> As Justin knows, the U.S. constitution as originally understood does not
> protect free speech against state and local restrictions, only against
> laws
> made by congress or at most restrictions of free speech by the federal
> government. It was only in the 20th century that meaningful guarantees of
> free speech were extended to the States. So perhaps, to be generous to
> Thomas, this is what he actually meant.
That's still too generous to Thomas, because even granting that his opinion is grossly misleading. He never directly confronts that the First Amendment was not even available to challenge what happened in state public schools until the passage of the 14th, and then he cites ninetheenth- and early twentieth-century, post-14th amendment state court cases in which speech was regulated, but fails to mention that in those cases the litigants never even claimed the protection of the 1st, and hence that wasn't even in issue. During the time period between passage of the 14th and when incorporation through it's "due process" provision began in earnest, the Supreme Court had quickly read what was meant to be the incorporation provision (privileges and immunities clause) out of the 14th Amendment, and so most people thought it was essentially a dead Amendment. Thomas doesn't mention that either. He does point out that states had their own free speech guarantees in their constitutions, but doesn't bother to explain the relevancy of that fact--it's not relevant. So it's not that it was being fought and losing. It was never being fought at all during the time period in which the cases he relies on were decided.
> But even being generous to Thomas, if he does actually mean to say that
> the
> Constitution as originally understood does not extend First Amendment
> protections to actions of the various states, then his program is much
> more
> that of a radical reactionary than most people understand. That would
> mean
> he believes that New York State can pass a law banning rallies by
> "subversive" parties and the U.S. constitutions has nothing to say about
> it.
There's no doubt he is the most reactionary member. Scalia will not even join his more eccentric opinions, including the one under discussion. He has actually written (repeatedly, I think) that he believes the establishment clause does not apply to the states: "I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment. See Zelman, 536 U.S., at 679, and n. 4 (Thomas, J., concurring). But the Establishment Clause is another matter. The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause."
http://www.law.cornell.edu/supct/html/02-1624.ZC2.html
So he certainly would rule, at least, that if New York passed a law mandating that every person attend a Baptist church on Sunday, the U.S. Constitution has nothing to say about it. I seem to remember another opinion in which he based that conclusion on the language of the Amendment, which places restrictions only on "Congress."