Black Like Me: The Free Speech Jurisprudence of Clarence Thomas

  • Steven B. Lichtman


Since his arrival on the Supreme Court in 1991, Clarence Thomas has emerged as a distinctive and interesting voice on free expression.1 While his First Amendment principles often dovetail with those of his fellow conservative Antonin Scalia, Thomas’s approach to freedom of speech is not an exact match with Scalia’s, nor is it an exact match with any of his other colleagues on the Court. In the modern era, Thomas has advanced an uncommon, perhaps idiosyncratic, vision.


Federal Communication Commission Free Speech Equal Employment Opportunity Commission Political Speech Constitutional Protection 
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  1. 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.Google Scholar
  2. 3.
    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.Google Scholar
  3. 4.
    Roger K. Newman, Hugo Black: A Biography (New York: Pantheon Books, 1994), 157.Google Scholar
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    Andrew Peyton Thomas, Clarence Thomas: A Biography (San Francisco, CA: Encounter Books, 2001), 505.Google Scholar
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    See Kevin Merida and Michael A. Fletcher, Supreme Discomfort: The Divided Soul of Clarence Thomas (New York: Doubleday, 2007), 163.Google Scholar
  6. 10.
    See Clarence Thomas, “The James McClure Memorial Lecture in Law Delivered by the Honorable Clarence Thomas, October 19, 1995”, Mississippi Law Journal 65 (1996): 465Google Scholar
  7. Clarence Thomas, “Victims and Heroes in the Benevolent State”, Harvard Journal of Law and Public Policy 19 (1996): 671–683Google Scholar
  8. Clarence Thomas, “Personal Responsibility”, Regent University Law Review 12 (2000): 319Google Scholar
  9. Friedrich A. Hayek, The Constitution of Liberty (Chicago, IL: University of Chicago Press, 1960).Google Scholar
  10. 11.
    Thomas I. Emerson, The System of Freedom of Expression (New York: Random House, 1970), 6.Google Scholar
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    Rodney A. Smolla, Free Speech in an Open Society (New York: Alfred A. Knopf, 1992), 9.Google Scholar
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    See generally John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).Google Scholar
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    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.Google Scholar
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    Alexander Meiklejohn, “The First Amendment is an Absolute”, Supreme Court Review 1961 (1961): 245–266.Google Scholar
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    Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (New York: Harper, 1948), 23.Google Scholar
  16. 18.
    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.Google Scholar
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    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).Google Scholar
  18. 59.
    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)Google Scholar
  19. 63.
    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.Google Scholar
  20. 71.
    Guy-Uriel E. Charles, “Colored Speech: Cross-Burnings, Epistemics, and the Triumph of the Crits”, Georgetown Law Review 93 (2005): 577.Google Scholar

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© Helen J. Knowles and Steven B. Lichtman 2015

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  • Steven B. Lichtman

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