contrasting concurrences of clarence thomas: deploying

Georgia State University Law ReviewVolume 26Issue 2 Winter 2009 Article 3

March 2012

Contrasting Concurrences of Clarence Thomas:Deploying Originalism and Paternalism inCommercial and Student Speech CasesMatthew D. Bunker

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Recommended CitationMatthew D. Bunker, Contrasting Concurrences of Clarence Thomas: Deploying Originalism and Paternalism in Commercial and StudentSpeech Cases, 26 Ga. St. U. L. Rev. (2012).Available at: https://readingroom.law.gsu.edu/gsulr/vol26/iss2/3

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CONTRASTING CONCURRENCES OF CLARENCETHOMAS: DEPLOYING ORIGINALISM AND

PATERNALISM IN COMMERCIAL AND STUDENTSPEECH CASES

Matthew D. Bunker* and Clay Calvert"

INTRODUCTION

"Whatever the reason, Justice Thomas has indeed become afree-speech defender. ,,

That's what First Amendment2 scholar David L. Hudson, Jr.3 wroteback in 2002 in the process of lauding United States Supreme CourtJustice Clarence Thomas as "an ardent defender of commercial free-speech rights" 4 and a "forceful advocate for commercial speech." 5

One of the key cases supporting Hudson's thesis and proposition is44 Liquormart, Inc. v. Rhode Island,6 in which Justice Thomasauthored a concurring opinion designed "to attack the Central

* Reese Phifer Professor of Journalism, College of Communication and Information Sciences,University of Alabama, Tuscaloosa, Alabama. B.S., 1979, Business Administration, Kansas StateUniversity; J.D., 1985, University of Kansas; Ph.D., 1993, Mass Communication, University of Florida.

** Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner FirstAmendment Project at the College of Journalism and Communications, University of Florida,Gainesville, Florida. Member, State Bar of California. The authors thank Patrick Hanifin and KatyHopkins of the Pennsylvania State University for reviewing early drafts of this article.

1. David L. Hudson, Jr., Justice Clarence Thomas: The Emergence of a Commercial-SpeechProtector, 35 CREIGHTON L. REV. 485, 486 (2002).

2. The First Amendment to the United States Constitution provides, in pertinent part, that"Congress shall make no law ... abridging the freedom of speech, or of the press .... " U.S. CONST.amend. I. The Free Speech and Free Press Clauses were incorporated more than eight decades agothrough the Fourteenth Amendment Due Process Clause to apply to state and local government entitiesand officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925).

3. See Biography: David L. Hudson, Jr., First Amendment Center Website,http://www.firstamendmentcenter.org/biography.aspx?name=Hudson (providing background on Hudsonand describing him, in relevant part, as "a scholar at the First Amendment Center. Hudson writes forfirstamendmentcenter.org and for other publications devoted to First Amendment issues. He is theauthor or co-author of [twenty] books, including several on the U.S. Supreme Court, the Constitutionand student rights.") (last visited Feb. 12, 2008).

4. Hudson, supra note 1, at 487.5. Id.6. 517 U.S. 484 (1996).

HeinOnline -- 26 Ga. St. U. L. Rev. 321 2009-2010

CONTRASTING CONCURRENCES OF CLARENCE THOMAS: DEPLOYING ORIGINALISM AND

PATERNALISM IN COMMERCIAL AND STUDENT SPEECH CASES

. ~

Matthew D. Bunker and Clay Calvert

INTRODUCTION

"Whatever the reason, Justice Thomas has indeed become a free-speech defender. ,,1

That's what First Amendmenr scholar David L. Hudson, Jr.3 wrote back in 2002 in the process of lauding United States Supreme Court Justice Clarence Thomas as "an ardent defender of commercial freespeech rights,,4 and a "forceful advocate for commercial speech.,,5 One of the key cases supporting Hudson's thesis and proposition is 44 Liquormart, Inc. v. Rhode Island,6 in which Justice Thomas authored a concurring opinion designed "to attack the Central

* Reese Phifer Professor of Journalism, College of Communication and Information Sciences, University of Alabama, Tuscaloosa, Alabama. B.S., 1979, Business Administration, Kansas State University; J.D., 1985, University of Kansas; Ph.D., 1993, Mass Communication, University of Florida.

.. Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the College of Journalism and Communications, University of Florida, Gainesville, Florida. Member, State Bar of California. The authors thank Patrick Hanifin and Katy Hopkins of the Pennsylvania State University for reviewing early drafts of this article.

1. David L. Hudson, Jr., Justice Clarence Thomas: The Emergence of a Commercial-Speech Protector, 35 CREIGHTON L. REv. 485, 486 (2002).

2. The First Amendment to the United States Constitution provides, in pertinent part, that "Congress shall make no law ... abridging the freedom of speech, or of the press .... " U.S. CONST. amend. I. The Free Speech and Free Press Clauses were incorporated more than eight decades ago through the Fourteenth Amendment Due Process Clause to apply to state and local government entities and officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925).

3. See Biography: David L. Hudson, Jr., First Amendment Center Website, http://www.flrStamendmentcenter.orglbiography.aspx?name=Hudson (providing background on Hudson and describing him, in relevant part, as "a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues. He is the author or co-author of [twenty] books, including several on the U.S. Supreme Court, the Constitution and student rights.") (last visited Feb. 12,2008).

4. Hudson, supra note I, at 487. 5. !d. 6. 517 U.S. 484 (1996).

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Bunker: Contrasting Concurrences of Clarence Thomas: Deploying Originali

Published by Reading Room, 2010

GEORGIA STATE UNIVERSITY LAW REVIEW

Hudson7 test and to advocate enhanced First Amendment status forcertain commercial speech."8 As Hudson put it, it was in JusticeThomas's concurrence in 44 Liquormart in which he "emerged as ahigh protector of commercial speech... .9 Hudson, who is not aloneamong legal scholars in praising Justice Thomas as a FirstAmendment advocate on issues like commercial speech, 10 concludedhis law review article by asserting that "Justice Thomas more andmore stakes out his claim as a Justice sensitive to First Amendmentclaims."''1

But just five years later, in June 2007 in Morse v. Frederick,12

Justice Thomas was calling for the end of all speech rights forstudents in public school settings, writing that "[i]n light of thehistory of American public education, it cannot seriously besuggested that the First Amendment 'freedom of speech'

7. This is a reference to the United States Supreme Court's opinion in Central Hudson Gas &Electric Corp. v. Pub. Serv. Comm 'n of New York, 447 U.S. 557 (1980). In Central Hudson, the highCourt created a four-part test for determining whether a restriction on commercial speech waspermissible under the First Amendment, writing that:

In commercial speech cases, then, a four-part analysis has developed. At the outset, wemust determine whether the expression is protected by the First Amendment. Forcommercial speech to come within that provision, it at least must concern lawful activityand not be misleading. Next, we ask whether the asserted governmental interest issubstantial. If both inquiries yield positive answers, we must determine whether theregulation directly advances the governmental interest asserted, and whether it is notmore extensive than is necessary to serve that interest.

Id. at 566.8. Arlen W. Langvardt, The Incremental Strengthening of First Amendment Protection for

Commercial Speech: Lessons from Greater New Orleans Broadcasting, 37 AM. BUS. L.J. 587, 621(2000).

9. Hudson, supra note I, at 496.10. Brooklyn Law School Professor Joel Gora, for instance, wrote in 2001 that:

Justice Thomas, along with Justice Kennedy, has turned out, in many instances, to bequite a vigorous proponent and supporter of free speech, particularly commercial speech.He takes the position that as long as the advertising is for a lawful product and it is notfalse or misleading, commercial speech should be judged by the same First Amendmentstandards as any other kind of speech. If the advertising is lawful and not fraudulent, theCourt should not engage in any of these diluted balancing tests. According to JusticeThomas, commercial speech should be assimilated into the First Amendment family, nottreated as a stepchild, and provided with full First Amendment protection.

Joel Gora, The Calm After the Storm: First Amendment Cases in the Supreme Court's 2000-2001 Term,18 TouRo L. REv. 29, 39 (2001) (footnotes omitted).

11. Hudson, supra note 1, at 501.12. 551 U.S. 393 (2007).

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322 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 26:2

Hudson7 test and to advocate enhanced First Amendment status for certain commercial speech."s As Hudson put it, it was in Justice Thomas's concurrence in 44 Liquormart in which he "emerged as a high protector of commercial speech .... ,,9 Hudson, who is not alone among legal scholars in praising Justice Thomas as a First Amendment advocate on issues like commercial speech,1O concluded his law review article by asserting that "Justice Thomas more and more stakes out his claim as a Justice sensitive to First Amendment claims.,,11

But just five years later, in June 2007 in Morse v. Frederick, 12 Justice Thomas was calling for the end of all speech rights for students in public school settings, writing that "[i]n light of the history of American public education, it cannot seriously be suggested that the First Amendment 'freedom of speech'

7. This is a reference to the United States Supreme Court's opinion in Central Hudson Gas & Electric Corp. v. Pub. Servo Comm'n of New York, 447 U.S. 557 (1980). In Central Hudson, the high Court created a four-part test for determining whether a restriction on commercial speech was permissible under the First Amendment, writing that:

In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Id. at 566. 8. Arlen W. Langvardt, The Incremental Strengthening of First Amendment Protection for

Commercial Speech: Lessons from Greater New Orleans Broadcasting, 37 AM. Bus. LJ. 587, 621 (2000).

9. Hudson, supra note I, at 496. 10. Brooklyn Law School Professor Joel Gora, for instance, wrote in 2001 that:

Justice Thomas, along with Justice Kennedy, has turned out, in many instances, to be quite a vigorous proponent and supporter of free speech, particularly commercial speech. He takes the position that as long as the advertising is for a lawful product and it is not false or misleading, commercial speech should be judged by the same First Amendment standards as any other kind of speech. If the advertising is lawful and not fraudulent, the Court should not engage in any of these diluted balancing tests. According to Justice Thomas, commercial speech should be assimilated into the First Amendment family, not treated as a stepchild, and provided with full First Amendment protection.

Joel Gora, The Calm After the Storm: First Amendment Cases in the Supreme Court's 2000-2001 Term, 18 TOURO L. REv. 29, 39 (2001) (footnotes omitted).

II. Hudson, supra note I, at 501. 12. 551 U.S. 393 (2007).

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Georgia State University Law Review, Vol. 26, Iss. 2 [2010], Art. 3

https://readingroom.law.gsu.edu/gsulr/vol26/iss2/3

2010] CONTRASTING CONCURRENCES OF CLARENCE THOMAS 323

encompasses a student's right to speak in public schools."' 3 JusticeThomas boldly proclaimed in Morse that, if given the opportunity, hegladly would "dispense with"'14 the United States Supreme Court'sseminal 1969 decision in Tinker v. Des Moines IndependentCommunity School District.15 In Tinker, the high court ruled thatexpression by public school students while on campus 16 is protectedby the First Amendment unless actual facts exist 7 that mightreasonably lead "school authorities to forecast substantial disruptionof or material interference with school activities . ,,18

There is, then, a jurisprudentially jarring contrast between JusticeThomas's desire to expand protection for commercial speech and toelevate advertisers up from the ranks of second-class FirstAmendment citizens, 19 on the one hand, and his simultaneousyearning to obliterate constitutional protection for the speech ofpublic school students and to relegate them to a constitutional status

13. Id. at 419 (Thomas, J., concurring).14. Id. at 422.15. 393 U.S. 503 (1969).16. Tinker centered around the black armbands worn on campus students to protest the war in

Vietnam, and the Court wrote that:A student's rights ... do not embrace merely the classroom hours. When he is in thecafeteria, or on the playing field, or on the campus during the authorized hours, he mayexpress his opinions, even on controversial subjects like the conflict in Vietnam, if hedoes so without "materially and substantially interfer[ing] with the requirements ofappropriate discipline in the operation of the school" and without colliding with the rightsof others.

Id. at 512-513 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966) (emphasis added)).17. The high Court made it clear that mere speculation of harm will not justify squelching student

speech rights, opining that an "undifferentiated fear or apprehension of disturbance is not enough toovercome the right to freedom of expression." Id at 508. What's more, the court in Tinker wrote that"[i]n order for the State in the person of school officials to justify prohibition of a particular expressionof opinion, it must be able to show that its action was caused by something more than a mere desire toavoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Id. at 509(emphasis added).

18. Id at 514.19. Cf Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REv. 767, 830 (2001) (writing

that commercial speech currently is "treated as a second-class First Amendment citizen").Other second-class First Amendment citizens include broadcasters, who hold reduced First Amendmentrights. See Donald E. Lively, The Information Superhighway: A First Amendment Roadmap, 35 B.C. L.REv. 1067, 1072 (1994) (describing "broadcasting's second-class First Amendment status") (footnoteomitted); Kathleen M. Sullivan, Free Speech Wars, 48 SMU L. REv. 203, 206 (1994) (observing that"over-the-air broadcasters . . . have long resented their treatment as second-class First Amendmentcitizens...") (footnote omitted).


2010) CONTRASTING CONCURRENCES OF CLARENCE THOMAS 323

encompasses a student's right to speak in public schools.,,13 Justice

Thomas boldly proclaimed in Morse that, if given the opportunity, he

gladly would "dispense with,,14 the United States Supreme Court's

seminal 1969 decision in Tinker v. Des Moines Independent Community School District. 15 In Tinker, the high court ruled that

expression by public school students while on campusl6

is protected

by the First Amendment unless actual facts existl7

that might

reasonably lead "school authorities to forecast substantial disruption

of or material interference with school activities .... ,,18

There is, then, a jurisprudentially jarring contrast between Justice

Thomas's desire to expand protection for commercial speech and to

elevate advertisers up from the ranks of second-class First

Amendment citizens,19 on the one hand, and his simultaneous

yearning to obliterate constitutional protection for the speech of

public school students and to relegate them to a constitutional status

13. Id. at 419 (Thomas, 1., concurring). 14. !d. at 422. 15. 393 U.S. 503 (1969). 16. Tinker centered around the black armbands worn on campus students to protest the war in

Vietnam, and the Court wrote that: A student's rights ... do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without "materially and substantially interfer{ing] with the requirements of appropriate discipline in the operation of the school" and without colliding with the rights of others.

Id. at 512-513 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. I 966)(emphasis added)). 17. The high Court made it clear that mere speculation of harm will not justify squelching student

speech rights, opining that an "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Id. at 508. What's more, the court in Tinker wrote that "[i]n order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Id. at 509 (emphasis added).

18. Id. at 514. 19. Cf Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REv. 767, 830 (2001) (writing

that commercial speech currently is "treated as a second-class First Amendment citizen"). Other second-class First Amendment citizens include broadcasters, who hold reduced First Amendment rights. See Donald E. Lively, The Information Superhighway: A First Amendment Roadmap, 35 B.C. L. REv. 1067, 1072 (1994) (describing "broadcasting's second-class First Amendment status") (footnote omitted); Kathleen M. Sullivan, Free Speech Wars, 48 SMU L. REv. 203, 206 (1994) (observing that "over-the-air broadcasters . . . have long resented their treatment as second-class First Amendment citizens ... ") (footnote omitted).

3




below that of federal prisoners, on the other. This incongruity isexacerbated by the fact that the realms of commercial speech andstudent speech share much in common.

First, both are relatively new developments and bodies of lawwithin the confines of First Amendment jurisprudence, withcommercial speech "not explicitly given constitutional protectionuntil 1976 ' '21 in Virginia State Board of Pharmacy v. CitizensConsumer Council, Inc.,22 and public school students not affordedsuch safeguards until 1969 in Tinker.2 3

Second, both areas also are still evolving and in a state of judicialferment. The Supreme Court, for instance, is gradually changing thelandscape of student speech rights by chipping away at Tinker overthe decades in a string of three straight defeats for student expressionthat carved out exceptions to Tinker's broad swath of First

24Amendment protection for student speech. Justice Thomas, of

20. The United States Supreme Court has observed that "[p]rison walls do not form a barrierseparating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84(1987) (emphasis added). Although prisoners have reduced constitutional ights, the high Courtnonetheless has held that "when a prison regulation impinges on inmates' constitutional rights, theregulation is valid if it is reasonably related to legitimate penological interests." Id. at 89; see also Shawv. Murphy, 532 U.S. 223, 229 (2001) (writing that inmates retain "certain protections of the FirstAmendment," although "the constitutional rights that prisoners possess are more limited in scope thanthe constitutional rights held by individuals in society at large").

21. DANIEL A. FARBER, THE FRsT AMENDMENT 151 (2d ed. 2003).22. 425 U.S. 748 (1976). In this case, the Supreme Court concluded that "commercial speech, like

other varieties, is protected .... Id. at 770. In reaching this conclusion, the high Court recognized the"consumer's interest in the free flow of commercial information .... Id. at 763. It also acknowledgedthat "society also may have a strong interest in the free flow of commercial information." Id. at 764.The Court, however, added that "untruthful" commercial speech was not protected by the FirstAmendment. Id. at 771. As the high court put it:

Obviously, much commercial speech is not provably false, or even wholly false, but onlydeceptive or misleading. We foresee no obstacle to a State's dealing effectively with thisproblem. The First Amendment, as we construe it today, does not prohibit the State frominsuring that the stream of commercial information flow cleanly as well as freely.

Id. at 771-772 (footnote omitted).23. See Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public

Schools As Mediating Structures, 48 OHIO ST. L.J. 663, 664 (1987) (writing that Tinker was the case "inwhich the Supreme Court first held that public school students are entitled to some forms of firstamendment protection").

24. See Morse v. Frederick, 551 U.S. 393, 396 (2007) (holding "that schools may take steps tosafeguard those entrusted to their care from speech that can reasonably be regarded as encouragingillegal drug use"); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (holding that"educators do not offend the First Amendment by exercising editorial control over the style and contentof student speech in school-sponsored expressive activities so long as their actions are reasonably related

[Vol. 26:2



below that of federal prisoners,20 on the other. This incongruity is

exacerbated by the fact that the realms of commercial speech and

student speech share much in common.

First, both are relatively new developments and bodies of law

within the confines of First Amendment jurisprudence, with

commercial speech "not explicitly given constitutional protection

until 1976,,21 in Virginia State Board of Pharmacy v. Citizens Consumer Council, Inc., 22 and public school students not afforded

such safeguards until 1969 in Tinker. 23

Second, both areas also are still evolving and in a state of judicial

ferment. The Supreme Court, for instance, is gradually changing the

landscape of student speech rights by chipping away at Tinker over

the decades in a string of three straight defeats for student expression

that carved out exceptions to Tinker's broad swath of First

Amendment protection for student speech.24 Justice Thomas, of

20. The United States Supreme Court has observed that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84 (1987) (emphasis added). Although prisoners have reduced constitutional rights, the high Court nonetheless has held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 89; see also Shaw v. Murphy, 532 U.S. 223, 229 (2001) (writing that inmates retain "certain protections of the First Amendment," although "the constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large").

21. DANIEL A. FARBER, THE FIRST AMENDMENT 151 (2d ed. 2003). 22. 425 U.S. 748 (1976). In this case, the Supreme Court concluded that "commercial speech, like

other varieties, is protected .... " Id at 770. In reaching this conclusion, the high Court recognized the "consumer's interest in the free flow of commercial information .... " Id at 763. It also acknowledged that "society also may have a strong interest in the free flow of commercial information." Id. at 764. The Court, however, added that "untruthful" commercial speech was not protected by the First Amendment. Id. at 771. As the high court put it:

Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State's dealing effectively with this problem. The First Amendment, as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely.

