Friday, February 22, 2019

How to Test Whether Justice Thomas Favors "Halfway Originalism"

by Michael C. Dorf

On Tuesday, the Supreme Court denied cert in a relatively unimportant case (save for the fact that the respondent was Bill Cosby--yes, that Bill Cosby). The petitioner/plaintiff sought review of a federal appeals court ruling that in order to prevail in her defamation suit against the erstwhile Jell-O pitchman she needed to show "actual malice," because she was a "public figure" for purposes of the case, having "thrust" herself "into the vortex" of a public controversy. The quotation marks indicate terms of art in a line of cases originating with the landmark NY Times v. Sullivan.

I have some sympathy for a certain line of criticism of the post-Sullivan cases. Sullivan itself was a case brought by an elected public official. Later cases--especially Gertz v. Robert Welch, Inc.--extend the doctrine's protection against too-easy defamation liability to criticisms of private citizens. Sullivan sensibly protects core political speech critical of public officials, even if that speech contains inadvertent misstatements of fact. It is not entirely clear that criticism of celebrities based on factual errors, much less criticism of non-celebrities--even those who thrust themselves into a controversy's vortex--should receive the same level of protection. Thus, my colleague and friend Steve Shiffrin argues (at pp 120-22 of his book What's Wrong With the First Amendment?) that in some respects the public figure doctrine provides too much protection for speech and in other respects provides too little protection for speech. He would prefer a doctrine that focuses less on fame and more on power.

Nonetheless, although McKee v. Cosby may have worked an injustice, the Court was right to deny cert if the only issue was whether the appeals court correctly applied Gertz. A more worthy petition would have asked the Court to modify Gertz. And indeed, one justice--Clarence Thomas--wrote a longish concurrence in the denial of cert in McKee in which he argued for reconsidering not just Gertz but Sullivan itself. But whatever the flaws in Gertz, overruling Sullivan would throw the baby out with the bathwater.

Why does Justice Thomas object to Sullivan? Does he want to help President Trump "open up our libel laws." Not necessarily. Justice Thomas thinks that a state should be allowed to adopt the rules of Sullivan and its progeny in "striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm." However, he would reject Sullivan as a constitutional rule, because he does not think it accurately captures the original understanding of the First Amendment.

That contention is vulnerable on its own terms. As I have argued elsewhere, Justice Thomas sometimes officially professes the lately fashionable version of originalism, according to which courts should give effect to a constitutional provision's original public meaning but not to the concrete expectations or intentions of a provision's framers and ratifiers (except insofar as they shed light on such original public meaning); however, when it comes time to consider a provision's original meaning, Justice Thomas frequently proceeds like an old-style originalist concerned about expectations and intentions. Perhaps a case could be made that the original meaning of "freedom of speech" did not include unintentionally false statements about public officials and public figures, but Justice Thomas does not make that case.

Moreover, it is hardly clear why Justice Thomas focuses his McKee opinion on the pre-1791 understanding rather than the pre-1868 understanding. Sullivan and its progeny limit the application of state defamation law, and in doing so they rely on the Fourteenth Amendment's application of the First Amendment to the states, not on the First Amendment itself. Just the day after he wrote in McKee, Justice Thomas concurred separately in Timbs v. Indiana, in which he reiterated his view that the Privileges or Immunities Clause of the Fourteenth Amendment, rather than its Due Process Clause, does the job of incorporating most of the Bill of Rights. Yet whether it's Due Process or Privileges or Immunities that makes a Bill-of-Rights provision applicable to the states, the key date for an originalist should be 1868, not 1791. Perhaps Justice Thomas has some theory of why the earlier meaning nonetheless controls, but if so, he has not shared it with the public.

Let's put all of that aside, however. In other words, let's assume that Justice Thomas is right about the sources, date, and content of the original meaning. Shouldn't he also call for the reexamination and possible overruling of other free speech doctrines that have not been justified on originalist grounds?

Just last Term, Justice Thomas joined Justice Alito's opinion in Janus v. AFSCME, which invoked the First Amendment to invalidate any agency fee for workers who choose not to join a public employee union. The opinion was almost entirely rooted in modern doctrine and policy considerations. Its analysis of original meaning is virtually a non sequitur: "The Union offers no persuasive founding-era evidence that public employees were understood to lack free speech protections." But of course the issue wasn't whether public employees lacked free speech protections; it was whether compulsory fees violated those protections; the majority--without objection from Justice Thomas--did not even purport to inquire about original meaning with respect to that question.

One could give other examples of Justice Thomas applying free speech precedents that have not been well justified by reference to original understanding, and Mark Tushnet gives such examples in a post on Balkinization. Meanwhile, there is no reason for Justice Thomas to limit his originalist objections to First Amendment cases--and he doesn't so limit them. For example, he has called for reexamination of the Court's Commerce Clause jurisprudence.

