Monday, June 22, 2020

Justice Thomas concludes that the "freedom of speech" is a Privilege or Immunity under the 14th Amendment

By Josh Blackman - June 22, 2020 at 12:33PM

Today the Supreme Court denied review in Kansas v. Boettger. This case considered whether "the First Amendment prohibits States from criminalizing threats to '[c]ommit violence . . . in reckless disregard of the risk of causing . . . fear.'" Justice Thomas dissented from the denial of certiorari. He concluded that "the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate." And he did not think this case was governed by Virginia v. Black (2003). (Thomas dissented in Black).

At the outset of his analysis, Thomas once again rejects substantive due process incorporation. instead, he says that the First Amendment–an enumerated right–is protected by the Privileges or Immunities Clause of the Fourteenth Amendment.

The Fourteenth Amendment provides that "[n]o Stateshall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." §1.As I have previously explained, "[t]he evidence overwhelmingly demonstrates that the privileges and immunities of such citizens included individual rights enumerated in the Constitution." McDonald v. Chicago, 561 U. S. 742, 823 (2010) (opinion concurring in part and concurring in judgment). One of those rights is "the freedom of speech" in the First Amendment. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 2765 (1866) (speech of Sen. Howard).The Fourteenth Amendment provides that "[n]o Stateshall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." §1.As I have previously explained, "[t]he evidence overwhelmingly demonstrates that the privileges and immunities of such citizens included individual rights enumerated in the Constitution." McDonald v. Chicago, 561 U. S. 742, 823 (2010) (opinion concurring in part and concurring in judgment). One of those rights is "the freedom of speech" in the First Amendment. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 2765 (1866) (speech of Sen. Howard).

This conclusion follows from McDonald. This is the first time (as best as I can recall) that Thomas has grounded the freedom of speech in the Privileges or Immunities Clause of the Fourteenth Amendment.

Thomas then expressly considers historical evidence leading up to Reconstruction.

The prevalence of statutes from the founding through Reconstruction that did not require intent to intimidate provides strong evidence of the meaning of the freedom of speech protected by the Fourteenth Amendment.

Thomas raised similar points in Elonis v. United States. But that case did not involve incorporation.


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