Id at 771-772 (footnote omitted). 23. See Bruce C. Hafen, Developing Student Expression Through Institutional AuthOrity: Public

Schools As Mediating Structures, 48 OHIO ST. L.J. 663, 664 (1987) (writing that Tinker was the case "in which the Supreme Court first held that public school students are entitled to some forms of first amendment protection").

24. See Morse v. Frederick, 551 U.S. 393, 396 (2007) (holding ''that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use"); Hazelwood Sch. Dist. v. Kuhlrneier, 484 U.S. 260, 273 (\988) (holding that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related

4



20101 CONTRASTING CONCURRENCES OF CLARENCE THOMAS 325

course, would radically end such censorial creep by overrulingTinker; there is no need for more nibbling away at Tinker underJustice Thomas's view-just get rid of the whole area of speechrights for students. Similarly, the domain of commercial speech isevolving and still unsettled, as evidenced by debate about the mostfundamental question in the area-namely, what constitutescommercial speech?25 As Robert O'Neil, professor of law anddirector of the Thomas Jefferson Center for the Protection of FreeExpression at the University of Virginia, wrote in 2004:

It has been clear since the mid 1970s that we lack a reliabledefinition of "commercial speech." One cannot even say, withJustice Stewart's intuitive confidence about obscenity, "I know itwhen I see it." All we understand with reasonable certainty is theoutcome of relatively easy cases at the margins.26

to legitimate pedagogical concerns") (footnote omitted); Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 683-85 (1986) (allowing schools to punish and prohibit the use of "vulgar and offensive terms in publicdiscourse" because allowance of such speech would "undermine the school's basic educationalmission").

25. Several professors have written about this definitional difficulty. See Robert Post, TheConstitutional Status of Commercial Speech, 48 UCLA L. REv. 1, 5 (2000) (observing that "sometimesadvertising is deemed to be public discourse rather than commercial speech, and sometimes expressionthat would not ordinarily be regarded as advertising is included within the category of commercialspeech. The boundaries of the category are thus quite blurred."); Martin H. Redish, Commercial Speech,First Amendment Intuitionism and the Twilight Zone of Viewpoint Discrimination, 41 LOY. L.A. L. REv.67, 74 (writing that "the Supreme Court has cryptically offered a number of different-and not alwaysconsistent-definitions of commercial speech") (footnote omitted); Samuel A. Terilli, Nike v. Kaskyand the Running-But-Going-Nowhere Commercial Speech Debate, 10 CoMM. L. & POL'Y 383, 386(2005) (arguing that there is an "absence of any meaningful consensus regarding what is or is notcommercial speech or how it ought to be treated" and asserting that "the commercial speech doctrine hasbecome a linguistic quagmire for speakers with commercial interests and for speech that may or may notbe deemed commercial") (footnote omitted); Robert Post, The Constitutional Status of CommercialSpeech, 48 UCLA L. REv. 1, 5 (2000) (observing that "sometimes advertising is deemed to be publicdiscourse rather than commercial speech, and sometimes expression that would not ordinarily beregarded as advertising is included within the category of commercial speech. The boundaries of thecategory are thus quite blurred.").

26. Robert M. O'Neil, Nike v. Kasky-What Might Have Been..., 54 CASE W. RES. L. REv. 1259,1262 (2004). The reference in this quotation by O'Neil to Justice Potter Stewart regards his comments inJacobellis v. Ohio, 378 U.S. 184 (1964), that attempting to explicate the concept of obscenity amountsto "trying to define what may be indefinable" and:

that under the First and Fourteenth Amendments criminal laws in this area areconstitutionally limited to hard-core pornography. I shall not today attempt further todefine the kinds of material I understand to be embraced within that shorthand


2010) CONTRASTING CONCURRENCES OF CLARENCE mOMAS 325

course, would radically end such censorial creep by overruling Tinker; there is no need for more nibbling away at Tinker under Justice Thomas's view-just get rid of the whole area of speech rights for students. Similarly, the domain of commercial speech is evolving and still unsettled, as evidenced by debate about the most fundamental question in the area-namely, what constitutes commercial speech?25 As Robert O'Neil, professor of law and director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, wrote in 2004:

It has been clear since the mid 1970s that we lack a reliable defmition of "commercial speech." One cannot even say, with Justice Stewart's intuitive confidence about obscenity, "I know it when I see it." All we understand with reasonable certainty is the outcome of relatively easy cases at the margins.26

to legitimate pedagogical concerns") (footnote omitted); Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 683-85 (1986) (allowing schools to punish and prohibit the use of "vulgar and offensive terms in public discourse" because allowance of such speech would "undermine the school's basic educational mission").

25. Several professors have written about this definitional difficulty. See Robert Post, The Constitutional Status o/Commercial Speech, 48 UCLA L. REv. 1,5 (2000) (observing that "sometimes advertising is deemed to be public discourse rather than commercial speech, and sometimes expression that would not ordinarily be regarded as advertising is included within the category of commercial speech. The boundaries of the category are thus quite blurred."); Martin H. Redish, Commercial Speech. First Amendment Intuitionism and the Twilight Zone o/Viewpoint Discrimination, 41 LoY. L.A. L. REv. 67, 74 (writing that "the Supreme Court has cryptically offered a number of different-and not always consistent-definitions of commercial speech") (footnote omitted); Samuel A. Terilli, Nike v. Kasky and the Running-But-Going-Nowhere Commercial Speech Debate, 10 COMM. L. & POL'y 383, 386 (2005) (arguing that there is an "absence of any meaningful consensus regarding what is or is not commercial speech or how it ought to be treated" and asserting that "the commercial speech doctrine has become a linguistic quagmire for speakers with commercial interests and for speech that mayor may not be deemed commercial") (footnote omitted); Robert Post, The Constitutional Status 0/ Commercial Speech, 48 UCLA L. REv. I, 5 (2000) (observing that "sometimes advertising is deemed to be public discourse rather than commercial speech, and sometimes expression that would not ordinarily be regarded as advertising is included within the category of commercial speech. The boundaries of the category are thus quite blurred. ").

26. Robert M. O'Neil, Nike v. Kasky-What Might Have Been . .. ,54 CASE W. REs. L. REv. 1259, 1262 (2004). The reference in this quotation by O'Neil to Justice Potter Stewart regards his comments in Jacobellis v. Ohio, 378 U.S. 184 (1964), that attempting to explicate the concept of obscenity amounts to ''trying to define what may be indefinable" and:

that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand

5




Finally, both realms of law are similar in that commercialadvertisers and public school students, although safeguarded by theFirst Amendment, receive less protection than other speakers. Forinstance, one federal appellate court recently observed that "otherforms of expression are entitled to more protection under the FirstAmendment than is commercial speech., 27 Indeed, Professor TamaraR. Piety wrote in 2007 that "the commercial speech doctrine creates acategory of speech subject to intermediate scrutiny under the FirstAmendment, ' ,2 8 as opposed to the much more rigorous strict scrutinystandard to which content-based regulations on speech are usuallysubjected. 29 The United States Supreme Court itself hasacknowledged that it has "afforded commercial speech a limitedmeasure of protection, commensurate with its subordinate position inthe scale of First Amendment values, while allowing modes ofregulation that might be impermissible in the realm ofnoncommercial expression. 30

Similarly, the Supreme Court made it clear in Bethel SchoolDistrict v. Fraser31 that "the constitutional rights of students in publicschool are not automatically coextensive with the rights of adults inother settings. 32 It reaffirmed this principle in 2007 in Morse v.Frederick.

33

description; and perhaps I could never succeed in intelligibly doing so. But I know itwhen Isee it, and the motion picture involved in this case is not that.

Id. at 197 (Stewart, J., concurring) (emphasis added) (footnote omitted).27. Pagan v. Fruchey, 492 F.3d 766, 770 (6th Cir. 2007), cert. denied, 128 S. Ct. 7111 (2007).28. Tamara R. Piety, Market Failure in the Marketplace of Ideas: Commercial Speech and the

Problem that Won't Go Away, 41 LOY. L.A. L. REV. 181, 182 (2007).29. See United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000) (writing that a

"content-based speech restriction" is permissible "only if it satisfies strict scrutiny," which requires thatthe law in question "be narrowly tailored to promote a compelling Government interest"); Sable Comm.of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (writing that the government may "regulate the content ofconstitutionally protected speech in order to promote a compelling interest if it chooses the leastrestrictive means to further the articulated interest"). See generally ERWIN CHEMERINSKY,CONSTIuTIONAL LAW: PRINCIPLES AND POLICIES 903 (2d ed. 2002) (writing that "content-baseddiscrimination must meet strict scrutiny").

30. Ohralik v. Ohio State Bar Assn., 436 U.S. 447,456 (1978).31. 478 U.S. 675 (1986).32. Id. at 682.33. 551 U.S. 393, 403-04 (2007).

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326 GEORGIA STATE UNIVERSITY LAW REVIEW (Vol. 26:2

Finally, both realms of law are similar in that commercial advertisers and public school students, although safeguarded by the First Amendment, receive less protection than other speakers. For instance, one federal appellate court recently observed that "other forms of expression are entitled to more protection under the First Amendment than is commercial speech.'.27 Indeed, Professor Tamara R. Piety wrote in 2007 that "the commercial speech doctrine creates a category of speech subject to intermediate scrutiny under the First Amendment,,,28 as opposed to the much more rigorous strict scrutiny standard to which content-based regulations on speech are usually subjected.29 The United States Supreme Court itself has acknowledged that it has "afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression. ,,30

Similarly, the Supreme Court made it clear in Bethel School District v. Fraser31 that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings. ,,32 It reaffirmed this principle in 2007 in Morse v. Frederick. 33

description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Id. at 197 (Stewart, J., concurring) (emphasis added) (footnote omitted). 27. Pagan v. Fruchey, 492 F.3d 766, 770 (6th Cir. 2007), cert. denied, 128 S. Ct. 7111 (2007). 28. Tamara R. Piety, Market Failure in the Marketplace of Ideas: Commercial Speech and the

Problem that Won't Go Away, 41 loY. L.A. L. REv. 181, 182 (2007). 29. See United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000) (writing that a

"content-based speech restriction" is permissible "only if it satisfies strict scrutiny," which requires that the law in question "be narrowly tailored to promote a compelling Government interest"); Sable Comm. of Cal., Inc. V. FCC, 492 U.S. 115, 126 (1989) (writing that the government may "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest"). See generally ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 903 (2d ed. 2002) (writing that "content-based discrimination must meet strict scrutiny").

30. Ohralik V. Ohio State Bar Assn., 436 U.S. 447,456 (1978). 31. 478 U.S. 675 (1986). 32. Id. at 682. 33. 551 U.S. 393, 403~ (2007).

6




With this trio of similarities-a new area of law, still evolving andfermenting, and providing reduced First Amendment protection-inmind, the question arises: How did Justice Thomas reach seeminglydiametrically opposed conclusions about the scope of-indeed, thevery existence of, in the case of public school students-FirstAmendment rights in 44 Liquormart and Morse?

This article analyzes this issue and, in particular, Justice Thomas'scontrasting concurrences in 44 Liquormart and Morse, through thelens of two concepts: originalism and paternalism. These concepts areemployed for different reasons. With regard to the former, JusticeThomas has been "conventionally tagged as 'originalist,"' 34 asProfessors Eric Posner and Adrian Vermeule recently observed.What's more, in a 2007 law journal article that analyzed andcompared multiple opinions over a fifteen-year period by both JusticeThomas and Justice Antonin Scalia, Professor Bradley Jacobconcluded that, of the two conservative justices, Thomas is "the RealOriginalist." 35 Perhaps more importantly, as illustrated later in Part IIof this article, Justice Thomas's use of originalism in Morse to justifyabolishing an entire body of constitutional law on student-speechrights reflects what Professor James E. Fleming describes as ahallmark of originalism, namely that the "original meaning of theConstitution may trump judicial doctrine of constitutional law at anytime."

,3 6

The concept of paternalism and, in particular, the governmentadopting a paternalistic, we-know-what-is-best-for-you role in itsdecision to regulate and restrict speech is a particularly relevant toolof analysis for dissecting Justice Thomas's views on both commercialspeech and student speech. On the commercial speech front, theconcept is critical. Professor Daniel Hays Lowenstein observes that"when the Supreme Court extended constitutional protection to

34. Eric A. Posner & Adrian Vermeule, Originalism and Emergencies: A Reply to Lawson, 87 B.U.L. REv. 313, 319 (2007).

35. Bradley P. Jacob, Will the Real Constitutional Originalist Please Stand Up?, 40 CREIGHTON L.REv. 595,650 (2007).

36. James E. Fleming, Rewriting Brown, Resurrecting Plessy, 52 ST. Louis U. L.J. 1141, 1151(2007).



With this trio of similarities-a new area of law, still evolving and fennenting, and providing reduced First Amendment protection-in mind, the question arises: How did Justice Thomas reach seemingly diametrically opposed conclusions about the scope of-indeed, the very existence of, in the case of public school students-First Amendment rights in 44 Liquormart and Morse?

This article analyzes this issue and, in particular, Justice Thomas's contrasting concurrences in 44 Liquormart and Morse, through the lens of two concepts: originalism and paternalism. These concepts are employed for different reasons. With regard to the fonner, Justice Thomas has been "conventionally tagged as 'originalist,,,,34 as Professors Eric Posner and Adrian Venneule recently observed. What's more, in a 2007 law journal article that analyzed and compared multiple opinions over a fifteen-year period by both Justice Thomas and Justice Antonin Scalia, Professor Bradley Jacob concluded that, of the two conservative justices, Thomas is "the Real Originalist.,,35 Perhaps more importantly, as illustrated later in Part II of this article, Justice Thomas's use of originalism in Morse to justify abolishing an entire body of constitutional law on student-speech rights reflects what Professor James E. Fleming describes as a hallmark of originalism, namely that the "original meaning of the Constitution may trump judicial doctrine of constitutional law at any time.,,36

The concept of paternalism and, in particular, the government adopting a paternalistic, we-know-what-is-best-for-you role in its decision to regulate and restrict speech is a particularly relevant tool of analysis for dissecting Justice Thomas's views on both commercial speech and student speech. On the commercial speech front, the concept is critical. Professor Daniel Hays Lowenstein observes that "when the Supreme Court extended constitutional protection to

34. Eric A. Posner & Adrian Vermeule, Originalism and Emergencies: A Reply to Lawson, 87 B.U. L. REv. 313, 319 (2007).

35. Bradley P. Jacob, Will the Real Constitutional Originalist Please Stand Up?, 40 CREIGHTON L. REv. 595,650 (2007).

36. James E. Fleming, Rewriting Brown. Resurrecting Plessy, 52 ST. loUIS U. LJ. 1141, 1151 (2007).

7




commercial speech in Virginia Pharmacy,37 it did so in the name ofrejecting paternalism,"38 which he asserts refers to "speechrestrictions intended to protect the consumer against his or her ownimprudent action." 39 As Rodney Smolla, current dean of theWashington and Lee University School of Law, wrote in 2006:

The arc of the Supreme Court's commercial speech decisions inrecent years has been unmistakable: in case after case the Courthas enforced the First Amendment protections set forth inCentral Hudson with increasing rigor, expanding protection forcommercial speech, and expressing ever-heightening skepticismand impatience for governmental restrictions on advertisinggrounded in protectionism and paternalism.40

Yet when it comes to free speech in public schools, as this articlecontends in Part II, Justice Thomas is extremely paternalistic in hisviews, asserting the primacy of the government's in loco parentisrole as a tool for censorship.4' In addition, paternalism is a concept onwhich Justice Thomas has expressed views in other constitutionalcontexts, including race-based preferences. 42 It thus provides aparticularly relevant variable for analyzing his opinions on bothstudent speech and commercial advertising.

With this in mind, Part I of the article provides an overview ofwhat the authors mean by both originalism (in Section A) and

37. Virginia State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976).38. Daniel Hays Lowenstein, "Too Much Puff"-: Persuasion, Paternalism, and Commercial Speech,

56 U. ON. L. REv. 1205, 1237 (1988) (emphasis added).39. Id. at 1238.40. Rodney A. Smolla, Lawyer Advertising and the Dignity of the Profession, 59 ARK. L. REV. 437,

452 (2006) (emphasis added).41. See Kenneth W. Starr, Our Libertarian Court: Bong Hits and the Enduring Hamiltonian-

Jeffersonian Colloquy, 12 LEwis & CLARK L. REv. 1, 4 (2008) (referring in Morse, 551 U.S. 393, towhat Starr calls "Justice Thomas' [sic] in locoparentis argument").

42. For instance, Justice Thomas has opined against what he calls "a racial paternalism exception tothe principle of equal protection." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (1995)(Thomas, J., concurring) (emphasis added). In blasting a race-based preference program, Thomas wrotethat "the paternalism that appears to lie at the heart of this program is at war with the principle ofinherent equality that underlies and infuses our Constitution." Id. (emphasis added).

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commercial speech in Virginia Pharmacy,37 it did so in the name of rejecting paternalism,,,38 which he asserts refers to "speech restrictions intended to protect the consumer against his or her own imprudent action.,,39 As Rodney Smolla, current dean of the Washington and Lee University School of Law, wrote in 2006:

The arc of the Supreme Court's commercial speech decisions in recent years has been unmistakable: in case after case the Court has enforced the First Amendment protections set forth in Central Hudson with increasing rigor, expanding protection for commercial speech, and expressing ever-heightening skepticism and impatience for governmental restrictions on advertising grounded in protectionism and paternalism.40

Yet when it comes to free speech in public schools, as this article contends in Part II, Justice Thomas is extremely paternalistic in his views, asserting the primacy of the government's in loco parentis role as a tool for censorship.41 In addition, paternalism is a concept on which Justice Thomas has expressed views in other constitutional contexts, including race-based preferences.42 It thus provides a particularly relevant variable for analyzing his opinions on both student speech and commercial advertising.

With this in mind, Part I of the article provides an overview of what the authors mean by both originalism (in Section A) and

37. Virginia State Bd. ofPhann. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976). 38. Daniel Hays Lowenstein, "Too Much Puff": Persuasion, Paternalism, and Commercial Speech,

56 U. CIN. L. REv. 1205, 1237 (1988) (emphasis added). 39. Id. at 1238. 40. Rodney A. Smolla, Lawyer Advertising and the Dignity of the Profession, 59 ARK. L. REv. 437,

452 (2006) (emphasis added). 41. See Kenneth W. Starr, Our Libertarian Court: Bong Hits and the Enduring Hamiltonian

Jeffersonian Colloquy, 12 LEWIS & CLARK L. REv. 1,4 (2008) (referring in Morse, 551 U.S. 393, to what Starr calls "Justice Thomas' [sic] in loco parentis argument").

42. For instance, Justice Thomas has opined against what he calls "a racial paternalism exception to the principle of equal protection." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (\995) (Thomas, J., concurring) (emphasis added). In blasting a race-based preference program, Thomas wrote that "the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution." Id. (emphasis added).

