The Words of Justice Thomas

This post first appeared on the Money, Politics and the Law blog.  For more on that project, click here.

Since we likely won’t be hearing from Justice Clarence Thomas in oral arguments (he hasn’t spoken at them since 2006) when the Supreme Court takes up the Affordable Care Act tomorrow, instead we’ll look at his words in his opinion in McConnell v. FEC.  McConnell was the 2003 case that Citizens United partially overturned by a five-to-four vote featuring Justice Thomas in the majority.  In McConnell, Justice Thomas concurred with the main result but criticized the Court’s decision which he believed unconstitutionally restricted the exchange of ideas.  In the passage below he notes other forms of speech which the Court had held to be protected under the First Amendment.

Yet today the fundamental principle that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting), is cast aside in the purported service of preventing “corruption,” or the mere “appearance of corruption.” Buckley v. Valeo, 424 U.S. 1, 26 (1976)(per curiam). Apparently, the marketplace of ideas is to be fully open only to defamers, New York Times Co. v. Sullivan, 376 U.S. 254 (1964); nude dancers,Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (plurality opinion); pornographers, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); flag burners, United States v. Eichman, 496 U.S. 310 (1990); and cross burners,Virginia v. Black, 538 U.S. ___ (2003).