At Dorf on Law, Michael Dorf criticizes Justice Thomas' criticism of New York Times v. Sullivan: How to Test Whether Justice Thomas Favors "Halfway Originalism". Among other important points, he asks:
Why does Justice Thomas object to Sullivan? … 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.
At Balkinization, Marty Lederman makes a similar point at much greater length. Here is part of the argument:
Justice Thomas's mantra of fidelity to "original meaning" appears to be an effort to portray himself as a practitioner of the “New Originalism,” a school of thought that (in theory) has abandoned the old-fashioned, discredited “old originalism” ideas (associated with Robert Bork, et al.) that the Constitution should be interpreted according to the Framers’ intentions or expectations in favor of the idea that “constitutional interpretation is the discovery of the linguistic meaning of the constitutional text.”
For all his talk about original “meaning,” however, in his McKee opinion Justice Thomas never once discusses what the actual semantic meaning (public or otherwise) of the words of the First and Fourteenth Amendments might have been in 1789 and 1868. Indeed, he pays virtually no attention to the text at all. Instead, Thomas’s entire critique consists of describing the common law of libel and defamation when the Amendments (especially the First Amendment) were ratified; apparently applying an (unstated) presumption that the framers didn’t intend or foresee that the Constitution would upend that common law (as Steve Sachs might put it, that they intended to preserve a “constitutional backdrop”—but cf. my discussion at pages 1589-92 here); and then concluding that the "original understanding was that the common law would be unaffected."
It’s not until page 10 of his opinion that Thomas even quotes the text of the Free Speech Clause—and then, instead of trying to discern its “meaning,” he simply invokes with approval Justice White’s dissent in Gertz, which was expressly based upon a view of original “intent,” not textual meaning. (Thomas even goes so far as to emphasize White's argument that “[s]cant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers.”)
Justice Thomas’s opinion, then, is a classic example of “original intent” and “original expected applications” originalism, of the sort the “New Originalism” had, in theory, rejected and interred forever—draped in the garments of the new “original public meaning” originalism.
I think there is some force to these objections, but only some. Several points can be made in response:
1. Essentially everyone agrees that the framers' intentions and expectations, and especially the legal environment in which they wrote, are important clues to original meaning, even while the original meaning remains the ultimate objective of the inquiry. Professor Lederman acknowledges this, and notes a response by originalism theorist Larry Solum:
[Professor Solum] noted that intent and expectations at the time of ratification—as reflected in practices that continued at the time—can provide evidence that’s relevant to what the public meaning of the text might have been.
…
[Professor Solum also noted] that “the common law background may be part of the OPM of the 1A if the phrases ‘freedom of speech’ and ‘freedom of the press’ refer to preexisting legal rights.” In other words, perhaps the phrases “freedom of speech” and “freedom of the press” had specialized meanings at the time that were reflected in the existing state common law doctrines, such that the “freedom” being protected by the First Amendment was merely whatever “freedoms” one had to speak and publish before the Amendment was ratified, i.e., “the freedom of speech circa 1791.”
I agree on both points, and they suggest that at least to some people, there is not so large a gap between original understanding and original meaning. Much evidence that is relevant to original intent is also relevant to original meaning
2. Justice Thomas (and previously Justice Scalia) have indeed embraced the idea that the First Amendment protected a pre-existing right of free speech ("the" freedom of speech). I agree that Justice Thomas could have been more clear on this point in his concurrence, but I think it evident that this is his theory. (He could, of course, be wrong about this, but that does not mean he is not seeking the Amendment's original meaning — only that he is perhaps not getting it right). Moreover, this is a common approach adopted by Thomas, Scalia and other originalists with respect to other parts of the Bill of Rights, including for example the Second Amendment and criminal procedure provisions such as the confrontation clause. (See here for my discussion of Scalia's approach).
Looking at the common law background to understand the meaning of rights provisions is not really the same as the old-style original intent. As Professor Lederman acknowledges, in quoting Stephen Sachs, it's common for pre-existing legal conditions to give meaning to legal writing. That's different from trying to guess what particular framers would have thought about an issue based on their subjective intentions, which is the most criticized part of the old "original intent" model.
Professor Lederman goes on to argue:
If one were to have asked virtually any person in 1789 whether her “freedom” to “speak” would in any way be “abridged” if she were assessed a financial penalty for criticizing a public figure or official, the answer would almost surely have been “yes, of course,” based simply on the common public meaning of those three words. To be sure, such a person might also have been aware that states at the time exercised the lawful power to do just that—i.e., to assess penalties for defamatory speech of public figures, sometimes even when the speech was truthful. Would that have changed their view of the semantic meaning of the words of the Free Speech Clause? Presumably not: That ubiquitous practice would only have suggested to such a person that the states could lawfully “abridge” their “freedom” to “speak” under certain circumstances (and also, perhaps, that the Constitution was estopping Congress from henceforth doing the same).
Perhaps, but he does not provide any evidence that this is true, and it seems like speculation. Moreover, the originalist question is whether a limit on libel would abridge the freedom of speech. Maybe this means the same as abridging "her freedom to speak" generally, as Professor Lederman says; but maybe instead (as argued above) it refers to abridging a pre-existing natural or common law right which included some speech but not others, and which thus is "abridged" by some speech restrictions but not others. The right question to ask is whether it was commonly believed that laws against libel abridged "the freedom of speech."
My point is not to try to resolve this debate (I'm not a First Amendment scholar), but to point out that both positions are efforts to understand the original meaning. Again, I think Professor Lederman is right that Justice Thomas could have been more clear on this point, but I also think it's clear enough, especially considering other writings, that this is what he meant.
3. It's worth pointing out that Justice Thomas wasn't trying to be definitive; he was simply raising the issue. It had not been argued and so was not before the Court. He was simply saying that in an appropriate case that Sullivan should be reconsidered because (a) the Sullivan Court itself did not justify its conclusion on the basis of original meaning and (b) a quick look at libel law in the founding era suggests that perhaps people did not think it abridged the freedom of speech since no one seemed to have a problem with it (or at least with some versions of it). But Thomas would presumably be open to arguments that either the common understanding of libel law was that it did abridge the freedom of speech or that libel law was subject to certain limits which the First Amendment constitutionalized and which might support the outcome in Sullivan and elsewhere.
4. Professor Dorf makes this point, with which I entirely agree:
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.
I bet, though, that the 1868 understanding was not materially different from the 1791 understanding.
5. And finally, look how much interesting academic discussion Justice Thomas has generated. We should celebrate his thoughtful and provocative concurrence, whatever we think of its merits.
Posted at 6:11 AM