8




paternalism (in Section B).43 Part II then applies these two conceptsas tools to analyze and critique Justice Thomas's opinions in bothMorse and 44 Liquornart.44 Finally, the conclusion proposes thatJustice Thomas not only is inconsistent in his treatment of the pair ofconcepts described in Part I, but that reconciliation of his decisions inthese areas may not be as easy as it initially seems.4 5

I. ORIGINALISM AND PATERNALISM: AN OVERVIEW OF KEY

VARIABLES IN JUSTICE THOMAS'S OPINIONS AFFECTING STUDENT

SPEECH AND COMMERCIAL ADVERTISING

Section A of this part of the article provides background on theconcept of originalism. Section B then describes paternalism as thatword is used here by the authors. These sections are not intended tobe comprehensive examinations of these concepts, but rather serve asa brief overview or literature review, as it were, of them.

A. Originalism

Originalism, a mode of constitutional interpretation46 "widelythought of as conservative,"'47 is contentious and contested. 48 Apivotal point in modem debate over originalism, in one form49 called

43. See infra notes 46-117 and accompanying text.44. See infra notes 118-175 and accompanying text.45. See infra notes 176-186 and accompanying text.46. See generally PHILIP BOBBITr, CONSTITUTIONAL INTERPRETATION 12-13 (1991) (providing an

overview of modes of constitutional interpretation and identifying dominant "modalities" as historical,textual, structural, doctrinal, ethical, and prudential).

47. Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and EveryoneElse, 83 N.Y.U. L. REv. 769, 775 (2008).

48. Describing the roots of the modern debate about originalism, Professor Peter J. Smith writes:After the New Deal, the Warren Court was alternately accused of ignoring the originalmeaning of the Constitution .... The Warren Court's perceived excesses led to the riseof the modem originalists, and the debate over originalism dominated not only theacademic literature but also political debates over judicial nominations in the 1980s.

Peter J. Smith, Sources of Federalism: An Empirical Analysis of the Court's Quest for OriginalMeaning, 52 UCLA L. REV. 217, 233 (2004) (footnotes omitted).

49. "Originalism 'comes in several versions."' Steven D. Smith, Law Without Mind, 88 MICH. L.REv. 104, 105 (1989).



paternalism (in Section B).43 Part II then applies these two concepts as tools to analyze and critique Justice Thomas's opinions in both Morse and 44 Liquormart.44 Finally, the conclusion proposes that Justice Thomas not only is inconsistent in his treatment of the pair of concepts described in Part I, but that reconciliation of his decisions in these areas may not be as easy as it initially seems.45

I. ORIGINALISM AND PATERNALISM: AN OVERVIEW OF KEy VARIABLES IN JUSTICE THOMAS'S OPINIONS AFFECTING STUDENT

SPEECH AND COMMERCIAL ADVERTISING

Section A of this part of the article provides background on the concept of originalism. Section B then describes paternalism as that word is used here by the authors. These sections are not intended to be comprehensive examinations of these concepts, but rather serve as a brief overview or literature review, as it were, ofthem.

A. Originalism

Originalism, a mode of constitutional interpretation46 "widely thought of as conservative,'.47 is contentious and contested.48 A pivotal point in modem debate over originalism, in one form49 called

43. See infra notes 46-117 and accompanying text. 44. See infra notes 118-175 and accompanying text. 45. See infra notes 176-186 and accompanying text. 46. See generally PHILIP BOBBm, CONSTITUTIONAL INTERPRETATION 12-13 (1991) (providing an

overview of modes of constitutional interpretation and identifYing dominant "modalities" as historical, textual, structural, doctrinal, ethical, and prudential).

47. Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 N.Y.U. L. REv. 769, 775 (2008).

48. Describing the roots of the modem debate about originalism, Professor Peter J. Smith writes: After the New Deal, the Warren Court was alternately accused of ignoring the original meaning of the Constitution .... The Warren Court's perceived excesses led to the rise of the modem originalists, and the debate over originalism dominated not only the academic literature but also political debates over judicial nominations in the 1980s.

Peter J. Smith, Sources of Federalism: An Empirical Analysis of the Court's Quest for Original Meaning, 52 UCLA L. REv. 217,233 (2004) (footnotes omitted).

49. "Originalism 'comes in several versions.'" Steven D. Smith, Law Without Mind, 88 MICH. L. REv. 104, \05 (1989).

9




"intentionalism,'5° was a 1985 speech by U.S. Attorney GeneralEdwin Meese, when he advocated a "jurisprudence of originalintention." 51 Meese argued that other approaches simply allowedjurists to substitute personal ideological preferences for the legitimatestrictures of the Constitution. He stressed that the framers choselanguage that "meant something. It is incumbent upon the Court todetermine what that meaning was. This is not a shockingly newtheory; nor is it arcane or archaic. 52 Meese's speech put an academicdebate about originalism "into noisy and public view." 53

Within months, Justice William J. Brennan, Jr., an influentialmember of the high court under Chief Justice Earl Warren, respondedwith arguments that remain weapons in the anti-originalists' arsenal.Noting that the text of the Constitution is unclear and thus requiresinterpretation, Brennan called efforts to anchor its meaning in itsauthors' intentions "little more than arrogance cloaked as humility. Itis arrogant to pretend that from our vantage we can gauge accuratelythe intent of the Framers on application of principles to specific,contemporary questions." 54 He pointed out that records from theframing period, such as ratification debates, established bothconsiderable ambiguity and disagreement about the scope andmeaning of various provisions of the Constitution.55

Justice Brennan also argued that although "this facilehistoricism ' 56 presented itself as apolitical, it actually was fraughtwith political implications. "A position that upholds constitutionalclaims only if they were within the specific contemplation of theFramers in effect establishes a presumption of resolving textual

50. See, e.g., Robert Bennett, Originalist Theories of Constitutional Interpretation, 73 CORNELL L.REv. 355, 355 (1988) (describing intentionalism as "the kind of originalism" that adopts "the notion thatcontemporary constitutional questions are to be answered by reference to the intentions of thoseresponsible for putting the provision in question on the books").

51. Edwin Meese, HI, Speech Before the American Bar Association 53, in ORIGINALISM: AQUARTER-CENTURY OF DEBATE (Steven G. Calabresi ed. 2007).

52. Id53. Steven G. Calabresi, A Critical Introduction to the Originalism Debate, 31 HARV. J.L. & PUB.

POL'Y 875, 875 (2008).54. Justice William J. Brennan, Jr., Speech to the Text and Teaching Symposium 58, in

ORIGINALISM: A QUARTER-CENTURY OF DEBATE (Steven G. Calabresi ed. 2007).55. Id. at 59.56. Id.

[Vol 26:2



"intentionalism,,,50 was a 1985 speech by u.s. Attorney General Edwin Meese, when he advocated a "jurisprudence of original intention.,,51 Meese argued that other approaches simply allowed jurists to substitute personal ideological preferences for the legitimate strictures of the Constitution. He stressed that the framers chose language that "meant something. It is incumbent upon the Court to determine what that meaning was. This is not a shockingly new theory; nor is it arcane or archaic.,,52 Meese's speech put an academic debate about original ism "into noisy and public view.,,53

Within months, Justice William J. Brennan, Jr., an influential member of the high court under Chief Justice Earl Warren, responded with arguments that remain weapons in the anti-originalists' arsenal. Noting that the text of the Constitution is unclear and thus requires interpretation, Brennan called efforts to anchor its meaning in its authors' intentions "little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principles to specific, contemporary questions. ,,54 He pointed out that records from the framing period, such as ratification debates, established both considerable ambiguity and disagreement about the scope and meaning of various provisions of the Constitution. 55

Justice Brennan also argued that although "this facile historicism,,56 presented itself as apolitical, it actually was fraught with political implications. "A position that upholds constitutional claims only if they were within the specific contemplation of the Framers in effect establishes a presumption of resolving textual

50. See, e.g., Robert Bennett, Originalist Theories of Constitutional Interpretation, 73 CORNELL L. REv. 355,355 (1988) (describing intentionalism as ''the kind of original ism" that adopts ''the notion that contemporary constitutional questions are to be answered by reference to the intentions of those responsible for putting the provision in question on the books").

51. Edwin Meese, m, Speech Before the American Bar Association 53, in ORIGINALISM: A QUARTER-CENTURY OF DEBATE (Steven G. Calabresi ed. 2007).

52. Id. 53. Steven G. Calabresi, A Critical Introduction to the Origina/ism Debate, 31 HARv. J.L. & PUB.

POL'y 875, 875 (2008). 54. Justice William J. Brennan, Jr., Speech to the Text and Teaching Symposium 58, in

ORIGINALISM: A QUARTER-CENTURY OF DEBATE (Steven G. Calabresi ed. 2007). 55. Id. at 59. 56. !d.

10




ambiguities against the claim of constitutional right,"57 JusticeBrennan said. "It is far from clear what justifies this presumptionagainst claims of right.",58 He stated that the fundamental principlesthe Constitution enshrines are, and should be, broader than thespecific circumstances that gave rise to them in the Colonial period.59

"Our acceptance of the fundamental principles has not and should notbind us to those precise, at times anachronistic, contours," 60 he said.

As the originalism movement grew, there were successiveiterations of its fundamental approach, each drawing scholarly fire.After a period of focusing on the intent of the Framers, originalistsmoved toward what Larry Kramer, current dean of Stanford LawSchool, calls "original-understanding originalism." 61 This versionrecognized that the Constitution's framers had no actual lawmakingauthority and that the critical intent was thus not that of the drafters,but rather that of the ratifiers, who possessed the power to make itlaw. As Kramer points out, this move increased the range ofhistorical materials from the founding period that addressedconstitutional meaning, but it also vastly expanded the range ofopinions.62 Such problems with original-understanding originalismeventually led to a third version-the one generally practiced today-that Kramer calls "public-meaning originalism." 63 He suggests thatthis version too is subject to a devastating critique, namely "that therewas no agreed upon public meaning of the constitutional terms mostoften in dispute. This was something the Founding generation learnedto its dismay early in the 1790s." 64 Regardless of which version oforiginalism to which one subscribes, at the core of the concept, asProfessor Robert W. Bennett recently put it, "is the view that the

57. Id.58. Id.59. Id.60. Brennan, supra note 54, at 61.61. Larry Kramer, Panel on Originalism and Pragmatism 153, in ORIGINALISM: A QUARTER-

CENTURY OF DEBATE (Steven G. Calabresi ed. 2007).62. See id. (writing that "[the] indeterminacy argument became stronger, as indeterminacy is

obviously a greater concern when you expand the number of people whose views count from the smallgroup of fifty-five in Philadelphia to include everybody who voted on the Constitution").

63. Id at 154.64. Id. at 154.



ambiguities against the claim of constitutional right,,,57 Justice Brennan said. "It is far from clear what justifies this presumption against claims of right.,,58 He stated that the fundamental principles the Constitution enshrines are, and should be, broader than the specific circumstances that gave rise to them in the Colonial period.59

"Our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours,,,60 he said.

As the originalism movement grew, there were successive iterations of its fundamental approach, each drawing scholarly fire. After a period of focusing on the intent of the Framers, originalists moved toward what Larry Kramer, current dean of Stanford Law School, calls "original-understanding originalism.,,61 This version recognized that the Constitution's framers had no actual lawmaking authority and that the critical intent was thus not that of the drafters, but rather that of the ratifiers, who possessed the power to make it law. As Kramer points out, this move increased the range of historical materials from the founding period that addressed constitutional meaning, but it also vastly expanded the range of opinions.62 Such problems with original-understanding originalism eventually led to a third version-the one generally practiced todaythat Kramer calls "public-meaning originalism.,,63 He suggests that this version too is subject to a devastating critique, namely "that there was no agreed upon public meaning of the constitutional terms most often in dispute. This was something the Founding generation learned to its dismay early in the 1790s.,,64 Regardless of which version of originalism to which one subscribes, at the core of the concept, as Professor Robert w. Bennett recently put it, "is the view that the

57. [d. 58. [d. 59. [d. 60. Brennan, supra note 54, at 61. 61. Larry Kramer, Panel on Originalism and Pragmatism 153, in ORIGINALlSM: A QUARTER

CENTURY OF DEBATE (Steven G. Calabresi ed. 2007). 62. See id. (writing that "[the] indeterminacy argument became stronger, as indeterminacy is

obviously a greater concern when you expand the number of people whose views count from the small group of fifty-five in Philadelphia to include everybody who voted on the Constitution").

63. [d. at 154. 64. [d. at 154.

11




appropriate guideposts for constitutional interpretation are 'original'ones, sources that probe constitutional 'meaning' by reference to themeaning entertaified by the people around at the time the Constitutionwas enacted. 65

Any version of originalism, however, faces multiplemethodological challenges. One suggests that those of the foundinggeneration were not themselves originalists in interpretiveorientation. 66 H. Jefferson Powell, for example, argues that "[o]f thenumerous hermeneutical options that were available in the framers'day-among them, the renunciation of construction altogether-nonecorresponds to the modem notion of intentionalism." 67 Moreover,judges of the late eighteenth century routinely looked well beyond thebounds of written constitutions in protecting the rights of citizens; aslegal scholar Suzanna Sherry put it, "[a]s Bolingbroke proposed intheory and the new American states translated into action, judgeswere to look to natural law and the inherent rights of man, as well asto the written constitution, in determining the validity of a statute."68

If indeed the Constitution and Bill of Rights were created in such alegal environment, it is very difficult to argue that, normatively,originalism of any stripe is the required and exclusive interpretivemethod.

In the realm of the First Amendment Free Speech and PressClauses, the problems with originalism are, if anything, magnified.One difficulty is that, for at least some members of the framinggeneration, the contemporary understanding of the free speechprinciple was derived from English law via the enormouslyinfluential commentator William Blackstone. Blackstone, "the oracleof the common law in the minds of the American Framers, ' 69 as

65. Robert W. Bennett, Originalism: Lessons from Things That Go Without Saying, 45 SAN DIEGOL. REV. 645, 646 (2008).

66. See Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of "ThisConstitution", 72 IOWA L. REV. 1177, 1184 (1987) (describing "the recent attempt by nonoriginalists todemonstrate that originalism was not intended by the framers-an effort to hoist the originalists by theirown petard") (footnote omitted).

67. H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 948(1985).

68. Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L. REV. 1127, 1145 (1987).69. LEONARD W. LEVY, EMERGENCE OF A FREE PRESS 12 (1985).

[Vol. 26:2



appropriate guideposts for constitutional interpretation are 'original' ones, sources that probe constitutional 'meaning' by reference to the meaning entertained by the people around at the time the Constitution was enacted. ,,65

Any version of originalism, however, faces multiple methodological challenges. One suggests that those of the founding generation were not themselves originalists in interpretive orientation.66 H. Jefferson Powell, for example, argues that "[o]f the numerous hermeneutical options that were available in the framers' day-among them, the renunciation of construction altogether-none corresponds to the modem notion of intentionalism.,,67 Moreover, judges of the late eighteenth century routinely looked well beyond the bounds of written constitutions in protecting the rights of citizens; as legal scholar Suzanna Sherry put it, "[a]s Bolingbroke proposed in theory and the new American states translated into action, judges were to look to natural law and the inherent rights of man, as well as to the written constitution, in determining the validity of a statute.,,68 If indeed the Constitution and Bill of Rights were created in such a legal environment, it is very difficult to argue that, normatively, original ism of any stripe is the required and exclusive interpretive method.

In the realm of the First Amendment Free Speech and Press Clauses, the problems with originalism are, if anything, magnified. One difficulty is that, for at least some members of the framing generation, the contemporary understanding of the free speech principle was derived from English law via the enormously influential commentator William Blackstone. Blackstone, "the oracle of the common law in the minds of the American Framers,,,69 as

65. Robert W. Bennett, Originalism: Lessons from Things That Go Without Saying, 45 SAN DIEGO L. REv. 645, 646 (2008).

66. See Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of "This Constitution ", 72 IOWA L. REv. 1177, 1184 (1987) (describing "the recent attempt by nonoriginalists to demonstrate that originalism was not intended by the framers-an effort to hoist the originalists by their own petard") (footnote omitted).

67. H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARv. L. REv. 885,948 (1985).

68. Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L. REv. 1127,1145 (1987). 69. LEONARD W. LEVY, EMERGENCE OF A FREE PREss 12 (1985).

12




historian Leonard Levy put it, had opined that freedom of the pressconsisted of the absence of prior restraints on the press, but not theabsence of criminal or other sanctions after publication: "Everyfreeman has an undoubted right to lay what sentiments he pleasesbefore the public; to forbid this is to destroy freedom of the press; butif he publishes what is improper, mischievous, or illegal, he must takethe consequences of his own temerity., 70 Levy cites influentialframer and legal expert James Wilson of Pennsylvania, for example,adopting the Blackstonian position at the Pennsylvania ratifyingconvention: "What is meant by liberty of the press is that there shouldbe no antecedent restraint on it; but that every author is responsiblewhen he attacks the security or welfare of the government, or thesafety, character, and property of the individual., 71 The law ofseditious libel, for example, would be unaltered under theBlackstonian formulation.

The Blackstonian understanding, of course, creates enormousproblems for First Amendment originalism. As First Amendmentscholar Rodney A. Smolla put it: "If Blackstone's view of free speechwas the real original meaning of the First Amendment, then arguably90 percent of modem free speech jurisprudence-which goes wellbeyond Blackstone's prohibition against prior restraints-isintellectually dishonest and historically illegitimate." 72 Smolla arguesthat the evidence from the framing generation suggests at least somemembers regarded the scope of free speech as limited byBlackstone's formulation.73 Others certainly saw the FirstAmendment speech and press guarantees as providing enhancedprotection beyond that of the common law, but the problem for aFirst Amendment originalist is refereeing a debate between long-deadframers, ratifiers, and other knowledgeable citizens, and arriving at a

70. LEONARD W. LEVY, ED., FREEDOM OF THE PRESS FROM ZENGER TO JEFFERSON 104-05 (1966)(quoting SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND) (citation omitted).

71. LEVY, supra note 70, at 104 (quoting THE DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION, Vol. II, Ratification of the Constitution by the States 455 (Merrill Jensen, ed., StateHistorical Society of Wisconsin, 1976)).

72. RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 32 (1992).73. Id. at 33.



historian Leonard Levy put it, had opined that freedom of the press consisted of the absence of prior restraints on the press, but not the absence of criminal or other sanctions after pUblication: "Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy freedom of the press; but ifhe publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.,,70 Levy cites influential framer and legal expert James Wilson of Pennsylvania, for example, adopting the Blackstonian position at the Pennsylvania ratifying convention: "What is meant by liberty of the press is that there should be no antecedent restraint on it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, and property of the individual.,,71 The law of seditious libel, for example, would be unaltered under the Blackstonian formulation.

The Blackstonian understanding, of course, creates enormous problems for First Amendment originalism. As First Amendment scholar Rodney A. Smolla put it: "If Blackstone's view of free speech was the real original meaning of the First Amendment, then arguably 90 percent of modem free speech jurisprudence-which goes well beyond Blackstone's prohibition against prior restraints-is intellectually dishonest and historically illegitimate.,,72 Smolla argues that the evidence from the framing generation suggests at least some members regarded the scope of free speech as limited by Blackstone's formulation.73 Others certainly saw the First Amendment speech and press guarantees as providing enhanced protection beyond that of the common law, but the problem for a First Amendment originalist is refereeing a debate between long-dead framers, ratifiers, and other knowledgeable citizens, and arriving at a

70. LEONARD w. LEVY, ED., FREEDOM OF THE PRESS FROM ZENGER TO JEFFERSON 104--05 (1966) (quoting SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND ) (citation omitted).

