted to impose before 1791: We’d have to jettison virtually all of the past century of Free Speech law, other than (perhaps) the constitutional restrictions against some forms of prior restraint. On a Court that has been so headstrong about using the Free Speech Clause to strike down all manner of economic regulations, usually in opinions joined by (and sometimes written by) Justice Thomas (see, e.g., Janus; Citizens United; Sorrell; Reed v. Town of Gilbert), it’s no wonder that no other Justice joined the Thomas dissent. (Mark Tushnet and Mike Dorf have already posted on what we might charitably refer to as Justice Thomas’s decidedly selective invocation of “originalism” in Free Speech cases (what Dorf calls “Justice Thomas's eagerness to re-evaluate some but not all of the Court's nonoriginalist precedents”).
A final, related point:
Even as a matter of assessing original expectations (or as Thomas puts it, original “understanding”), Justice Thomas’s paean to the history of libel and defamation common law in the states isn’t terribly compelling, for two reasons. The first is Mark’s point that the state common law itself developed in a manner designed to not unduly “chill” truthful speech, which is also the principal basis for the modern Court’s doctrines in the Sullivan line of cases. As Mark puts it: “[T]he modern academic idea of constitutional construction—an idea that has barely penetrated originalism as articulated on the Supreme Court—is fully adequate to support fleshing out chilling-effect ideas with reference to post-1791 practice. In my view, that’s what Justice Brennan was doing when he referred [in Sullivan] to ‘the court of history’ and its verdict on the constitutionality of the Sedition Act.”
Second, Thomas’s exposition on state common law is somewhat beside the point, because the States had no reason to think they were bound by the Free Speech and Press Clauses until at least 1925. The First Amendment, of course, referred only to Congress, and Thomas doesn’t cite contemporaneous or other examples of Congress (or other federal government actors) imposing liability for defamatory speech, other than the Sedition Act of 1798--which is, of course, hardly sufficient to establish his point about common understandings of how the First Amendment would or should operate, let alone of its "original meaning."