While Our Minds were Elsewhere

Mark Graber

An obscure dissent by Justice Clarence Thomas may be nearly as disturbing for the future of judicial review as the dismal line of decisions on the merits this past week.  The case was Coral Ridge Ministries Media, Inc v. Southern Poverty Law Center.  The issue was whether the Southern Poverty Law Center had the legal right to describe Coral Ridge as a ‘hate group” because that group condemned same-sex marriage and homosexuality.  Two lower federal courts said this was an obvious exercise of free speech rights.  Thomas disagreed.

That Thomas would overrule New York Times v. Sullivan (1964), a case which requires persons suing public figures for defamation to prove falsehood and actual malice, is not disturbing, standing alone.  Most constitutional democracies have looser requirements for proving libel than the United States and those regimes seem about as democratic as the United States.  Thomas’s timing may be suspect.  As is true of much of the Thomas oeuvre, he discovers historical objections to practices at about the time conservatives raise political objections to practices.  Donald Trump complains of being libeled and, lo and behold, Thomas tells us that he never realized before that American libel law was inconsistent with history (unsurprisingly, the story is far more complicated).

The more disturbing problem is what speech Thomas thinks is not protected.  He excoriates the South Poverty Law Center for “lump[ing]” Coral Ridge's Christian ministry with groups like the Ku Klux Klan and Neo-Nazis."  Apparently, this is a falsehood.  If, however, you believe persons have a fundamental right to choose their intimate and marriage partners, Coral Ridge starts to resemble the Ku Klux Klan and Neo-Nazis.  That Coral Ridge, as Thomas points out, claims they love homosexuals but not homosexuality is hardly dispositive.  A great many members of religious hate groups claim to love Jews who convert to Christianity, just not their Jewishness.  One wonders why Thomas has nothing to say about pro-life advocates who call doctors who perform abortions “murderers.”  The one is no more false than the other.

A great many people have pointed out that the Court’s solicitude for religion is limited to conservative religions.  Jews who have religious obligations to provide and seek abortions are not likely to be treated as well as Christians who have religious objections to vaccines.  Now we learn conservatives are preparing the rest of the First Amendment to be a shield for conservatives and a sword against liberals.  While Thomas's first amendment may not protect the right to hime and Samuel Alito bigots for their views on women and sexuality, right-wing radio is apparently the epitome of speech protected by the Constitution.  Stay tuned.