71. LEVY, supra note 70, at 104 (quoting THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, Vol. II, Ratification of the Constitution by the States 455 (Merrill Jensen, ed., State Historical Society of Wisconsin, 1976)).

72. RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 32 (1992). 73. Id. at 33.

13




correct conclusion about the scope of freedom of speech that makessome sense in light of current jurisprudential realities.74

As Smolla sums up the basic problem, "there is a high probabilitythat many of those involved in the adoption of the First Amendmentnever really focused on the precise meaning of the principles itembodied at all."75 This is a serious blow to First Amendmentoriginalism because the "original meaning" is, to a significant degree,a blank slate.

Of course, the concept of the First Amendment as a limitationexclusively on federal power ended when it was applied to the statesthrough the doctrine of incorporation in the first part of the twentieth

76century. Because the Fourteenth Amendment's Due ProcessClause 77 is the instrument of that process of incorporation, one mightassume that originalists would need to examine the original meaningof that provision in order to properly apply free speech guarantees tothe states. The Fourteenth Amendment, however, adds only furtherlayers of indeterminacy to originalist claims. As First Amendmentscholar Steven J. Heyman has noted, the antislavery Republican Partysponsors of the Fourteenth Amendment were interested in protectionsfor speech and press rights, but "[t]he Republicans' discussion offreedom of speech and press during the Reconstruction Amendmentdebates was confined to general terms and sheds little light on thescope of these freedoms., 78

74. As Larry Kramer put it:[1]nsofar as there were, at the time [of the fiaming], two or more plausible positions onthe correct original public meaning of a provision of the Constitution, all one does inembracing one of them today is to take sides in a historical dispute that was not resolvedat the time of the Founding, and so is not resolvable on such terms today.

Kramer, supra note 61, at 154-55.75. SMOLLA, supra note 72, at 36.76. See, e.g., Gidow v. New York, 268 U.S. 652, 666 (1925).77. The Fourteenth Amendment provides, in relevant part, that:

No State shall make or enforce any law which shall abridge the privileges or immunitiesof citizens of the United States; nor shall any State deprive any person of life, liberty, orproperty, without due process of law; nor deny to any person within its jurisdiction theequal protection of the laws.

U.S. CONST. amend. XIV, § 1.78. STEvEN J. HEYMAN, FREE SPEECH AND HUMAN DIGNiTY 21 (Yale Univ. Press 2008).

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correct conclusion about the scope of freedom of speech that makes some sense in light of current jurisprudential realities.74

As Smolla sums up the basic problem, "there is a high probability that many of those involved in the adoption of the First Amendment never really focused on the precise meaning of the principles it embodied at all.,,75 This is a serious blow to First Amendment original ism because the "original meaning" is, to a significant degree, a blank slate.

Of course, the concept of the First Amendment as a limitation exclusively on federal power ended when it was applied to the states through the doctrine of incorporation in the first part of the twentieth century. 76 Because the Fourteenth Amendment's Due Process Clause 77 is the instrument of that process of incorporation, one might assume that originalists would need to examine the original meaning of that provision in order to properly apply free speech guarantees to the states. The Fourteenth Amendment, however, adds only further layers of indeterminacy to originalist claims. As First Amendment scholar Steven J. Heyman has noted, the antislavery Republican Party sponsors of the Fourteenth Amendment were interested in protections for speech and press rights, but "[t]he Republicans' discussion of freedom of speech and press during the Reconstruction Amendment debates was confined to general terms and sheds little light on the scope of these freedoms.,,78

74. As Larry Kramer put it: [I]nsofar as there were, at the time [of the framing], two or more plausible positions on the correct original public meaning of a provision of the Constitution, all one does in embracing one of them today is to take sides in a historical dispute that was not resolved at the time of the Founding, and so is not resolvable on such terms today.

Kramer, supra note 61, at 154-55. 75. SMOLLA, supra note 72, at 36. 76. See, e.g., Gil/OW v. New York, 268 U.s. 652, 666 (1925). 77. The Fourteenth Amendment provides, in relevant part, that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. CONST. amend. XIV, § 1. 78. STEVEN J. HEYMAN, FREE SPEECH AND HUMAN DIGNITY 21 (Yale Univ. Press 2008).

14




Even Justice Antonin Scalia recognizes problems with originalismin the realm of the First Amendment, acknowledging that "sometimesthere will be disagreement as to how the original meaning applies tonew and unforeseen phenomena," 79 such as to "sound trucks, or togovernment-licensed over-the-air television."80 His solution to suchproblems is vague, as he asserts that "in such new fields the Courtmust follow the trajectory of the First Amendment, so to speak, todetermine what it requires-and assuredly that enterprise is notentirely cut-and-dried but requires the exercise ofjudgment."81

As this article demonstrates in Part II, Justice Thomas engaged inhis own effort in Morse v. Frederick8 2 to follow the trajectory, asJustice Scalia might say, of free speech rights (or lack thereof) ofpublic school students.83 As Notre Dame Professor Richard W.Garnett put it, in Morse "Justice Thomas filed, to the horror of someand the fascination of others, another 'yes, I really mean it about thisoriginalism business!' concurrence. '" 84

B. Paternalism

Webster's Ninth New Collegiate Dictionary defines paternalism, inrelevant part, as "a system under which an authority undertakes tosupply needs or regulate conduct of those under its control in mattersaffecting them as individuals. "85 Black's Law Dictionary, in turn,gives this general definition a legal twist by recognizing that theauthority figure is the government; it defines paternalism as a"government's policy or practice of taking responsibility for theindividual affairs of its citizens, [especially] by supplying their needsor regulating their conduct in a heavy-handed manner."86 Despite

79. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 45(Princeton Univ. Press 1997).

80. Id.81. Id.82. 551 U.S. 393 (2007).83. See infra notes 118-155 and accompanying text.84. Richard W. Garnett, Can There Really Be "Free Speech" in Public schools?, 12 LEWIS &

CLARK L. REV. 45, 47 (2008).85. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 862 (1988).86. BLACK'S LAW DIcTIONARY 1148 (7th ed. 1999).



Even Justice Antonin Scalia recognizes problems with originalism in the realm of the First Amendment, acknowledging that "sometimes there will be disagreement as to how the original meaning applies to new and unforeseen phenomena,,,79 such as to "sound trucks, or to government-licensed over-the-air television.,,80 His solution to such problems is vague, as he asserts that "in such new fields the Court must follow the trajectory of the First Amendment, so to speak, to determine what it requires-and assuredly that enterprise is not entirely cut-and-dried but requires the exercise ofjudgment.,,81

As this article demonstrates in Part II, Justice Thomas engaged in his own effort in Morse v. Frederick82 to follow the trajectory, as Justice Scalia might say, of free speech rights (or lack thereof) of public school students.83 As Notre Dame Professor Richard W. Garnett put it, in Morse "Justice Thomas filed, to the horror of some and the fascination of others, another 'yes, I really mean it about this originalism business!' concurrence. ,,84

B. Paternalism

Webster's Ninth New Collegiate Dictionary defines paternalism, in relevant part, as "a system under which an authority undertakes to supply needs or regulate conduct of those under its control in matters affecting them as individuals. ,,85 Black's Law Dictionary, in tum, gives this general definition a legal twist by recognizing that the authority figure is the government; it defines paternalism as a "government's policy or practice of taking responsibility for the individual affairs of its citizens, [especially] by supplying their needs or regulating their conduct in a heavy-handed manner.,,86 Despite

79. ANrONIN SCALIA, A MATIER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 45 (Princeton Univ. Press 1997).

80. /d. 81. /d. 82. 551 U.S. 393 (2007). 83. See infra notes 118-155 and accompanying text. 84. Richard W. Garnett, Can There Really Be "Free Speech" in Public Schools?, 12 LEWIS &

CLARK L. REv. 45, 47 (2008). 85. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 862 (1988). 86. BLACK'S LAW DICTIONARY 1148 (7th ed. 1999).

15




such dictionary definitions, paternalism is a concept that, as attorneyThaddeus Mason Pope writes, "lacks a clear and crisp definition. 87

For the United States Supreme Court, paternalism seems to boildown to notions of both needs and interests and, in particular, onbehalf of whose needs and interests the authority-the government-supposedly is acting. As former Justice Sandra Day O'Connor put itwhen writing the majority opinion in the commercial speech case ofFlorida Bar v. Went For It, Inc.,88 "[t]here is an obvious differencebetween situations in which the government acts in its own interests... and situations in which the government is motivated primarily bypaternalism."

89

The underlying insinuation of adopting paternalism in the law isthat the government, like a father (the meaning of the root "pater"90)with his child, purportedly knows what is in the best interest of thecitizens under its control. Indeed, as criminal law philosopher JoelFeinberg has argued, paternalism "suggests the view that the statestands to its citizens... as if they were children." 91 We need, in otherwords, government protection from ourselves. 92

The negative implication of this, to put it in its most brutally crassform, is that citizens are too stupid to know what is in their bestinterest. More charitably put, in social science terms, there is anegative correlation between the capacity of a person to rationallyreason and the level of paternalism that should be allowed.93 Indeed,Professor Piety contends that "minimal capacities to reason and

87. Thaddeus Mason Pope, Counting the Dragon's Teeth and Claws: The Definition of HardPaternalism, 20 GA. ST. U. L. REV. 659, 661 (2004). Pope notes that some use terms of hard (or strong)paternalism and soft (or weak) paternalism to try to distinguish shades of the concept, with thedifferences between them "blurred." Id. at 662. A complete examination and discussion of thisdistinction is beyond the scope of this article.

88. 515 U.S. 618 (1995).89. Id. at 631 n.2.90. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 862 (1988).91. 3 JOEL FEINBERG, THE MORAL LIMITS OF CRIMINAL LAW, HARM TO SELF 4 (1986).92. See Blake C. Morant, Law, Literature, and Contract: An Essay in Realism, 4 MICH. J. RACE & L.

1, 14 (1998) (writing that in the realm of contract law, paternalism sometimes "is designed to protect thebargainer from herself").

93. A negative correlation is one in which low levels of one variable are associated with high levelsof another variable. See GuiDo H. STEMPEL, I ET AL., MASS COMMUNICATION RESEARCH ANDTHEORY 159 (2003) (describing both negative and positive correlations).

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336 GEORGIA STATE UNIVERSITY LAW REVIEW [VoL 26:2

such dictionary definitions, paternalism is a concept that, as attorney Thaddeus Mason Pope writes, "lacks a clear and crisp definition. ,,87

For the United States Supreme Court, paternalism seems to boil down to notions of both needs and interests and, in particular, on behalf of whose needs and interests the authority-the govemmentsupposedly is acting. As former Justice Sandra Day O'Connor put it when writing the majority opinion in the commercial speech case of Florida Bar v. Went For It, Inc.,88 "[t]here is an obvious difference between situations in which the government acts in its own interests . . . and situations in which the government is motivated primarily by paternalism. ,,89

The underlying insinuation of adopting paternalism in the law is that the government, like a father (the meaning of the root "pater,,90) with his child, purportedly knows what is in the best interest of the citizens under its control. Indeed, as criminal law philosopher Joel Feinberg has argued, paternalism "suggests the view that the state stands to its citizens ... as ifthey were children.,,91 We need, in other words, government protection from ourselves.92

The negative implication of this, to put it in its most brutally crass form, is that citizens are too stupid to know what is in their best interest. More charitably put, in social science terms, there is a negative correlation between the capacity of a person to rationally reason and the level of paternalism that should be allowed.93 Indeed, Professor Piety contends that "minimal capacities to reason and

87. Thaddeus Mason Pope, Counting the Dragon's Teeth and Claws: The Definition of Hard Paternalism, 20 GA. ST. U. L. REv. 659, 661 (2004). Pope notes that some use terms of hard (or strong) paternalism and soft (or weak) paternalism to try to distinguish shades of the concept, with the differences between them "blurred." Id at 662. A complete examination and discussion of this distinction is beyond the scope of this article.

88. 515 U.S. 618 (1995). 89. Id. at 631 n.2. 90. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 862 (1988). 91. 3 JOEL FEINBERG, THE MORAL LIMITS OF CRIMINAL LAW, HARM To SELF 4 (1986). 92. See Blake C. Morant, Law, Literature, and Contract: An Essay in Realism, 4 MICH. J. RACE & L.

1,14 (1998) (writing that in the realm of contract law, paternalism sometimes "is designed to protect the bargainer from herself').

93. A negative correlation is one in which low levels of one variable are associated with high levels of another variable. See GUIDO H. STEMPEL, III ET AL., MASS COMMUNICATION REsEARCH AND

THEORY 159 (2003) (describing both negative and positive correlations).

16




formulate a conception of the good"94 apparently "dictate how muchgovernment interference (paternalism) is deemed acceptable., 95 Theinterference here is with an individual's autonomy.96

Kathleen Sullivan, former dean of the Stanford Law School,97

contends that in the United States "we have an anti-paternalismprinciple for government telling us what to think and say."98 Shesuggests that the existence of such an anti-paternalism instinct ispartly:

because we're afraid of government manipulating ideas andengaging in thought control as a means of serving other values.And when we tell people what they can hear or read, or listen toor watch, we're doing it to prevent ideas from reaching andinfluencing them. That has a different valence than the directregulation of conduct. 99

Indeed, as Professor Dale Carpenter recently observed, whileAmerican law is littered with examples of paternalism, 100 "in the law

94. Tamara R. Piety, "Merchants of Discontent": An Exploration of the Psychology of Advertising,Addiction, and the Implications for Commercial Speech, SEATTLE U. L. REv. 377, 399-400 (2001).

95. Id. at 400.96. See Paul Roberts, Philosophy, Feinberg, Codification, and Consent: A Progress Report on

English Experiences of Criminal Law Reform, 5 BUFF. CRIm. L. REV. 173, 228 (2001) (writing that"paternalism is regarded with suspicion in contemporary western culture, and with good reason, since itcompetes with the values of liberty, personal autonomy, and individual choice that people in liberalsocieties hold dear") (emphasis added).

97. Sullivan works today in private practice. See Kathleen M. Sullivan, Quinn Emanuel UrquhartOliver & Hedges, LLP website, http://www.quinnemanuel.com/attorneys/sullivan-kathleen-m.aspx (lastvisited Mar. 10, 2009) (providing brief biographical information about Sullivan).

98. Ronald K.L. Collins et al., Thoughts on Commercial Speech: A Roundtable Discussion, 41 LOY,L.A. L. REv. 333, 338 (2007) (quoting Sullivan).

99. Id.100. Carpenter writes the following:

[Platemalism pervades the law. Examples of paternalism include: laws requiring peopleto wear helmets while operating a motorcycle; laws requiring the use of seatbelts in cars;laws forbidding gambling; laws against usury; laws forbidding swimming when nolifeguard is present; laws against dueling; limitations on the legal rights and capacity ofminors and mentally disabled people; restrictions on the use of recreational drugs; theSocial Security system, which compels individual investment in retirement; theprohibition against suicide; and compulsory education laws.

Dale Carpenter, The Antipaternalism Principle in the First Amendment, 37 CREIGHTON L. REV. 579, 580(2004).



formulate a conception of the good,,94 apparently "dictate how much government interference (paternalism) is deemed acceptable.,,95 The interference here is with an individual's autonomy.96

Kathleen Sullivan, former dean of the Stanford Law School,97 contends that in the United States "we have an anti-paternalism principle for government telling us what to think and say.,,98 She suggests that the existence of such an anti-paternalism instinct is partly:

because we're afraid of government manipulating ideas and engaging in thought control as a means of serving other values. And when we tell people what they can hear or read, or listen to or watch, we're doing it to prevent ideas from reaching and influencing them. That has a different valence than the direct regulation of conduct.99

Indeed, as Professor Dale Carpenter recently observed, while American law is littered with examples of paternalism,lOO "in the law

94. Tamara R. Piety, "Merchants of Discontent ": An Exploration of the Psychology of Advertising, Addiction, and the Implicationsfor Commercial Speech, SEATfLE U. L. REv. 377,399-400 (2001).

95. Id. at 400. 96. See Paul Roberts, Philosophy, Feinberg, Codification, and Consent: A Progress Report on

English Experiences of Criminal Law Reform, 5 BUFF. CRIM. L. REV. 173,228 (2001) (writing that "paternalism is regarded with suspicion in contemporary western culture, and with good reason, since it competes with the values of liberty, personal autonomy, and individual choice that people in liberal societies hold dear") (emphasis added).

97. Sullivan works today in private practice. See Kathleen M. Sullivan, Quinn Emanuel Urquhart Oliver & Hedges, LLP website, http://www.quinnemanuel.comlattorneyslsullivan-kathleen-m.aspx (last visited Mar. 10,2009) (providing brief biographical information about Sullivan).

98. Ronald K.L. Collins et aI., Thoughts on Commercial Speech: A Roundtable Discussion, 41 LoY. L.A. L. REv. 333, 338 (2007) (quoting Sullivan).

99. Id. 100. Carpenter writes the following:

[p]aternalism pervades the law. Examples of paternalism include: laws requiring people to wear helmets while operating a motorcycle; laws requiring the use of seatbelts in cars; laws forbidding gambling; laws against usury; laws forbidding swimming when no lifeguard is present; laws against dueling; limitations on the legal rights and capacity of minors and mentally disabled people; restrictions on the use of recreational drugs; the Social Security system, which compels individual investment in retirement; the prohibition against suicide; and compulsory education laws.

Dale Carpenter, The Antipaternalism Principle in the First Amendment, 37 CREIGHTON L. REv. 579, 580 (2004).

17




of free speech, and perhaps in this area of the law alone, paternalismhas been largely rejected."'' Carpenter defines paternalism, in thedomain of First Amendment jurisprudence, as "a restriction onotherwise protected speech justified by the government's belief thatspeaking or receiving the information in the speech is not in citizens'own best interests."' 0 2

In the seminal commercial speech case of Virginia State Board ofPharmacy v. Virginia Citizens Consumer Council, Inc.,'1 3 the U.S.Supreme Court suggested that the antithesis to a "highly paternalisticapproach' ' 1 4 to speech regulation is to assume "that people willperceive their own best interests." 10 5 The high Court's 1976 decisionin Virginia Pharmacy extending First Amendment protection totruthful commercial speech, as Professor Carpenter puts it,represented its "first explicit rejection of paternalism' 10 6 in this realmof expression. Carpenter contends that with the outcome of theVirginia Pharmacy decision, "suddenly paternalism is the dirtiestword in the constitutional lexicon."'10 7

Yet in the realm of public schools, the notion of paternalism thatprovides the government (in the form of public school administratorsand teachers) with the ability to interfere with the speech autonomyof students is embraced and embodied by the U.S. Supreme Court inthe concept of in loco parentis.10 8 Professor Andrea Kayne Kaufmansuccinctly summed up this concept in a recent law journal article,writing that "in loco parentis, coming from Latin, means 'in place ofparent' and refers to the legal authority and obligations teachers,administrators, and other school personnel have to safeguard

101. Id. at 581.102. Id. at 582-83.103. 425 U.S. 748 (1976).104. Id. at 770.105. Id.106. Carpenter, supra note 100, at 588.107. Id. at 587.108. See generally Brian Jackson, Note: The Lingering Legacy of in Loco Parentis: An Historical

Survey and Proposal for Reform, 44 VAND. L. REV. 1135 (1991) (providing an excellent overview of thehistorical origins and development of the concept of in loco parentis).

