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.