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To the incremental surprise and perhaps discomfiture of some of his critics, Justice Clarence Thomas is growing harder to stereotype. It’s become the conventional wisdom to say that he should not be dubbed Justice Antonin Scalia’s “twin.” And this term, he has written as boldly and uncompromisingly in celebration of the First Amendment as did Justices William O. Douglas and William Brennan Jr. in days of yore. It was not always thus. His first term with the high court, Justice Thomas handed those who questioned his commitment to individual rights a very large club — his 1992 dissent in Hudson v. McMillian. Two guards had beaten Keith Hudson, an inmate at the Angola State Penitentiary in Louisiana, so brutally that his face was swollen, his teeth were loosened, and his partial dental plate was cracked. One guard had held him while the other kicked and punched him. Their supervisor, watching approvingly, had warned them “not to have too much fun.” Seven members of the Supreme Court had no trouble finding this to be cruel and unusual punishment. But Thomas said that Hudson had only suffered “minor injuries” and, more to the constitutional point, the protections of the Eighth Amendment did not apply to prison inmates. The justice’s ardent detractors have been citing this case ever since. Still, Thomas continues to be seen by many as primarily and stubbornly implanted on the far right wing of the Court. Many blacks regard him as a traitor to his race. The late A. Leon Higginbotham Jr., a widely admired federal appellate judge, once furiously urged a black bar association to rescind a speaking invitation to Thomas. But, maybe, those defenders of individual rights need to take a closer look. At least when it comes to free speech — the quintessential right of all Americans — Clarence Thomas understands the Constitution. Just look at the record. An unprecedented gag rule came before the Court for review in Avis Rent A Car System v. Aguilar. In this hostile-work-environment case, the California Supreme Court had narrowly affirmed a permanent prior restraint on speech. Prohibited was a list of “offensive, discriminatory words.” (The plaintiff employees had also won $135,000 in damages under the California Fair Employment & Housing Act.) These particular words were forbidden even if they were spoken outside the presence of those employees and even, as dissenting state Justice Stanley Mosk wrote, “if the words were welcome or overtly permitted.” Moreover, for the first time in American jurisprudence, an appeals court had instructed a trial judge to promulgate a list of specific words that could no longer be uttered in a particular workplace, regardless of context. This pernicious example was already being followed: In San Mateo County, Calif., the Avis decision was cited in placing a prior restraint on an entire police department after a jury found that a cop had made a racist remark. In a long dissent, Justice Thomas was the only member of the U.S. Supreme Court to protest its denial of review in Avis. Not even Justice John Paul Stevens seemed sufficiently troubled by this unprecedentedly broad prior restraint of speech. Teaching basic First Amendment law to his silent brothers and sisters, Thomas wrote: “A theory deeply etched in our law [is that] a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable. … We must remember that we deal here with a claim at the core of the First Amendment.” That’s the kind of First Amendment thinking that William O. Douglas would have joined. Though Douglas and Thomas would have disagreed in many cases, the two are similar in their vigorous clarity on the matter of free speech. In another case this term that the Supreme Court did hear, the issue was the requirement in �505 of the Telecommunications Act of 1996 that cable television channels must protect children by scrambling or blocking sexually oriented but nonobscene programming. Alternatively, cable channels could choose to limit sexually oriented programs to late-night hours. Thomas provided the swing vote in the 5-4 decision in United States v. Playboy Entertainment Group, written by Justice Anthony Kennedy, that struck down this provision. In opposition was a coalition of Chief Justice William Rehnquist and Justices Scalia, Sandra Day O’Connor, and Stephen Breyer. This was the first time that the Court applied the highest standard of First Amendment protection — “strict scrutiny” — to cable programming. In his concurring opinion, Thomas aimed at the core of the Clinton Justice Department’s frequent discounting of the First Amendment — as in the department’s fortunately unsuccessful support of other Telecommunications Act provisions aimed at “indecent” or “offensive” speech in Reno v. American Civil Liberties Union (1997). Thomas wrote: “We have no factual finding that any of the materials at issue are, in fact, obscene [and thus unprotected speech.] …. The Government does not challenge that characterization in this Court, but asks this Court to ratify the statute on the assumption that this is protected speech. … I am unwilling to corrupt the First Amendment to reach this result. The ‘starch’ in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.” ‘RELIED ON ANONYMITY’ Don’t think that Justice Thomas’ faith in free speech is new this term. In an earlier 1995 decision often overlooked by his critics, McIntyre v. Ohio Elections Commission, Thomas concurred in a 7-2 decision upholding the core First Amendment right to anonymous political speech. The dissenters were Rehnquist and Scalia. A state statute prohibiting the distribution of anonymous campaign literature had been upheld by the Ohio Supreme Court. In an extended opinion — actually an absorbing footnoted lesson in early American history — Thomas reminded us (me, anyway) that John Peter Zenger became an icon of the free press not because of what he wrote, but because he refused to disclose the anonymous authors of attacks on the governor of New York that he printed. “The large quantity of newspapers and pamphlets the Framers produced during the various crises of their generation show the remarkable extent to which the Framers relied on anonymity,” wrote Thomas. Scalia, with customary scorn, said of the majority that they were ignoring “the considered judgment of the American people’s elected representatives from coast to coast [who had left this issue to the states].” The Court, snapped Scalia, “had discovered a hitherto unknown right-to-be-unknown while engaging in electoral politics.” Thomas, so long regarded as a Scalia subsidiary, countered: “While, like Justice Scalia, I am loath to overturn a century of practice shared by almost all of the States, I believe the historical evidence from the framing outweighs recent tradition. When interpreting other provisions of the Constitution, this Court has believed itself bound by the text of the Constitution and by the intent of those who drafted and ratified it.” The premier originalist on the Court was thus rebuked by his alleged acolyte. Scott Douglas Gerber, in his illuminating book, “First Principles: The Jurisprudence of Clarence Thomas” (New York University Press, 1999), makes a good point: “People judge Justice Thomas, as they judged nominee Thomas, in almost purely partisan terms. … This is not scholarship or journalism. This is advocacy.” During his confirmation hearings — apart, if that’s possible, from Anita Hill’s accusations — Thomas was mocked by many scholars and journalists for what they considered his weak grasp of the Constitution. Many of his views are certainly arguable (by me, at least). And he can be fiercely stubborn at the wrong times (as when he recently refused to grant Gary Graham a deserved stay of execution and joined Scalia’s futile denial of the constitutional justification for the Miranda warnings). But give him his due: Justice Clarence Thomas has revealed a considerable intelligence and a powerful understanding of the First Amendment. Nat Hentoff is a longtime columnist for the Village Voice , a syndicated columnist for United Media/NEA , and a columnist for Editor & Publisher magazine. He has written numerous books, including “Living the Bill of Rights” (1998) and “Speaking Freely” (1997).

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