[Vol. 26:2



of free speech, and perhaps in this area of the law alone, paternalism has been largely rejected."IOI Carpenter defines paternalism, in the domain of First Amendment jurisprudence, as "a restriction on otherwise protected speech justified by the government's belief that speaking or receiving the information in the speech is not in citizens' own best interests.,,102

In the seminal commercial speech case of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,103 the U.S. Supreme Court suggested that the antithesis to a "highly paternalistic approach"l04 to speech regulation is to assume "that people will perceive their own best interests.,,105 The high Court's 1976 decision in Virginia Pharmacy extending First Amendment protection to truthful commercial speech, as Professor Carpenter puts it, represented its "first explicit rejection of paternalism,,106 in this realm of expression. Carpenter contends that with the outcome of the Virginia Pharmacy decision, "suddenly paternalism is the dirtiest word in the constitutionallexicon.,,107

Yet in the realm of public schools, the notion of paternalism that provides the government (in the form of public school administrators and teachers) with the ability to interfere with the speech autonomy of students is embraced and embodied by the U.S. Supreme Court in the concept of in loco parentis. 108 Professor Andrea Kayne Kaufman succinctly summed up this concept in a recent law journal article, writing that "in loco parentis, coming from Latin, means 'in place of parent' and refers to the legal authority and obligations teachers, administrators, and other school personnel have to safeguard

101. Idat581. 102. Id. at 582-83. 103. 425 U.S. 748 (1976). 104. Id. at 770. 105. Id. 106. Carpenter, supra note 100, at 588. 107. Id at 587. 108. See generally Brian Jackson, Note: The Lingering Legacy of in Loco Parentis: An Historical

Survey and Proposalfor Reform, 44 VAND. L. REv. 1135 (1991) (providing an excellent overview of the historical origins and development of the concept of in loco parentis).

18




students."' 10 9 Professor Bruce C. Hafen and attorney Jonathan 0.Hafen assert that "the [Supreme] Court has significantly narrowed itsearly student expression opinions, having resurrected in its recentcases the doctrine of in loco parentis as a rationale for schoolauthority."1 0 In loco parentis may be said to be resurrected because,when the Supreme Court decided Tinker"' in 1969, it "turned awayfrom the in loco parentis doctrine" 112 and began, instead, to recognizethe autonomy of students to choose what to say in school settings. AsProfessor Anne Proffitt Dupre wryly wrote, "when the Tinker Courtdeclared that constitutional rights followed students through theschoolhouse gate, the notion that school power was like that of aparent-the common-law doctrine of in loco parentis-slipped outthe back door." 113 This article makes it clear in Part II, however, thatwhile in loco parentis may have waned as a tool for governmentcontrol over student speech in Tinker, it waxed in Justice Thomas'sconcurrence in Morse.

Writing in another article, Professor Hafen suggests thatpaternalism is perhaps essential in public school settings when itcomes to principles of freedom of expression:

Public education seeks affirmatively to teach the capacity toenjoy First Amendment values-to mediate between ignoranceand educated expression. It is a process that invites intrusion,requires authoritarian paternalism, and depends upon theexercise of unsupervisable discretion. There must be legalprotection against clearly harmful abuse of this flexibility, butwithout some strong influence from those apparent enemies of

109. Andrea Kayne Kaufman, What Would Harry Potter Say About BONG HITS 4 JESUS?. Morse v.Frederick and the Democratic Implications of Using In Loco Parentis to Subordinate Tinker and CurtailStudent Speech, 32 OKLA. CITY U.L. REV. 461,462-63 (2007).

110. Bruce C. Hafen & Jonathan 0. Hafen, Abandoning Children to Their Autonomy: The UnitedNations Convention on the Rights of the Child, 37 HARV. INT'L L.J. 449, 455 (1996).111. See supra note 16 and accompanying text (describing the Tinker opinion).112. Anne Proffitt Dupre, Should Students Have Constitutional Rights? Keeping Order in the Public

Schools, 65 GEO. WASH. L. REV. 49, 72 (1996).113. Id. at60.



students. " 109 Professor Bruce C. Hafen and attorney Jonathan O. Hafen assert that "the [Supreme] Court has significantly narrowed its early student expression opinions, having resurrected in its recent cases the doctrine of in loco parentis as a rationale for school authority." I 10 In loco parentis may be said to be resurrected because, when the Supreme Court decided TinkerlIl in 1969, it "turned away from the in loco parentis doctrine"II2 and began, instead, to recognize the autonomy of students to choose what to say in school settings. As Professor Anne Proffitt Dupre wryly wrote, "when the Tinker Court declared that constitutional rights followed students through the schoolhouse gate, the notion that school power was like that of a parent-the common-law doctrine of in loco parentis-slipped out the back door. ,,113 This article makes it clear in Part II, however, that while in loco parentis may have waned as a tool for government control over student speech in Tinker, it waxed in Justice Thomas's concurrence in Morse.

Writing in another article, Professor Hafen suggests that paternalism is perhaps essential in public school settings when it comes to principles of freedom of expression:

Public education seeks affmnatively to teach the capacity to enjoy First Amendment values-to mediate between ignorance and educated expression. It is a process that invites intrusion, requires authoritarian paternalism, and depends upon the exercise of unsupervisable discretion. There must be legal protection against clearly harmful abuse of this flexibility, but without some strong influence from those apparent enemies of

109. Andrea Kayne Kaufman, What Would Harry Potier Say About BONG HffS 4 JESUS? Morse v. Frederick and the Democratic Implications of Using In Loco Parentis to Subordinate Tinker and Curtail Student Speech, 32 OKLA. CITY U.L. REV. 461, 462-{)3 (2007).

110. Bruce C. Hafen & Jonathan O. Hafen, Abandoning Children to Their Autonomy: The United Nations Convention on the Rights of the Child, 37 HARV.INT'L LJ. 449, 455 (1996). III. See supra note 16 and accompanying text (describing the Tinker opinion). 112. Anne Proffitt Dupre, Should Students Have Constitutional Rights? Keeping Order in the Public

Schools, 65 GEO. WASH. L. REv. 49, 72 (1996). 113. [d. at 60.

19




personal autonomy in the educational process, little seriouseducation is possible." 14

Paternalistic censorship that teaches values was embraced by theU.S. Supreme Court in Bethel School District v. Fraser,"15 in whichthe majority observed that "the undoubted freedom to advocateunpopular and controversial views in schools and classrooms must bebalanced against the society's countervailing interest in teachingstudents the boundaries of socially appropriate behavior." 116 Insummary, the rationale for the paternalism reflected in the censorshipof the speech of public school students proceeds as follows: studentsdon't really know what is appropriate for them to say or not to say inpublic school settings and, in fact, it is the government (principalsand teachers), standing in the place of parents, that does understandand know what types of speech best serve the interests (short-termand long-term) of students. In loco parentis provides a ready-madevehicle for facilitating such paternalism, allowing governmentofficials to play the role of surrogate parents as they see fit. BostonCollege Professor Mary-Rose Papandrea observed in 2008 that"various members of the Supreme Court have suggested that the needto defer to school officials outweighs student speech rights due to theimportance of supporting parental decision-making, the in locoparentis doctrine, the inherent differences between children and

114. Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public SchoolsAs Mediating Structures, 48 OHIO ST. L.J. 663, 669 (1987) (emphasis added).

115. 478 U.S. 675 (1986). The Supreme Court held in Bethel Sch. Dist. No. 403 v. Fraser, a caseinvolving a high school student who gave a speech loaded with sexual innuendoes, that:

The First Amendment does not prevent the school officials from determining that topermit a vulgar and lewd speech such as respondent's would undermine the school'sbasic educational mission. A high school assembly or classroom is no place for a sexuallyexplicit monologue directed towards an unsuspecting audience of teenage students.

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986). In upholding the school's discipline ofthe student, who made the speech in a captive-audience situation before about 600 other students, thehigh Court added that "it is a highly appropriate function of public school education to prohibit the useof vulgar and offensive terms in public discourse." Id. at 683.

116. Id. at 681.

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personal autonomy in the educational process, little senous education is possible. I 14

Paternalistic censorship that teaches values was embraced by the U.S. Supreme Court in Bethel School District v. Fraser/Is in which the majority observed that "the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior.,,116 In summary, the rationale for the paternalism reflected in the censorship of the speech of public school students proceeds as follows: students don't really know what is appropriate for them to say or not to say in public school settings and, in fact, it is the government (principals and teachers), standing in the place of parents, that does understand and know what types of speech best serve the interests (short-term and long-term) of students. In loco parentis provides a ready-made vehicle for facilitating such paternalism, allowing government officials to play the role of surrogate parents as they see fit. Boston College Professor Mary-Rose Papandrea observed in 2008 that "various members of the Supreme Court have suggested that the need to defer to school officials outweighs student speech rights due to the importance of supporting parental decision-making, the in loco parentis doctrine, the inherent differences between children and

114. Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public Schools As Mediating Structures, 48 OHIO ST. L.J. 663,669 (I 987) (emphasis added).

115. 478 U.S. 675 (1986). The Supreme Court held in BeIhel Sch. Dist. No. 403 v. Fraser, a case involving a high school sIudent who gave a speech loaded wiIh sexual innuendoes, that:

The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students.

BeIhel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986). In upholding Ihe school's discipline of Ihe sIudent, who made Ihe speech in a captive-audience situation before about 600 oIher sIudents, Ihe high Court added Ihat "it is a highly appropriate function of public school education to prohibit Ihe use of vulgar and offensive terms in public discourse." Id. at 683.

116. Id. at 681.

20




adults, and the so-called 'special characteristics' of the schoolenvironment." 117

Given this background and understanding, the authors use the termpaternalism in this article, in the context of the government regulationof speech, to stand for the principle that the government is justified inrestricting and regulating speech either: because the audience of thespeech needs help in understanding it or will make wrongheadedchoices with the information (restrictions on commercial speechdesigned to protect the consumer); or because the speakers simplydon't know and understand what speech is appropriate to beconveyed in a specific environment (restrictions on the speechstudents in public schools).

In other words, paternalism can be reflected both in terms ofgovernment control over the flow of speech to an audience and theflow of speech from a speaker in a government-controlled setting.

II. CRITIQUING JUSTICE THOMAS'S CONCURRENCES IN MORSE AND 44LIQUORMART THROUGH THE LENSES OF ORIGINALISM AND

PATERNALISM

Section A of this part of the article examines Justice Thomas'sconcurrence in Morse v. Frederick. Section B then critiques hisconcurrence in 44 Liquormart, Inc. v. Rhode Island. In both sections,the concepts of originalism and paternalism are employed as the toolsof analysis.

A. Morse v. Frederick

1. Originalism in Morse

The difficulties with First Amendment originalism weretransparent in Justice Thomas's concurrence in Morse v. Frederick.'18

As noted earlier, Morse was the latest in a series of limitations placed

117. Mary-Rose Papandrea, Student Speech Rights in the Digital Age, 60 FLA. L. REv. 1027, 1031(2008).

118. 551 U.S. 393 (2007).



adults, and the so-called 'special characteristics' of the school environment." 117

Given this background and understanding, the authors use the term paternalism in this article, in the context of the government regulation of speech, to stand for the principle that the government is justified in restricting and regulating speech either: because the audience of the speech needs help in understanding it or will make wrongheaded choices with the information (restrictions on commercial speech designed to protect the consumer); or because the speakers simply don't know and understand what speech is appropriate to be conveyed in a specific environment (restrictions on the speech students in public schools).

In other words, paternalism can be reflected both in terms of government control over the flow of speech to an audience and the flow of speech from a speaker in a government-controlled setting.

II. CRITIQUING JUSTICE THOMAS'S CONCURRENCES IN MORSE AND 44 LIQUORMARTTHROUGH THE LENSES OF ORIGINALISM AND

PATERNALISM

Section A of this part of the article examines Justice Thomas's concurrence in Morse v. Frederick. Section B then critiques his concurrence in 44 Liquormart, Inc. v. Rhode Island. In both sections, the concepts of originalism and paternalism are employed as the tools of analysis.

A. Morse v. Frederick

1. Originalism in Morse

The difficulties with First Amendment originalism were transparent in Justice Thomas's concurrence in Morse v. Frederick. I 18

As noted earlier, Morse was the latest in a series of limitations placed

117. Mary·Rose Papandrea, Student Speech Rights in the Digital Age, 60 FLA. L. REv. 1027, 1031 (2008).

118. 551 U.S. 393 (2007).

21




on student First Amendment rights by the high court since its seminalstudent speech case in Tinker v. Des Moines Independent CommunitySchool District.19 Tinker, which arose after students wore blackarmbands to school to protest the Vietnam War, held that studentspeech was protected unless it would "materially and substantiallydisrupt the work and discipline of the school.' 20 Later decisionsnarrowed the seemingly broad protection provided by the Tinker"substantial disruption" rule.121

Morse arose when Joseph Frederick, a public high school senior,and friends unfurled a large banner with the phrase "BONG HiTS 4JESUS" at the 2002 Olympic Torch Relay in his hometown ofJuneau, Alaska. 122 The students were attending the relay with thepermission of school authorities and were situated across the streetfrom the high school. When Principal Deborah Morse demanded thestudents take down the banner, all but Frederick agreed to do so. Hewas subsequently suspended from school for ten days. Morsejustified her actions based on her interpretation of the banner asencouraging illegal drug use, which school policy forbade. 123 Theschool superintendent subsequently upheld the suspension, notingthat Frederick's "speech was not political. He was not advocating thelegalization of marijuana or promoting a religious belief. He wasdisplaying a fairly silly message promoting illegal drug usage in themidst of a school activity, for the benefit of television camerascovering the Torch Relay."' 124 Frederick then filed suit in federalcourt alleging violation of his First Amendment rights.

While the U.S. Supreme Court's majority upheld the suspension,reversing a Ninth Circuit ruling that Frederick's First Amendmentrights had been violated, Justice Thomas, in a solo concurring

119. 393 U.S. 503 (1969).120. Id. at 513.121. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (holding that disruption was not the

only ground on which student speech could be suppressed; other grounds included lewd or indecentspeech by students); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (finding that schoolspossess enhanced control over student speech taking place in school-sponsored activities-in this case, astudent newspaper).

122. 551 U.S. at 396-97.123. Id. at 398.124. Id. at 398-99.

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on student First Amendment rights by the high court since its seminal student speech case in Tinker v. Des Moines Independent Community School District. 119 Tinker, which arose after students wore black armbands to school to protest the Vietnam War, held that student speech was protected unless it would "materially and substantially disrupt the work and discipline of the school.,,120 Later decisions narrowed the seemingly broad protection provided by the Tinker "substantial disruption" rule. 121

Morse arose when Joseph Frederick, a public high school senior, and friends unfurled a large banner with the phrase "BONG HiTS 4 JESUS" at the 2002 Olympic Torch Relay in his hometown of Juneau, Alaska. 122 The students were attending the relay with the permission of school authorities and were situated across the street from the high school. When Principal Deborah Morse demanded the students take down the banner, all but Frederick agreed to do so. He was subsequently suspended from school for ten days. Morse justified her actions based on her interpretation of the banner as encouraging illegal drug use, which school policy forbade. 123 The school superintendent subsequently upheld the suspension, noting that Frederick's "speech was not political. He was not advocating the legalization of marijuana or promoting a religious belief. He was displaying a fairly silly message promoting illegal drug usage in the midst of a school activity, for the benefit of television cameras covering the Torch Relay.,,124 Frederick then filed suit in federal court alleging violation of his First Amendment rights.

While the U.S. Supreme Court's majority upheld the suspension, reversing a Ninth Circuit ruling that Frederick's First Amendment rights had been violated, Justice Thomas, in a solo concurring

119. 393 U.s. 503 (1969). 120. [d. at 513. 121. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (holding that disruption was not the

only ground on which student speech could be suppressed; other grounds included lewd or indecent speech by students); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (fmding that schools possess enhanced control over student speech taking place in school-sponsored activities--in this case, a student newspaper).

122. 551 U.S. at 396-97. 123. [d. at 398. 124. [d. at 398-99.

22




opinion, went much further than the majority. "I write separately,"Justice Thomas wrote, "to state my view that the standard set forth inTinker... is without basis in the Constitution."'125

In prototypical originalist fashion, Justice Thomas's analysissought guidance from the framing generation's understanding of thescope of free speech rights. He concluded that "the history of publiceducation suggests that the First Amendment, as originallyunderstood, does not protect student speech in public schools."' 126 Theevidence for this proposition, however, is slim to nonexistent. JusticeThomas noted that there were no public schools during the colonialperiod, 127 meaning that there would necessarily be a completeabsence of evidence from the period of the framing and ratification ofthe Bill of Rights.

However, Justice Thomas asserted, public education was growingat the time of the ratification of the Fourteenth Amendment. This ledhim to conclude that "[i]f students in public schools were originallyunderstood as having free-speech rights, one would have expectednineteenth-century public schools to have respected those rights andcourts to have enforced them. They did not."'128

This analysis is really rather remarkable in that Justice Thomasargued, with great confidence, that the First Amendment does notapply to a state institutional setting that did not exist in 1791, andthat, because of federalism, would not have been under the purviewof the First Amendment even if it had existed. The claim that publiceducation was "relatively common"'1 29 by 1868, when the FourteenthAmendment was ratified, seems of little relevance since, of course,the actual application of the doctrine of incorporation, which appliedthe First Amendment to the states, did not take place until thetwentieth century was well underway.' 30

125. Id. at 410 (Thomas, J. concurring).126. Id. at 410-11.127. Id. at 411.128. Morse, 551 U.S. at 411.129. Id.130. The earliest glimmer of First Amendment incorporation occurred in Gitlow v. New York, 268

U.S. 652 (1925).



opinion, went much further than the majority. "1 write separately," Justice Thomas wrote, "to state my view that the standard set forth in Tinker . .. is without basis in the Constitution.,,125

In prototypical originalist fashion, Justice Thomas's analysis sought guidance from the framing generation's understanding of the scope of free speech rights. He concluded that "the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.,,126 The evidence for this proposition, however, is slim to nonexistent. Justice Thomas noted that there were no public schools during the colonial period,127 meaning that there would necessarily be a complete absence of evidence from the period of the framing and ratification of the Bill of Rights.

However, Justice Thomas asserted, public education was growing at the time of the ratification of the Fourteenth Amendment. This led him to conclude that "[i]f students in public schools were originally understood as having free-speech rights, one would have expected nineteenth-century public schools to have respected those rights and courts to have enforced them. They did not.,,128

This analysis is really rather remarkable in that Justice Thomas argued, with great confidence, that the First Amendment does not apply to a state institutional setting that did not exist in 1791, and that, because of federalism, would not have been under the purview of the First Amendment even if it had existed. The claim that public education was "relatively common,,129 by 1868, when the Fourteenth Amendment was ratified, seems of little relevance since, of course, the actual application of the doctrine of incorporation, which applied the First Amendment to the states, did not take place until the twentieth century was well underway. 130

125. Id. at 4\0 (Thomas, J. concurring). 126. Id. at 410--11. 127. /d. at 411. 128. Morse, 551 U.S.at411. 129. Id. 130. The earliest glimmer of First Amendment incorporation occurred in Gitlow v. New York, 268

U.S. 652 (1925).

