Is Justice O'Connor Chilling Protected Speech to Insulate Judges?

Speaking before a crowded auditorium at Goucher College in Towson, Maryland, on April 7, 2005, Supreme Court Justice Sandra Day O’Connor said she never anticipated her work as a judge would be accompanied by violent threats and said “thoughtful citizens” should demand an end to fiery extremism on either end of the political spectrum, according to the Baltimore Sun.

“It didn’t occur to me that there would be as many threats, and I do receive them,” O’Connor said. “I don’t think the harsh rhetoric helps. I think it energizes people who are a little off base to take actions that maybe they wouldn’t otherwise take.”

O’Connor said tensions have historically existed between Congress and the courts, but she added: “It isn’t any more pleasant today. … And I hope that we will see an end to this, but it won’t happen right away, and it will take the work of thoughtful citizens who say, ‘We don’t want to have this from either extreme, so let’s move on.'”

O’Connor’s sensitivity brings to mind the words of President Harry S. Truman, “If you can’t take the heat, get out of the kitchen.”

In the 2003 case, Virginia v. Black, Justice O’Connor wrote for the Supreme Court, holding that prohibiting cross burning in and of itself violates freedom of speech under the First Amendment. In order to punish cross burning, it must be accompanied by “an intent to intimidate a person or group of persons.” In other words, “Cross burning does not inevitably convey a message of intimidation.”

O’Connor stated:

    If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Thus, the First Amendment “ordinarily” denies a State “the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.”

    Thus, for example, a State may punish those words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” ??¢â???¬ ¦ We have consequently held that fighting words — “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction” — are generally proscribable under the First Amendment. ??¢â???¬ ¦Furthermore, the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. ??¢â???¬ ¦ And the First Amendment also permits a State to ban a “true threat.”

O’Connor included examples of nonintimidating cross burning:

    As the history of cross burning indicates, a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself. Thus, “burning a cross at a political rally would almost certainly be protected expression.”??¢â???¬ ¦ Indeed, occasionally a person who burns a cross does not intend to express either a statement of ideology or intimidation. Cross burnings have appeared in movies such as Mississippi Burning, and in plays such as the stage adaptation of Sir Walter Scott’s The Lady of the Lake.

Justice Clarence Thomas, the Court’s only black member, wrote a stinging dissent arguing that the act of cross burning is conduct that in itself conveys an intimidating threat of bodily harm or death to black citizens.

Those who’ve employed all manner of inflammatory rhetoric against President Bush’s judicial nominees are now criticizing those who dare to express any criticism of judges. It makes one wonder if Senate Democrats bent on abusing the filibuster to block up-or-down votes on the president’s nominees that they find “extremist,” would find Justice O’Connor’s cross burning rhetoric extreme. Don’t hold your breath.

Erwin Chemerinsky, a professor at Duke University School of Law, and a liberal’s liberal, posted the following comment on the “How Appealing” blog on April 12:

    The conservative attack on the courts is truly frightening and should be denounced by elected officials and academics across the political spectrum. Let there be no mistake: What these and other Republican leaders are objecting to is an independent judiciary where courts do not follow the commands of Congress or the president. They are seeking through intimidation, threats of impeachment and jurisdiction-stripping to keep the federal courts from enforcing basic constitutional principles, such as a separation of church and state.

This is typical liberal hypocrisy. Notice that Chemerinsky hasn’t simply called for reasoned rebuttal. He wants conservatives denounced for daring to criticize judges and suggesting anything as Constitutional as impeachment and jurisdiction-stripping. Isn’t it amazing how easily free speech frightens its so-called advocates?

Citizens fed up with judges whose activist opinions render the written Constitution virtually unrecognizable have little else than speech to convey the depth of their discontent. How else can they convince Congress that it’s past time to consider the constitutional tools at its disposal to rein in those judges whose opinions belie their oath to uphold the Constitution?

Thomas Jefferson voiced his condemnation of the judiciary in a letter to Monsieur A. Coray, October 31, 1823:

    At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.

Linking the “harsh rhetoric” of Americans concerned with abuse of power in the judicial branch to actual threats against judges has no basis in fact and chills protected expression, something the Court disdains and reminds us of each time it protects pornographers at the expense of children.

Since O’Connor expects black people to abide cross burning for the sake of free speech, one would expect her and other hypersensitive judges to live by the rules they impose on the rest of us.