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Black history: Thurgood Marshall and the First Amendment


Very few Supreme Court justices have championed the First Amendment as consistently as Thurgood Marshall, the Court’s first black justice. During his 14-year tenure on the Court, Justice Marshall sided with the freedom of speech and the press in several landmark cases which set the precedent for the modern interpretation of the First Amendment we are familiar with today.

Born in Baltimore in 1908, Marshall had ambitions of studying law from a young age. After graduating from Lincoln University with a degree in American literature and philosophy, Marshall sought to continue his education in law school. Unable to attend the University of Maryland for law school because of the institution’s segregation policy, he enrolled in Howard University School of Law. Marshall graduated top of his class in 1933. His time at Howard increased his interest in politics and activism, refining his passions for becoming a lawyer.

Marshall was appointed to the Supreme Court in 1967 by Texas State alumnus Lyndon Baines Johnson, becoming the first black American to hold the position of associate justice. Marshall’s background as Chief Counsel for the NAACP Legal Defense and Educational Fund and Solicitor General of the Johnson Administration (the first Black person to hold the position as well) made him a strong candidate for the office, which he was confirmed to by the Senate in a 69-11 vote.

Pertaining to Marshall’s defense of the First Amendment, he is best known for Stanley v. Georgia and Brandenburg v. Ohio, the former referring to private possession of obscene materials and the latter concerning hate speech. In Stanley v. Georgia, Marshall famously wrote in his opinion, “If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his house, what books he may read or what films he may watch”. His involvement in Brandenburg v. Ohio is exceptionally interesting because he sided with the Klan’s right to hate speech, despite being an affected individual of said speech because of his race.

Other significant cases Marshall sided on include Cohen v. California, where he sided with the majority opinion the government cannot restrict the use of the word “fuck” on the basis of the word alone, and Miller v. California, where he dissented against the Court’s opinion obscene language must have artistic value.

Justice Marshall’s commitment to the First Amendment extended to students. He sided with the majority in Tinker v. Des Moines, permitting students the same degree of freedom of expression as legal adults. Later in his tenure, he dissented in both Bethel v. Fraser and Hazelwood v. Kuhlmeier when the Court ruled against the student rights to freedom of speech and the press. To Marshall, every American deserves unrestricted rights enumerated in the First Amendment regardless of age, something even the rest of the liberal judges of the Burger and Rehnquist Courts fell short on consistently.

The statement best representing Marshall’s judicial philosophy is his quote, “You do what you think is right and let the law catch up”, something his opponents criticized as judicial activism or “legislating from the bench”. But few can disagree that the scope of the First Amendment Americans enjoy today would be unrecognizable without the commitment to liberty and incredible foresight Thurgood Marshall practiced from the bench during his time on the highest court in the land.


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