23




It is hardly surprising, then, that few would have evencontemplated First Amendment claims on behalf of public schoolstudents in the nineteenth century. Even Justice Thomas's claimsabout the very existence of public education in the nineteenth centuryare misleading and anachronistic-as commentators Doug Kendalland Jim Ryan have argued,

[e]ven by the time the [Fourteenth] Amendment was adopted...public schools were just getting started. Few students attendedschool for more than five years; public high schools werevirtually nonexistent; and compulsory education was stilldecades away. Despite the vast differences between publiceducation then and public education today, Justice Thomasevidently believes the question of whether students have free-speech rights should be answered by conducting an imaginarysdance with 1 8th- and 19th-century Framers and ratifiers .... 131

Kendall and Ryan's point about the brief period of most publiceducation is particularly relevant to Morse; at the time of theprecipitating incident, Joseph Frederick was eighteen years of age,almost unimaginable in a nineteenth-century public school setting.

Justice Thomas supports his view with sources from and aboutnineteenth-century educational practice that emphasized "strictdiscipline. Schools punished students for behavior the schoolconsidered disrespectful or wrong. . . . To meet their educationalobjectives, schools required absolute obedience."' 132 Justice Thomas'sharsh Dickensian vision of childhood, 133 as one commentatordescribed it, was on full display as he marshaled citations andauthorities backing his assertion that nineteenth-century schools wereruled "with an iron hand.' 34 But as noted above, whatever the

131. Doug Kendall & Jim Ryan, Originalist Sins: The Faux Originalism of Justice Clarence Thomas,SLATE, Aug. 1, 2007, http://www.slate.com/id/2171508.

132. Morse, 551 U.S. at 412 (Thomas, J., concurring).133. Stephen Kanter, Symposium: Speech and the Public Schools After Morse v. Frederick: Bongs

Hits 4 Jesus As a Cautionary Tale of Two Cities, 12 LEwIS & CLARK L. REv. 61,99 (2008).134. Morse, 551 U.S. at 411 (Thomas, J. concurring).

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It is hardly surprising, then, that few would have even contemplated First Amendment claims on behalf of public school students in the nineteenth century. Even Justice Thomas's claims about the very existence of public education in the ~ineteenth century are misleading and anachronistic-as commentators Doug Kendall and Jim Ryan have argued,

[e]ven by the time the [Fourteenth] Amendment was adopted ... public schools were just getting started. Few students attended school for more than five years; public high schools were virtually nonexistent; and compulsory education was still decades away. Despite the vast differences between public education then and public education today, Justice Thomas evidently believes the question of whether students have freespeech rights should be answered by conducting an imaginary seance with 18th

_ and 19th-century Framers and ratifiers .... ,,\31

Kendall and Ryan's point about the brief period of most public education is particularly relevant to Morse; at the time of the precipitating incident, Joseph Frederick was eighteen years of age, almost unimaginable in a nineteenth-century public school setting.

Justice Thomas supports his view with sources from and about nineteenth-century educational practice that emphasized "strict discipline. Schools punished students for behavior the school considered disrespectful or wrong. . . . To meet their educational objectives, schools required absolute obedience.,,132 Justice Thomas's harsh Dickensian vision of childhood,133 as one commentator described it, was on full display as he marshaled citations and authorities backing his assertion that nineteenth-century schools were ruled "with an iron hand.,,134 But as noted above, whatever the

131. Doug Kendall & Jim Ryan, Originalist Sins: The Faux Originalism of Justice Clarence Thomas, SLATE, Aug. 1,2007, http://www.slate.comlidl2I71508.

132. Morse. 551 U.S. at 412 (Thomas, J., concurring). 133. Stephen Kanter, Symposium: Speech and the Public Schools After Morse v. Frederick: Bongs

Hits 4 Jesus As a Cautionary Tale of Two Cities, 12 LEWIS & CLARK L. REv. 61,99 (2008). 134. Morse. 551 U.S. at 411 (Thomas, J. concurring).

24




practice of the time, if free speech claims remained inchoate duringthe period, historical practice does not prove limitations on the scopeof the First Amendment, even if we accept originalist criteria at facevalue. These arguments are the legal equivalent of the naturalisticfallacy--deriving limitations on Constitutional norms directly fromhistorical practices, divorced from any legitimate evidence fromConstitutional text, history, doctrine, or other sources.

Justice Thomas's approach is an exemplar of Justice Brennan'sconcern that originalism creates a sort of presumption against claimsof constitutional rights-in this case, through an examination ofhistorical practices that were not informed by any constitutionalscrutiny at the time. There are no doubt many practices fromnineteenth-century institutions that were felt to be constitutional atthe time-segregation comes to mind135-that no judge, includingJustice Thomas, would today find to be constitutionally valid.

As discussed more fully in a later section, 136 Justice Thomas alsodevotes considerable attention to the common-law doctrine of in locoparentis. Unquestionably, in loco parentis may have supported thedisciplinary practices of nineteenth-century American schools andjustified courts of the period in granting considerable discretion toteachers and administrators in matters of discipline, but its relevanceto First Amendment claims that were neither considered nor litigatedseems tangential at best. The Constitution, after all, trumps thecommon law, as any first-year law student knows. And in an area ofthe law in which First Amendment claims were inconceivable in thenineteenth century for all the reasons discussed above, the status quooffers no normative guidance. As one commentator has argued, in thecases Justice Thomas cites in which nineteenth-century courts upheld

135. In fact, Justice Thomas took a very different approach, completely ignoring the nineteenth-century practice of school segregation, as one astute commentator has pointed out, in a case decided justdays after Morse. Hans Bader, Bong Hits for Jesus: The First Amendment Takes a Hit, 2006-07 CATOSUP. CT. REv. 133, 156-57 (2006-2007). In Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,551 U.S. 701 (2007), as Bader points out, Justice Thomas voted with the majority to strike down the useof students' race by school boards to enhance diversity. Had Thomas been faithful to his position thatnineteenth-century school practice was conclusive as to its constitutionality, he would have had to votethe other way, given the widespread nineteenth-century educational practice of using race in schoolplacement decisions.

136. See discussion infra Part ll.A.2.



practice of the time, if free speech claims remained inchoate during the period, historical practice does not prove limitations on the scope of the First Amendment, even if we accept originalist criteria at face value. These arguments are the legal equivalent of the naturalistic fallacy-deriving limitations on Constitutional norms directly from historical practices, divorced from any legitimate evidence from Constitutional text, history, doctrine, or other sources.

Justice Thomas's approach is an exemplar of Justice Brennan's concern that original ism creates a sort of presumption against claims of constitutional rights-in this case, through an examination of historical practices that were not informed by any constitutional scrutiny at the time. There are no doubt many practices from nineteenth-century institutions that were felt to be constitutional at the time-segregation comes to mindl35-that no judge, including Justice Thomas, would today find to be constitutionally valid.

As discussed more fully in a later section,136 Justice Thomas also devotes considerable attention to the common-law doctrine of in loco parentis. Unquestionably, in loco parentis may have supported the disciplinary practices of nineteenth-century American schools and justified courts of the period in granting considerable discretion to teachers and administrators in matters of discipline, but its relevance to First Amendment claims that were neither considered nor litigated seems tangential at best. The Constitution, after all, trumps the common law, as any first-year law student knows. And in an area of the law in which First Amendment claims were inconceivable in the nineteenth century for all the reasons discussed above, the status quo offers no normative guidance. As one commentator has argued, in the cases Justice Thomas cites in which nineteenth-century courts upheld

135. In fact, Justice Thomas took a very different approach, completely ignoring the nineteenthcentury practice of school segregation, as one astute commentator has pointed out, in a case decided just days after Morse. Hans Bader, Bong Hits for Jesus: The First Amendment Takes a Hit, 2006-{)7 CATO SUP. CT. REv. 133, 156-57 (2006-2007). In Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. /, 551 U.S. 701 (2007), as Bader points out, Justice Thomas voted with the majority to strike down the use of students' race by school boards to enhance diversity. Had Thomas been faithful to his position that nineteenth-century school practice was conclusive as to its constitutionality, he would have had to vote the other way, given the widespread nineteenth-century educational practice of using race in school placement decisions.

136. See discussion infra Part IIA.2.

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various school disciplinary practices, "neither the First Amendmentnor any state constitutional free speech argument was even raised,and many of them did not involve censorship at all."' 13 7

Justice Thomas concludes his concurrence with a candid assertionof his own policy preferences. The Tinker regime, he wrote, "hasundermined the traditional authority of teachers to maintain order inpublic schools."'138 Defiance has become commonplace-a perfectexample, Justice Thomas notes, is found in Frederick's conduct inthis case: "Frederick asserts a constitutional right to utter at a schoolevent what is either '[g]ibberish,' . . . or an open call to use illegaldrugs. To elevate such impertinence to the status of constitutionalprotection would be farcical .. ,139 In these lines, it seems, theapolitical originalist recedes and the angry social conservative comesto the fore. In the imaginary, pristine world of Justice Thomas'soriginalism, policy preferences such as these would have no bearingon the outcome and be of no interest to the judge or his readers. Theoriginalist judge is bound by the original public meaning of theConstitution, regardless of pragmatic considerations and socialconsequences in the present. In the originalist mythos, it is theconsideration of the judge's own ideology and preferences thatpolluted Constitutional law in the Warren era.

But perhaps Justice Thomas has gotten the cart before the horse.Perhaps it is not the objective use of history that actually drives hisinterpretations of the Constitution. Perhaps it is, as in Morse, hissocial philosophy that leads to strained and implausible uses ofhistory to implement his conservative vision.

2. Paternalism in Morse

Just as Justice Thomas resorts to the tenets of orignalism in hisdesire to quash and quell the speech rights of public students, so toodid his Morse concurrence reek of a heavy dose of paternalism drawn

137. Bader, supra note 135, at 155.138. Morse, 551 U.S. at 421 (Thomas, J., concurring).139. Id. (citations omitted). But, of course, so much of our First Amendment tradition involves the

robust protection of defiance and impertinence. See generally STEVEN H. SHIFFRIN, THE FIRSTAMENDMENT, DEMOCRACY, AND ROMANCE (Harvard Univ. Press 1990).

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various school disciplinary practices, "neither the First Amendment nor any state constitutional free speech argument was even raised, and many ofthem did not involve censorship at all.,,137

Justice Thomas concludes his concurrence with a candid assertion of his own policy preferences. The Tinker regime, he wrote, "has undennined the traditional authority of teachers to maintain order in public schools.,,138 Defiance has become commonplace-a perfect example, Justice Thomas notes, is found in Frederick's conduct in this case: "Frederick asserts a constitutional right to utter at a school event what is either '[g]ibberish,' ... or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical .... ,,139 In these lines, it seems, the apolitical originalist recedes and the angry social conservative comes to the fore. In the imaginary, pristine world of Justice Thomas's originalism, policy preferences such as these would have no bearing on the outcome and be of no interest to the judge or his readers. The originalist judge is bound by the original public meaning of the Constitution, regardless of pragmatic considerations and social consequences in the present. In the originalist mythos, it is the consideration of the judge's own ideology and preferences that polluted Constitutional law in the Warren era.

But perhaps Justice Thomas has gotten the cart before the horse. Perhaps it is not the objective use of history that actually drives his interpretations of the Constitution. Perhaps it is, as in Morse, his social philosophy that leads to strained and implausible uses of history to implement his conservative vision.

2. Paternalism in Morse

Just as Justice Thomas resorts to the tenets of orignalism in his desire to quash and quell the speech rights of public students, so too did his Morse concurrence reek of a heavy dose of paternalism drawn

137. Bader, supra note 135, at 155. 138. Morse, 551 U.S. at 421 (Thomas, J., concurring). 139. Id. (citations omitted). But, of course, so much of our First Amendment tradition involves the

robust protection of defiance and impertinence. See generally STEVEN H. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE (Harvard Univ. Press 1990).

26




from his historical analysis. For Justice Thomas, it is clear that thegovernment, in the form of public school teachers and administrators,knows what speech is in the best interests of minors. As JusticeThomas bluntly summed it up, "in the earliest public schools,teachers taught, and students listened. Teachers commanded, andstudents obeyed. Teachers did not rely solely on the power of ideas topersuade; they relied on discipline to maintain order.' 40

This is the world to which Justice Thomas would like to return-one in which students only listened-they did not speak-to whatgovernment authorities taught them. Students apparently lacked thecapacity to think and therefore to speak for themselves; thegovernment knew that silence on their part was golden. To return toJoel Feinberg's observation, paternalism "suggests the view that thestate stands to its citizens .. .as if they were children,'1 41 and thisseems to hold literally true here for Justice Thomas.

The notion of the government, standing in the shoes of a parentknowing what is best for his or her child, knowing what speech isbest for students was clear for Justice Thomas, as he glommed on tothe doctrine of in loco parentis to support his apparent view thatchildren are better seen and not heard when they are undergovernment control (in other words, when they are in school-placesettings). "A review of the case law shows that in loco parentisallowed schools to regulate student speech,'142 Justice Thomas wrote.In the realm of expression, the doctrine of in loco parentis provided,in Justice Thomas's view, public schools with near-absolute power toquash student speech. As Justice Thomas put it, "the doctrine of inloco parentis limited the ability of schools to set rules and controltheir classrooms in almost no way,"' 143 other than in the area of whathe called "excessive physical punishment."' 144 Justice Thomas's useof originalism lead him in Morse to conclude that:

140. Morse, 551 U.S. at 412 (Thomas, J., concurring).141. FEINBERG, supra note 91, at 4.142. Morse, 551 U.S. at 414 (Thomas, J., concurring).143. Id. at416.144. Id.



from his historical analysis. For Justice Thomas, it is clear that the government, in the form of public school teachers and administrators, knows what speech is in the best interests of minors. As Justice Thomas bluntly summed it up, "in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order. ,,140

This is the world to which Justice Thomas would like to returnone in which students only listened-they did not speak-to what government authorities taught them. Students apparently lacked the capacity to think and therefore to speak for themselves; the government knew that silence on their part was golden. To return to Joel Feinberg's observation, paternalism "suggests the view that the state stands to its citizens ... as if they were children,,,141 and this seems to hold literally true here for Justice Thomas.

The notion of the government, standing in the shoes of a parent knowing what is best for his or her child, knowing what speech is best for students was clear for Justice Thomas, as he glommed on to the doctrine of in loco parentis to support his apparent view that children are better seen and not heard when they are under government control (in other words, when they are in school-place settings). "A review of the case law shows that in loco parentis allowed schools to regulate student speech,,,142 Justice Thomas wrote. In the realm of expression, the doctrine of in loco parentis provided, in Justice Thomas's view, public schools with near-absolute power to quash student speech. As Justice Thomas put it, "the doctrine of in loco parentis limited the ability of schools to set rules and control their classrooms in almost no way,,,143 other than in the area of what he called "excessive physical punishment."I44 Justice Thomas's use of originalism lead him in Morse to conclude that:

140. Morse, 551 U.S. at 412 (Thomas, 1., concurring). 141. FEINBERG, supra note 91, at 4. 142. Morse, 551 U.S. at 414 (Thomas, J., concurring). 143. Id. at 416. 144. /d.

27




several points are clear: (1) under in loco parentis, speech rulesand other school rules were treated identically; (2) the in locoparentis doctrine imposed almost no limits on the types of rulesthat a school could set while students were in school; and (3)schools and teachers had tremendous discretion in imposingpunishments for violations of those rules. 145

Justice Thomas used the term in loco parentis a whopping fifteentimes in his Morse concurrence; 146 it clearly was the lynchpin for hisanalysis. By way of stark contrast, the opinion of the court, authoredby Chief Justice John Roberts and siding with Principal DeborahMorse, never once uses the term in loco parentis. The concurrence ofJustices Alito and Kennedy used the term in loco parentis only onceand it did so specifically to reject it as the vehicle through which thegovernment can justify censorship of student expression. 147

For Justice Thomas, the high court's landmark decision in Tinkerextending First Amendment speech rights to public school studentswas a huge mistake because the court turned its back on in locoparentis and, instead, began to recognize the autonomy of students ashumans. 148 In Tinker, the Supreme Court announced, with greatrhetorical flourish, that "state-operated schools may not be enclavesof totalitarianism. School officials do not possess absolute authorityover their students. Students in school as well as out of school are'persons' under our Constitution."'149 For Justice Thomas, however,state-operated schools are enclaves of government paternalism, wherestudents are not treated as persons possessing their own libertyinterests but rather are, in the view that the Tinker court rejected,

145. Id at 419.146. Id. at 410-22.147. See id. at 424 (Alito, J., concurring) (reasoning that "[i]t is a dangerous fiction to pretend that

parents simply delegate their authority-including their authority to determine what their children maysay and hear--to public school authorities," and concluding that it is "wrong to treat public schoolofficials, for purposes relevant to the First Amendment, as if they were private, nongovernmental actorsstanding in loco parentis").

148. As Justice Thomas wrote, "Tinker's reasoning conflicted with the traditional understanding ofthe judiciary's role in relation to public schooling, a role limited by in loco parentis." Id. at 417-19(Thomas, J. concurring).

149. Tinker v. Des Moines Indep. Cmty Sch. Dist, 393 U.S. 503, 511 (1969).

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several points are clear: (1) under in loco parentis, speech rules and other school rules were treated identically; (2) the in loco parentis doctrine imposed almost no limits on the types of rules that a school could set while students were in school; and (3) schools and teachers had tremendous discretion in imposing punishments for violations of those rules. 145

Justice Thomas used the term in loco parentis a whopping fifteen times in his Morse concurrence; 146 it clearly was the lynchpin for his analysis. By way of stark contrast, the opinion of the court, authored by Chief Justice John Roberts and siding with Principal Deborah Morse, never once uses the term in loco parentis. The concurrence of Justices Alito and Kennedy used the term in loco parentis only once and it did so specifically to reject it as the vehicle through which the government can justify censorship of student expression. 147

For Justice Thomas, the high court's landmark decision in Tinker extending First Amendment speech rights to public school students was a huge mistake because the court turned its back on in loco parentis and, instead, began to recognize the autonomy of students as humans. 148 In Tinker, the Supreme Court announced, with great rhetorical flourish, that "state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are 'persons' under our Constitution.,,149 For Justice Thomas, however, state-operated schools are enclaves of government paternalism, where students are not treated as persons possessing their own liberty interests but rather are, in the view that the Tinker court rejected,

145. ld. at 419. 146. ld. at 410--22. 147. See id. at 424 (Alito, J., concurring) (reasoning that "[ilt is a dangerous fiction to pretend that

parents simply delegate their authority-including their authority to determine what their children may say and hear-to public school authorities," and concluding that it is "wrong to treat public school officials, for purposes relevant to the First Amendment, as if they were private, nongovernmental actors standing in loco parentis").