But one might wonder whether, in Justice Alito's phrase in Janus, Justice Thomas is practicing "halfway originalism." In addition to the examples Prof. Tushnet cites, consider that Justice Thomas has written passionately in favor of construing the Equal Protection Clause to require "color-blindness," (e.g., here), but has made no serious effort to confront the substantial evidence that this view contradicts the original understanding of the Fourteenth Amendment. Maybe Justice Thomas is still using Justice Scalia's imaginary Constitution, in which the Fourteenth Amendment's Equal Protection Clause "explicitly establishes racial equality as a constitutional value."

Whatever the explanation for Justice Thomas's eagerness to re-evaluate some but not all of the Court's nonoriginalist precedents, it carries a lesson for lawyers. Justice Thomas and other justices have sometimes stated that they will apply what they regard as questionable lines of doctrine unless and until a case presents the question whether to overturn the relevant doctrine. Yet lawyers don't usually ask the Court to abandon whole lines of doctrine. For example, the cert petition in McKee alleged that the appeals court had misapplied the Court's public figure cases, not that the whole line should be abandoned. To get Justice Thomas's vote, maybe henceforth  lawyers should append a footnote to the Question Presented in every cert petition in a constitutional case. It could read:

In addition, this case also presents the following question: Whether the cases and doctrines on which the lower court relies can be justified in light of the original understanding?

You're welcome.


Shag from Brookline said...

Justice Thomas' "Nooks and Crannies Originalism" promises explained.

Conspiracy theorists might connect Justice Thomas' concurrence with his spouse's recent visit to the Oval Office and possible "pillow talk." Consider the recent $250M recent lawsuit against WaPo regarding a Covington High School student. Did the student and his parents become public figures by the time of the lawsuit?

Joe said...

Fellow Dorf-ite, who cited Dorf himself in his new book [Trump-ian orange color cover] "Originalism as Faith," Eric Segall (being a law professor means never having to say you are sorry*) has also voice his support for changing this area of law. He also cited Thomas' selective originalism (including on this blog).

Thomas cites Justice White, a critic of a broad reading of NYT v. Sullivan, and as is often the case, White's dissenting views from Warren/Burger/Rehnquist opinions are worthwhile. White was no originalist and consistently following White would clash with various Thomas opinions. And, as noted in the text here, a stronger case can be made to limit the reach of protections regarding criticism of public figures than a total reversal of NYT v. Sullivan. For instance, compare the woman here with someone like Jared Kushner or Roger Stone.

As an aside, I'm sort of curious how much it really matters if the Fines Clause (etc.) is incorporated via the Privileges or Immunities Clause instead of substantive due process. Thomas in his Timbs concurrence suggests SDP leads to such horrible cases as Dred Scott and Roe (which he did put together) but suffice to say that is somewhat b.s. DS barely rested on SDP (in its infancy at the time) and Roe v. Wade easily could have (and later on was partially; in fact, arguably, at the time, Justice Douglas offered a "penumbra" approach) rested on other grounds. As to the whole "what about non-citizens" concern, procedural rights would still be for "persons" and due process also has an equal protection component.


* Yes, the author this alludes has a slightly different spelling.

Shag from Brookline said...

Mark Tushnet has an interesting 2/23/19 follow up post at Balkinization on Justice Thomas's concurrence.

Query: Regarding originalism dates on the 1st A, references are made to whether it's original meaning as of 1791 (ratification of Bill of Rights) or 1868 (ratification of 14th A) that counts. Might this involve different original meanings dates for federal judicial purposes and state judicial purposes? Or, did the 14th A update the 1st A original meaning date to 1868?

Tushnet's discussion of originalism points out that SCOTUS may have yet to bought into the New Originalism's "Construction Zone" which might be a means to protect the press from locals. Too many potholes?

Joe said...

The different dates also factors in with substantive due process.

There are articles that defend the concept on originalist grounds but it helps if you push up the date to 1868. Anti-slavery constitutionalism in part was based on substantive due process.

Shag from Brookline said...

Again over at Balkinization now Marty Lederman adds quite a detailed critique of Justice Thomas' originalism. Now if Justice Thomas were a legal academic blogging on the Internet, he would seem to need to respond to Marty's, Mike's and Mark's critiques of his concurrence. Rather, Larry Solum tweeted Marty, which Marty reports in his post at Balikinization. Perhaps over the weekend in San Diego that bevy of originalists will determine to circle their wagons in defense of Justice Thomas, searching all the nooks and crannies of Justice Thomas' "Nooks and Crannies Originalism" to avoid toasting. (Marty give "shout-outs to Mike and Mark for their critiques.)

I imagine Eric Segall faithfully smiling at all this. But in this age of Trump, where are the conspiracy theorists alluded to in my first comment?