Sex, Drugs, and Democracy: Who's Afraid of Free Speech?

Abstract

In 2007, in the much-discussed “Bong Hits 4 Jesus” case, Justice Clarence Thomas wrote a concurring opinion arguing that the First Amendment offers no protection at all to speech by students in public schools. Justice John Paul Stevens, joined by two other Justices, wrote a dissent asserting that the “silly, nonsensical banner” flown by the student deserved a high level of protection under the First Amendment. Reading this decision in isolation, one might infer that, among the Justices now on the Court, Justice Stevens is one of the paladins of free speech. From that same perspective, Justice Thomas would appear to be among the Justices least sensitive to the values embodied in the First Amendment.

The reality is quite different. When we look at the full spectrum of free speech cases decided by the late Rehnquist Court, we find that Justice Thomas actually outranks Justice Stevens as a supporter of First Amendment claims. And when we disaggregate the cases and look at major categories separately, the gap becomes even wider. Justice Thomas emerges as a champion of free speech in the tradition of Justice William J. Brennan, while Justice Stevens repeatedly takes a niggardly view of the protection accorded by the constitutional guarantee.

What is particularly striking is Justice Stevens’ apparent indifference to the importance of free speech to democratic self-governance. Nor does he recognize what has been referred to in other contexts as structural suspicion – suspicion that those who hold political office will enact or enforce laws in a way that helps them to maintain their grip on power.

Keywords: First Amendment, free speech, Child Online Protection Act, COPA, Ashcroft v. American Civil Liberties Union, Justice Clarence Thomas, Justice John Paul Stevens, community standards, Constitutional Law