148. As Justice Thomas wrote, "Tinker's reasoning conflicted with the traditional understanding of the judiciary's role in relation to public schooling, a role limited by in loco parentis." ld. at 417-19 (Thomas, J. concurring).

149. Tinker v. Des Moines lndep. Cmty Sch. Dist, 393 U.S. 503, 511 (1969).

28




"closed-circuit recipients of only that which the State chooses tocommunicate." 50

Sadly, Justice Thomas suggested that parents who object to thegovernment (that is, public schools) dictating to their children whatspeech is and is not in their best interest have a remedy: "they cansend their children to private schools or home school them; or theycan simply move."'1 51 This represents a bizarre kind of love-it-or-leave-it logic when it comes to the power of government paternalism;if you think you know better than the government what speech yourchild has a right to say, then leave the government's control.

The bottom line for Justice Thomas in Morse, then, is that theapplication of historicism, as a method of constitutionalinterpretation, leads him to the adoption of governmental paternalismin the realm of public schools. This, in turn, leads to a defeat for thespeaker and the First Amendment. In other words, once historicismclears the way for Justice Thomas to conclude that Tinker should bescrapped, what is laid bare-what we are left with-is theresurrection of the old doctrine of in loco parentis.

Historicism and paternalism, when coupled together for JusticeThomas in Morse, thus permit his own form of judicial activism inwhich he alone 52 calls for overturning Tinker and abandoning in itsentirety a muddied body of student-expression jurisprudence. This isdecidedly at odds with what Kathleen Sullivan, as noted earlier,describes in the United States as "an anti-paternalism principle forgovernment telling us what to think and say."'' 53

The media often consider Justice Thomas a conservative,154 but hiscombined use of historicism and paternalism would lead him inMorse to ignore principles of precedent and stare decisis. Morse, it

150. Id.151. Morse, 551 U.S. at 420 (Thomas, J., concurring).152. See Douglas Laycock, High-Value Speech and the Basic Educational Mission of a Public

School: Some Preliminary Thoughts, 12 LEWIS & CLARK L. REv. 111, 130 (2008) (reviewing the Morsedecision and writing that "only Justice Thomas appeared to be interested" in "a path to general repeal ofthe First Amendment in public schools").

153. Collins et al., supra note 98, at 338 (2007) (quoting Sullivan).154. See Geoffrey R. Stone, The Roberts Court, Stare Decisis, and the Future of Constitutional Law,

82 TUL. L. REV. 1533, 1543 (2008) (writing that "there are, according to the media, the 'conservative'Justices-Scalia, Thomas, Roberts, and Alito... ").



"closed-circuit recipients of only that which the State chooses to communicate. ,,150

Sadly, Justice Thomas suggested that parents who object to the government (that is, public schools) dictating to their children what speech is and is not in their best interest have a remedy: "they can send their children to private schools or home school them; or they can simply move.,,151 This represents a bizarre kind of love-it-orleave-it logic when it comes to the power of government paternalism; if you think you know better than the government what speech your child has a right to say, then leave the government's control.

The bottom line for Justice Thomas in Morse, then, is that the application of historicism, as a method of constitutional interpretation, leads him to the adoption of governmental paternalism in the realm of public schools. This, in tum, leads to a defeat for the speaker and the First Amendment. In other words, once historicism clears the way for Justice Thomas to conclude that Tinker should be scrapped, what is laid bare-what we are left with-is the resurrection of the old doctrine of in loco parentis.

Historicism and paternalism, when coupled together for Justice Thomas in Morse, thus permit his own form of judicial activism in which he alone l52 calls for overturning Tinker and abandoning in its entirety a muddied body of student-expression jurisprudence. This is decidedly at odds with what Kathleen Sullivan, as noted earlier, describes in the United States as "an anti-paternalism principle for government telling us what to think and say.,,153

The media often consider Justice Thomas a conservative,154 but his combined use of historicism and paternalism would lead him in Morse to ignore principles of precedent and stare decisis. Morse, it

ISO. Jd. lSI. Morse, 551 U.S. at 420 (Thomas, J., concurring). 152. See Douglas Laycock, High-Value Speech and the Basic Educational Mission 0/ a Public

School: Some Preliminary Thoughts, 12 LEWIS & CLARK L. REv. III, 130 (2008) (reviewing the Morse decision and writing that "only Justice Thomas appeared to be interested" in "a path to general repeal of the First Amendment in public schools").

153. Collins et aI., supra note 98, at 338 (2007) (quoting Sullivan). 154. See Geoffrey R. Stone, The Roberts Court, Stare Decisis, and the Future a/Constitutional Law,

82 TuL. L. REv. 1533, 1543 (2008) (writing that "there are, according to the media, the 'conservative' Justices-Scalia, Thomas, Roberts, and Alito ... ").

29




should be noted, was the first student-speech case Justice Thomasheard since taking his seat on the high court, and now we know that,if he had had his druthers, it also would have been his last. As notedin the Introduction, Professor James E. Fleming asserts that ahallmark of originalism is that the "original meaning of theConstitution may trump judicial doctrine of constitutional law at anytime." 155 In Morse, this was true for Justice Thomas, with originalismleading back to a bygone paternalism and trumping the line ofstudent-speech rights cases that started with Tinker.

B. 44 Liquormart, Inc. v. Rhode Island

1. Originalism in Liquormart

Justice Thomas the iconoclast was fully present in a concurrence inthe 1996 commercial speech case of 44 Liquormart, Inc. v. RhodeIsland,156 but Justice Thomas the originalist kept a low profile. In 44Liquormart, Justice Thomas advocated a dramatic restructuring ofFirst Amendment advertising doctrine in a case dealing with liquoradvertising. The case arose when Rhode Island sought to enforce astate statute banning alcoholic beverage advertising that referred tothe price of the goods, other than price tags or signs within stores.The state justified this regulation with the claim that by preventingprice competition among liquor stores, the state could further its goalof temperance. 157

Retailer 44 Liquormart challenged the law after the state fined thestore for a newspaper advertisement that did not directly list the priceof alcohol products, but instead used the word "WOW" to suggestlow prices.' 58 The Supreme Court struck down the state advertisingban unanimously, although the Court had a considerable divergenceof rationales. The principal opinion for the Court, written by JusticeStevens, largely maintained the traditional distinction between

155. Fleming, supra note 36, at 1151.156. 517 U.S. 484 (1996).157. Id.at489-91.158. Id. at 492.

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should be noted, was the first student-speech case Justice Thomas heard since taking his seat on the high court, and now we know that, if he had had his druthers, it also would have been his last. As noted in the Introduction, Professor James E. Fleming asserts that a hallmark of original ism is that the "original meaning of the Constitution may trump judicial doctrine of constitutional law at any time.,,155 In Morse, this was true for Justice Thomas, with original ism leading back to a bygone paternalism and trumping the line of student-speech rights cases that started with Tinker.

B. 44 Liquormart, Inc. v. Rhode Island

1. Originalism in Liquormart

Justice Thomas the iconoclast was fully present in a concurrence in the 1996 commercial speech case of 44 Liquormart, Inc. v. Rhode Island,156 but Justice Thomas the originalist kept a low profile. In 44 Liquormart, Justice Thomas advocated a dramatic restructuring of First Amendment advertising doctrine in a case dealing with liquor advertising. The case arose when Rhode Island sought to enforce a state statute banning alcoholic beverage advertising that referred to the price of the goods, other than price tags or signs within stores. The state justified this regulation with the claim that by preventing price competition among liquor stores, the state could further its goal of temperance. 157

Retailer 44 Liquormart challenged the law after the state fined the store for a newspaper advertisement that did not directly list the price of alcohol products, but instead used the word "WOW" to suggest low prices. 158 The Supreme Court struck down the state advertising ban unanimously, although the Court had a considerable divergence of rationales. The principal opinion for the Court, written by Justice Stevens, largely maintained the traditional distinction between

155. Fleming, supra note 36, at 1151. 156. 517 U.S. 484 (I996). 157. Id. at 489-91. 158. Id. at 492.

30




commercial speech and more fully protected speech and alsosupported the continued use of the Central Hudson test, 159 with somesuggested modifications. The Central Hudson test applies a form ofFirst Amendment intermediate scrutiny to advertising regulations thatis more deferential to government than the strict scrutiny test theCourt applies to attempts to regulate fully protected speech. 160

Justice Thomas's concurrence from the outset struck a combativetone, suggesting that a distinction between nonmisleadingcommercial speech and other types of protected speech wasconstitutionally untenable. Justice Thomas attacked the application ofthe Central Hudson test in cases in which advertising regulations aredesigned "to keep legal users of a product or service ignorant in orderto manipulate their choices in the marketplace."' 161 The JusticeThomas concurrence at least suggested a nearly wholesaleabandonment of the distinction between commercial speech andnoncommercial speech, which would have profound implications forcommercial speech doctrine.

What is particularly notable about the Justice Thomas concurrenceof 44 Liquormart is that the analysis is largely textbook doctrinallegal analysis. Justice Thomas explicates case after prior case fromthe Court's commercial speech jurisprudence, with barely a glance athistory or the framing generation. This Justice Thomas takes thedoctrinal landscape as a given and smartly negotiates his way throughthe jurisprudential minefield to reach his desired conclusion. Theirony, of course, is that, historically, First Amendment protection foradvertising is at least as controversial as protection for studentspeech. In fact, the First Amendment status of advertising was settledagainst its recognition for many years in a way that student speechnever was after the doctrine of incorporation actually began to beapplied. 1

62

159. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980).160. See generally Susan Dente Ross, Reconstructing First Amendment Doctrine: The 1990s

Revolution of the Central Hudson and O'Brien Tests, 23 HASTINGS COMM. & ENT. L.J. 723 (2001).161. 44 Liquormart, Inc., 517 U.S. at 518 (Thomas, J. concurring).162. Compare Valentine v. Chrestensen, 316 U.S. 52 (1942) (holding that commercial advertising is

not constitutionally protected) with W. Va State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (holdingthat compelling students to salute the flag violates free speech clause of First Amendment).



commercial speech and more fully protected speech and also supported the continued use of the Central Hudson test,159 with some suggested modifications. The Central Hudson test applies a fonn of First Amendment intennediate scrutiny to advertising regulations that is more deferential to government than the strict scrutiny test the Court applies to attempts to regulate fully protected speech. 160

Justice Thomas's concurrence from the outset struck a combative tone, suggesting that a distinction between nonmisleading commercial speech and other types of protected speech was constitutionally untenable. Justice Thomas attacked the application of the Central Hudson test in cases in which advertising regulations are designed "to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace.,,161 The Justice Thomas concurrence at least suggested a nearly wholesale abandonment of the distinction between commercial speech and noncommercial speech, which would have profound implications for commercial speech doctrine.

What is particularly notable about the Justice Thomas concurrence of 44 Liquormart is that the analysis is largely textbook doctrinal legal analysis. Justice Thomas explicates case after prior case from the Court's commercial speech jurisprudence, with barely a glance at history or the framing generation. This Justice Thomas takes the doctrinal landscape as a given and smartly negotiates his way through the jurisprudential minefield to reach his desired conclusion. The irony, of course, is that, historically, First Amendment protection for advertising is at least as controversial as protection for student speech. In fact, the First Amendment status of advertising was settled against its recognition for many years in a way that student speech never was after the doctrine of incorporation actually began to be applied. 162

159. Central Hudson Gas & Elec. Corp. v. Pub. Servo Comm'n, 447 U.S. 557 (1980). 160. See generally Susan Dente Ross, Reconstructing First Amendment Doctrine: The 1990s

Revolution of the Central Hudson and O'Brien Tests, 23 HASTINGS COMM. & ENT. L.J. 723 (2001). 161. 44 Liquormart, 1nc., 517 U.S. at 518 (Thomas, 1. concurring). 162. Compare Valentine V. Chrestensen, 316 U.S. 52 (l942) (holding that commercial advertising is

not constitutionally protected) with W. Va State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (holding that compelling students to salute the flag violates free speech clause of First Amendment).

31




In terms of the framing periods of the First and FourteenthAmendments, free speech protection for commercial speech is hardlya settled question. 16 3 Justice Thomas does assert that he does not "seea philosophical or historical basis for asserting that 'commercial'speech is of 'lower value' than 'noncommercial' speech."' 64 Tosupport this statement he cites, among other things, dicta from severalcases and a brief by American Advertising Federation. However,arch-originalist Justice Antonin Scalia, in his own 44 Liquormartconcurrence, felt the question was too close to call. Justice Scaliawrote that much more evidence would be needed, including evidencefrom state legislative practices of the nineteenth century vis-A-vistheir own state constitutional guarantees of free speech, to properlyevaluate the question of advertising's status on originalist criteria.165

Justice Scalia, at least, acknowledged the highly contested nature ofany originalist assertion that commercial speech should be recognizedas within the scope of the First Amendment.

Thus, Justice Thomas makes a nod toward originalism in 44Liquormart, but in a way that evinces little interest in the complexityof the historical determination. By simply assuming that the originalmeaning of the First Amendment included commercial speech-andby presenting the question as a straightforward one-Justice Thomasis able to move forward on a doctrinalist path toward his preferredresult.

The juxtaposition of Morse and 44 Liquormart reveals somethingsignificant about Justice Thomas's First Amendment originalism,aside from the shared theme of chemical intoxication. In a case inwhich he apparently found the speaker and the class of speechdistasteful (Morse), Justice Thomas went to great lengths to build animplausible historical case against First Amendment recognition of

163. "[T]here is a legitimate argument that on the original understanding, the government couldregulate libelous speech, blasphemous speech, and commercial advertising." CASS R. SUNSTEIN,RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA 65 (BasicBooks 2005). For an opposing view, citing historical sources during the framing periods of the First andFourteenth Amendments, see generally Daniel E. Troy, Advertising: Not 'Low Value'Speech, 16 YALEJ. ON REG. 85 (1999).

164. 44 Liquormart, Inc., 517 U.S. at 522 (Thomas, J. concurring).165. Id. at 517 (Scalia, J. concurring).

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In terms of the framing periods of the First and Fourteenth Amendments, free speech protection for commercial speech is hardly a settled question. 163 Justice Thomas does assert that he does not "see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech."I64 To support this statement he cites, among other things, dicta from several cases and a brief by American Advertising Federation. However, arch-originalist Justice Antonin Scalia, in his own 44 Liquormart concurrence, felt the question was too close to call. Justice Scalia wrote that much more evidence would be needed, including evidence from state legislative practices of the nineteenth century vis-a-vis their own state constitutional guarantees of free speech, to properly evaluate the question of advertising's status on originalist criteria. 165

Justice Scalia, at least, acknowledged the highly contested nature of any originalist assertion that commercial speech should be recognized as within the scope of the First Amendment.

Thus, Justice Thomas makes a nod toward originalism in 44 Liquormart, but in a way that evinces little interest in the complexity of the historical determination. By simply assuming that the original meaning of the First Amendment included commercial speech-and by presenting the question as a straightforward one-Justice Thomas is able to move forward on a doctrinalist path toward his preferred result.

The juxtaposition of Morse and 44 Liquormart reveals something significant about Justice Thomas's First Amendment originalism, aside from the shared theme of chemical intoxication. In a case in which he apparently found the speaker and the class of speech distasteful (Morse), Justice Thomas went to great lengths to build an implausible historical case against First Amendment recognition of

163. "[Tlhere is a legitimate argument that on the original understanding, the govemment could regulate libelous speech, blasphemous speech, and commercial advertising." CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA 65 (Basic Books 2005). For an opposing view, citing historical sources during the framing periods of the First and Fourteenth Amendments, see generally Daniel E. Troy, Advertising: Not 'Low Value' Speech, 16 YALE J. ON REG. 85 (I 999).

164. 44 Liquormart, Inc., 517 U.S. at 522 (Thomas, J. concurring). 165. Id. at 517 (Scalia, J. concurring).

32




the category of speech. But in a case in which he presumablyapproved of the category of speech (44 Liquonnart), Justice Thomasbarely broke a sweat in exploring the originalist bona fides of thespeech, however controversial its historical status in fact is. JusticeThomas's standard for recognition of the speech in Morse was asfollows: "[i]f students in public schools were originally understood ashaving free-speech rights, one would have expected 19th-centurypublic schools to have respected those rights and courts to haveenforced them."' 66 Had he substituted "advertisers" for "students inpublic schools" and "19 th-century state legislatures" for ,19th-centurypublic schools," he would have faced exactly the question that JusticeScalia asserted was without adequate historical evidence in 44Liquormart.

Despite decades of precedential support for both student speechand commercial speech (on non-originalist grounds), Justice Thomasapparently wishes to remake First Amendment doctrine in his ownimage, with very different standards of historical proof depending onthe topic. As constitutional scholar Jack Balkin has argued: "[t]oday'soriginalism is hauled out to attack decisions that judges andpoliticians don't like. But when it comes to decisions they do like, orwould be embarrassed to disavow, the same judges and politiciansquickly change the subject." 167

Of course, whether originalists follow their own tenets rigorouslyand consistently is an entirely different question from whetheroriginalism is a coherent doctrine or a normatively desirable mode ofconstitutional interpretation. But if one wishes to assert thatoriginalism is not simply a cover for one's personal ideology, itwould seem that one's methodology should be beyond reproach.Particularly in the case of Justice Thomas, who is willing to abandondecades of First Amendment precedent where he believes thatprecedent flawed on historical grounds, an impeccable methodologywould seem vital, especially when considering entire categories of

166. Morse, 511 U.S. at 411 (Thomas, J. concurring).167. Jack Balkin, Alive and Kicking: Why No One Truly Believes in a Dead Constitution, SLATE,

Aug. 29, 2005, http://www.slate.com/id/2125226.



the category of speech. But in a case in which he presumably approved of the category of speech (44 Liquormart), Justice Thomas barely broke a sweat in exploring the originalist bona fides of the speech, however controversial its historical status in fact is. Justice Thomas's standard for recognition of the speech in Morse was as follows: "[i]f students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them.,,166 Had he substituted "advertisers" for "students in public schools" and "19th-century state legislatures" for "19th-century public schools," he would have faced exactly the question that Justice Scalia asserted was without adequate historical evidence in 44 Liquormart.

Despite decades of precedential support for both student speech and commercial speech (on non-originalist grounds), Justice Thomas apparently wishes to remake First Amendment doctrine in his own image, with very different standards of historical proof depending on the topic. As constitutional scholar Jack Balkin has argued: "[t]oday's originalism is hauled out to attack decisions that judges and politicians don't like. But when it comes to decisions they do like, or would be embarrassed to disavow, the same judges and politicians quickly change the subject.,,167

Of course, whether originalists follow their own tenets rigorously and consistently is an entirely different question from whether originalism is a coherent doctrine or a normatively desirable mode of constitutional interpretation. But if one wishes to assert that originalism is not simply a cover for one's personal ideology, it would seem that one's methodology should be beyond reproach. Particularly in the case of Justice Thomas, who is willing to abandon decades of First Amendment precedent where he believes that precedent flawed on historical grounds, an impeccable methodology would seem vital, especially when considering entire categories of

166. Morse, 511 u.s. at 411 (Thomas, J. concurring). 167. Jack Balkin, Alive and Kicking: Why No One Truly Believes in a Dead Constitution, SLATE,

Aug. 29, 2005, http://www.slate.comlidl2125226.

33




protected speech. In the cases examined here, however, such astandard appears to be unmet.

2. Paternalism in Liquormart

In stark opposition to Justice Thomas's heavy dose of originalismin Morse leading to the unearthing and adoption of paternalism in therealm of student speech, his Spartan use of originalism in his 44Liquormart concurrence coincided with a rejection of paternalism. Inparticular, Justice Thomas blasted Rhode Island's prohibition on theadvertising of the retail prices of alcoholic beverages as a misguidedeffort "to keep legal users of a product or service ignorant in order tomanipulate their choices in the marketplace."'' 68

Rhode Island had adopted its prohibition on truthful informationabout a lawful product in order to serve its "substantial interest inpromoting temperance." 169 For Justice Thomas, the means to servethis interest-the prohibition on retail price advertising-smacked ofgovernment paternalism because they centered on "keeping would-berecipients of the speech in the dark." He thus criticized theapplication, in such scenarios, of the Central Hudson test, whichgives commercial speech less than full First Amendmentprotection. 170 Thomas wrote that the high Court "has never explainedwhy manipulating the choices of consumers by keeping themignorant is more legitimate when the ignorance is maintained throughsuppression of 'commercial' speech than when the same ignorance ismaintained through suppression of 'noncommercial' speech."' 7'

Calling for more substantial protection for commercial speech likethat originally afforded by the high Court in 1976 in VirginiaPharmacy, 172 Justice Thomas wrote:

168. 44Liquormart, Inc., 517 U.S. at 487.169. Id. at 504.170. Central Hudson Gas & Elec. Corp., 447 U.S. at 566 (setting forth the Central Hudson test).171. 44Liquormart, Inc., 517 U.S. at 526 (Thomas, J., concurring).172. Virginia State Bd of Pharm., 425 U.S. 748. See supra note 22 (describing the high Court's

reasoning for the holding in this case).

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protected speech. In the cases examined here, however, such a standard appears to be unmet.

2. Paternalism in Liquormart

In stark opposition to Justice Thomas's heavy dose of originalism in Morse leading to the unearthing and adoption of paternalism in the realm of student speech, his Spartan use of originalism in his 44 Liquormart concurrence coincided with a rejection of paternalism. In particular, Justice Thomas blasted Rhode Island's prohibition on the advertising of the retail prices of alcoholic beverages as a misguided effort "to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace.,,168

Rhode Island had adopted its prohibition on truthful information about a lawful product in order to serve its "substantial interest in promoting temperance.,,169 For Justice Thomas, the means to serve this interest-the prohibition on retail price advertising-smacked of government paternalism because they centered on "keeping would-be recipients of the speech in the dark." He thus criticized the application, in such scenarios, of the Central Hudson test, which gives commercial speech less than full First Amendment protection. 170 Thomas wrote that the high Court "has never explained why manipulating the choices of consumers by keeping them ignorant is more legitimate when the ignorance is maintained through suppression of 'commercial' speech than when the same ignorance is maintained through suppression of 'noncommercial' speech.,,171

Calling for more substantial protection for commercial speech like that originally afforded by the high Court in 1976 in Virginia Pharmacy,172 Justice Thomas wrote:

168. 44 Liquormart. Inc .• 517 U.S. at 487. 169. Id. at 504. 170. Central Hudson Gas & Elec. Corp., 447 U.S. at 566 (setting forth the Central Hudson test). 171. 44 Liquormart. Inc., 517 U.S. at 526 (Thomas, 1., concurring). 172. Virginia State Bd of Pharm., 425 U.S. 748. See supra note 22 (describing the high Court's

reasoning for the holding in this case).

34




In my view, the Central Hudson test asks the courts to weighincommensurables-the value of knowledge versus the value ofignorance-and to apply contradictory premises-that informedadults are the best judges of their own interests, and that they arenot. Rather than continuing to apply a test that makes no sense tome when the asserted state interest is of the type involved here, Iwould return to the reasoning and holding of Virginia Bd. ofPharmacy.'73

In summary, Justice Thomas rejects paternalism in 44 Liquornart.The government should not restrict the free flow of speech to itscitizens in order to keep them in the dark so as to lead to a result thatthe government considers desirable. As attorney Jay Bender observedin a 2002 article that examines the 44 Liquormart decision,"Thomas's position stems from a belief that individuals should havethe widest range of information about commercial choices in themarketplace, and is consistent with his faith in the 'antipaternalisticpremises of the First Amendment."", 174 In scenarios where thegovernment tries to keep consumers ignorant of truthful informationfor their own good, Justice Thomas would require the government toprove a much more rigorous standard of scrutiny than that providedunder Central Hudson.' 75

CONCLUSION

There are, of course, many ways to analyze judicial opinions. Thisarticle simply has employed one possible approach for trying tounpack and understand the contrasting concurrences of JusticeClarence Thomas in Morse v. Frederick and 44 Liquornart v. RhodeIsland. If David Hudson was correct back in 2002 when he asserted

173. 44Liquormart, Inc., 517 U.S. at 528 (Thomas, J., concurring).174. Jay Bender, The Decline of Paternalism and the Commercial Speech Doctrine, 13 S.C. L. REV.

26, 29 (2002).175. Justice Thomas made this clear in another concurring opinion-in particular, his concurrence in

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 575 (Thomas, J., concurring) (describing how he wouldapply strict scrutiny to such scenarios).


2010) CONTRASTING CONCURRENCES OF CLARENCE THOMAS

In my view, the Central Hudson test asks the courts to weigh incommensurables-the value of knowledge versus the value of ignorance-and to apply contradictory premises-that informed adults are the best judges of their own interests, and that they are not. Rather than continuing to apply a test that makes no sense to me when the asserted state interest is of the type involved here, I would return to the reasoning and holding of Virginia Bd. of Pharmacy. 173

355

In summary, Justice Thomas rejects paternalism in 44 Liquormart. The government should not restrict the free flow of speech to its citizens in order to keep them in the dark so as to lead to a result that the government considers desirable. As attorney Jay Bender observed in a 2002 article that examines the 44 Liquormart decision, "Thomas's position stems from a belief that individuals should have the widest range of information about commercial choices in the marketplace, and is consistent with his faith in the 'antipaternalistic premises of the First Amendment.",174 In scenarios where the government tries to keep consumers ignorant of truthful information for their own good, Justice Thomas would require the government to prove a much more rigorous standard of scrutiny than that provided under Central Hudson. 175

CONCLUSION

There are, of course, many ways to analyze judicial opinions. This article simply has employed one possible approach for trying to unpack and understand the contrasting concurrences of Justice Clarence Thomas in Morse v. Frederick and 44 Liquormart v. Rhode Island. If David Hudson was correct back in 2002 when he asserted

173. 44 Liquormart, Inc., 517 U.S. at 528 (Thomas, J., concurring). 174. Jay Bender, The Decline of Paternalism and the Commercial Speech Doctrine, 13 S.C. L. REv.

26, 29 (2002). 175. Justice Thomas made this clear in another concurring opinion-in particular, his concurrence in

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 575 (Thomas, J., concurring) (describing how he would apply strict scrutiny to such scenarios).

35




that "Justice Thomas has indeed become a free-speech defender,"' ' 76

it is clear after Morse that his defense of free speech is limited toparticular domains and certainly does not encompass studentexpression.

In Morse, Justice Thomas's massive deployment of originalism,with his repeated citations and references to historical decisions andwritings, whisked him down a road of censorship and governmentpaternalism that was facilitated by embracement of the doctrine of inloco parentis that originalism unearthed. The end result, for JusticeThomas, would be to jettison a relatively new area of FirstAmendment jurisprudence and to eliminate all speech rights forstudents in public schools.

In contrast, Justice Thomas's cursory, if not passing, reference tooriginalism in 44 Liquormart carrried him down a road towardenhanced freedom of speech and to the adoption of a decidedly anti-paternalism stance in the realm of commercial speech. The end result,for Justice Thomas, would be to expand protection of speech in arelatively new area of First Amendment jurisprudence.

The implications drawn from these divergent outcomes-the latterfree-speech friendly, the former not so much-are somewhat jarring.On the one hand, students have no First Amendment right to speak ineducational settings where they might learn and reach self-discoverythrough their own contributions (including both learning from theirown speech mistakes and learning how to become critical thinkersthrough challenging ideas). On the other hand, fictitious corporateentities and businesses possess a right to advertise prices so thatothers may learn where to purchase cheap booze so that they maydrink.

Is there a way to reconcile these two seemingly incongruous, if notopposite, outcomes on the paternalism front? The initial answerwould seem to be yes. In the case of commercial speech, the anti-paternalism streak of Justice Thomas relates to an unenumerated First

176. Hudson, supra note 1, at 486.

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that "Justice Thomas has indeed become a free-speech defender,,,176 it is clear after Morse that his defense of free speech is limited to particular domains and certainly does not encompass student expression.

In Morse, Justice Thomas's massive deployment of originalism, with his repeated citations and references to historical decisions and writings, whisked him down a road of censorship and government paternalism that was facilitated by embracement of the doctrine of in loco parentis that originalism unearthed. The end result, for Justice Thomas, would be to jettison a relatively new area of First Amendment jurisprudence and to eliminate all speech rights for students in public schools.

In contrast, Justice Thomas's cursory, if not passing, reference to original ism in 44 Liquormart carrried him down a road toward enhanced freedom of speech and to the adoption of a decidedly antipaternalism stance in the realm of commercial speech. The end result, for Justice Thomas, would be to expand protection of speech in a relatively new area of First Amendment jurisprudence.

The implications drawn from these divergent outcomes-the latter free-speech friendly, the former not so much-are somewhat jarring. On the one hand, students have no First Amendment right to speak in educational settings where they might learn and reach self-discovery through their own contributions (including both learning from their own speech mistakes and learning how to become critical thinkers through challenging ideas). On the other hand, fictitious corporate entities and businesses possess a right to advertise prices so that others may learn where to purchase cheap booze so that they may drink.

Is there a way to reconcile these two seemingly incongruous, ifnot opposite, outcomes on the paternalism front? The initial answer would seem to be yes. In the case of commercial speech, the antipaternalism streak of Justice Thomas relates to an unenumerated First

176. Hudson, supra note I, at 486.

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Amendment right of the audience to receive speech. 177 Thegovernment has an obligation not to block this flow of information, atleast when it is truthful and when the recipient is an adult (those whocan legally purchase the alcohol that so concerned Rhode Island) whocan make his or her own decisions.

In the case of student speech, the pro-paternalism exhibited byJustice Thomas relates, on the specific facts of Morse, not to the rightto receive speech, but rather to what can be said-the right to speak.It was student Joseph Frederick's right to engage speech-speechthat Thomas derisively characterized as "such impertinence"' 78-thatwas quashed.

In a nutshell, it seems like Justice Thomas's anti-paternalism dealswith the right of adults to receive speech, while his pro-paternalismdeals with the right (or lack thereof) of minors to speak. But theimplications of Justice Thomas's pro-paternalism in Morse, however,are not limited to empowering the government to tell students whatthey can and cannot say. In his world, the ability to censor studentspeech and to discipline student conduct, both under the guise of inloco parentis, go hand in hand with the ability to educate and to teachas the government sees fit. As Justice Thomas wrote in hisconcurrence about the world which historicism returns him, "earlypublic schools were not places for freewheeling debates orexploration of competing ideas. Rather, teachers instilled 'a core ofcommon values' in students and taught them self-control."1 79

In other words, this represents a unidirectional flow ofcommunication, in which there is a transmission of speech fromgovernment authorities (school teachers) to students. The receipt ofinformation is completely controlled by the government, withstudents having no input and no room for, as Justice Thomas put it,

177. See Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982) (opining that "the right to receive ideas is anecessary predicate to the recipient's meaningful exercise of his own rights of speech, press, andpolitical freedom"); Griswold v. Conn., 381 U.S. 479, 482 (1965) (writing that "the right of freedom ofspeech and press includes not only the right to utter or to print, but the right to distribute, the right toreceive, the right to read..."); Martin v. Struthers, 319 U.S. 141, 143 (1943) (writing that the FirstAmendment freedom to distribute literature "necessarily protects the right to receive it").

178. Morse, 551 U.S. at 421 (Thomas, J., concurring).179. Id. at 411.



Amendment right of the audience to receive speech. 177 The government has an obligation not to block this flow of information, at least when it is truthful and when the recipient is an adult (those who can legally purchase the alcohol that so concerned Rhode Island) who can make his or her own decisions.

In the case of student speech, the pro-paternalism exhibited by Justice Thomas relates, on the specific facts of Morse, not to the right to receive speech, but rather to what can be said-the right to speak. It was student Joseph Frederick's right to engage speech-speech that Thomas derisively characterized as "such impertinence,,178-that was quashed.

In a nutshell, it seems like Justice Thomas's anti-paternalism deals with the right of adults to receive speech, while his pro-paternalism deals with the right (or lack thereof) of minors to speak. But the implications of Justice Thomas's pro-paternalism in Morse, however, are not limited to empowering the government to tell students what they can and cannot say. In his world, the ability to censor student speech and to discipline student conduct, both under the guise of in loco parentis, go hand in hand with the ability to educate and to teach as the government sees fit. As Justice Thomas wrote in his concurrence about the world which historicism returns him, "early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled 'a core of common values' in students and taught them self-control.,,179

In other words, this 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 and no room for, as Justice Thomas put it,

177. See Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982) (opining that "the right to receive ideas is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom"); Griswold v. Conn., 381 U.S. 479, 482 (1965) (writing that "the right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read ... "); Martin v. Struthers, 319 U.S. 141, 143 (1943) (writing that the First Amendment freedom to distribute literature "necessarily protects the right to receive it").

178. Morse, 551 U.S. at 421 (Thomas, J., concurring). 179. [d. at 411.

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"debates or exploration of competing ideas."' 180 As Justice Thomaswrote elsewhere in Morse: "in the earliest public schools, teacherstaught, and students listened";' 18 and "[e]arly public schools gavetotal control to teachers.' 82

This all suggests that Justice Thomas's pro-paternalism stanceaffects not just what students can say, but also the speech that theycan receive. Students are not allowed to challenge the receivedinformation-to question it, to debate it-in any way because thegovernment knows best what speech they should receive.

Disturbingly, then, Justice Thomas's opinion in Morse stands instark opposition to the marketplace of ideas metaphor that dominatesFirst Amendment jurisprudence. 183 As the Supreme Court wrote inTinker, "the classroom is peculiarly the 'marketplace of ideas.' TheNation's future depends upon leaders trained through wide exposureto that robust exchange of ideas which discovers truth 'out of amultitude of tongues, [rather] than through any kind of authoritativeselection."",184 Justice Thomas's use of originalism in Morse then notonly leads him back to in loco parentis, but also to reject themarketplace metaphor in educational settings.

Moreover, the originalist methodology Justice Thomas deploys inMorse, based as it is on paternalistic practices not informed byconstitutional scrutiny, is a disturbing one in a broader sense. Theeighteenth and nineteenth centuries in the U.S. were, of course,periods of tremendous legal inequality for numerous groups,including African-Americans, women, and Native Americans.Authoritarian and patriarchal arrangements were the norm, ineducational and employment settings, and even families. As legalhistorian Kermit Hall has pointed out, "[t]he eighteenth-century

180. Id.181. Id. at412.182. Id. at419.183. The marketplace of ideas theory of free expression "represents one of the most powerful images

of free speech, both for legal thinkers and for laypersons." MATrHEW D. BUNKER, CRITIQUiNG FREESPEECH 2 (Lawrence Erlbaum Associates) (2001). It has been described as "the dominant FirstAmendment metaphor." LUCAS A. POWE, JR., THE FoURTH ESTATE AND THE CONSTITUTION 237(1991). See generally SMOLLA, supra note 72, at 6-8 (providing an overview of the goals, strengths andweaknesses of the marketplace of ideas theory).

184. Tinker, 393 U.S. at 512 (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).

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"debates or exploration of competing ideas.,,180 As Justice Thomas wrote elsewhere in Morse: "in the earliest public schools, teachers taught, and students listened"; 181 and "[e]arly public schools gave total control to teachers.,,182

This all suggests that Justice 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.

Disturbingly, then, Justice Thomas's opinion in Morse stands in stark opposition to the marketplace of ideas metaphor that dominates First Amendment jurisprudence. 183 As the Supreme Court wrote in Tinker, "the classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection. ",184 Justice Thomas's use of originalism in Morse then not only leads him back to in loco parentis, but also to reject the marketplace metaphor in educational settings.

Moreover, the originalist methodology Justice Thomas deploys in Morse, based as it is on paternalistic practices not informed by constitutional scrutiny, is a disturbing one in a broader sense. The eighteenth and nineteenth centuries in the U.S. were, of course, periods of tremendous legal inequality for numerous groups, including African-Americans, women, and Native Americans. Authoritarian and patriarchal arrangements were the norm, in educational and employment settings, and even families. As legal historian Kermit Hall has pointed out, "[t]he eighteenth-century

180. Id. 181. Id. at412. 182. Id at 419. 183. The marketplace of ideas theory of free expression "represents one of the most powerful images

of free speech, both for legal thinkers and for laypersons." MAITHEW D. BUNKER, CRITIQUING FREE SPEECH 2 (Lawrence Erlbaum Associates) (2001). It has been described as "the dominant First Amendment metaphor." LUCAS A. POWE, JR., THE FOURTH ESTATE AND THE CONSTITUTION 237 (1991). See generally SMOLLA, supra note 72, at 6-8 (providing an overview of the goals, strengths and weaknesses of the marketplace of ideas theory).

184. Tinker, 393 U.S. at 512 (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967».

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American family was a vital link the chain of social authority ....Within the family, as in the larger political society, patriarchy orderedsocial relations."' 185 This is the world, with its oppressive andanachronistic social practices, that Justice Thomas wishes to revisit,indeed resurrect, to determine the scope of First Amendmentprotection for speech---or at least speech he appears to dislike.

As constitutional scholar Jack Balkin has argued, "[n]obody, and Imean nobody, whether Democrat or Republican, really wants to liveunder the Constitution according to the original understanding oncethey truly understand what that entails. Calls for a return to theframers' understandings are a political slogan, not a serious theory ofconstitutional decision-making."' 186 In the vital realm of freedom ofspeech, only serious theories need apply.

185. KERMiT L. HALL, THE MAGIC MIRROR: LAW IN AMERICAN HISTORY 150 (Oxford Univ. Press)(1989).

186. Balkin, supra note 167.



American family was a vital link the chain of social authority . . .. Within the family, as in the larger political society, patriarchy ordered social relations." 185 This is the world, with its oppressive and anachronistic social practices, that Justice Thomas wishes to revisit, indeed resurrect, to determine the scope of First Amendment protection for speech--or at least speech he appears to dislike.

As constitutional scholar Jack Balkin has argued, "[n]obody, and I mean nobody, whether Democrat or Republican, really wants to live under the Constitution according to the original understanding once they truly understand what that entails. Calls for a return to the framers' understandings are a political slogan, not a serious theory of constitutional decision-making.,,186 In the vital realm of freedom of speech, only serious theories need apply.

185. KERMIT L. HALL, THE MAGIC MIRROR: LAW IN AMERICAN HISTORY 150 (Oxford Univ. Press)

(1989). 186. Balkin, supra note 167.

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contrasting concurrences of clarence thomas: deploying

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