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“Our entire constitutional heritage rebels at the thought of giving government the power to control men’s minds.” This majestic passage from Stanley v. Georgia (1969) was authored by Justice Thurgood Marshall, a man best known for his civil rights legacy and Supreme Court advocacy, but who should also be recognized for his commitment to freedom of expression and thought. 

Marshall argued 32 cases before the Supreme Court during his career, winning 29 of them. Many of these were historic civil rights victories. As a result of this record he was legendary, and as a result of his heritage, his career was historic. He was the first African American to serve as U.S. Solicitor General and the first to serve on the Supreme Court. President Lyndon B. Johnson made Marshall’s historic appointment to the Court of Last Resort in 1967, where he served until 1991. 

But Marshall was also a . Consider Procunier v. Martinez (1974), in which the Court addressed California Department of Corrections rules related to the censorship and reading of inmate mail. The Court invalidated some of the restrictions, but Marshall cut deeper in his concurring opinion, emphasizing the importance of inmates receiving outside mail: 

The First Amendment serves not only the needs of the polity, but also those of the human spirit — a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual's worth and dignity. 

In other Supreme Court cases involving the rights of the incarcerated, he dissented, accusing his colleagues in the majority of giving short shrift to the notion that prisoners are human beings, more than just “slaves of the state.” In one dissent, he wrote that courts should not “blindly defer to the judgment of prison administrators.” 

Marshall’s jurisprudence on public employee free-speech rights was arguably even more impressive. He authored the Court’s majority opinion in Pickering v. Board of Education (1968), still the Court’s seminal decision for public employees. The case involved a high school teacher named Marvin Pickering, who was fired for sending a letter to his local newspaper criticizing the local school board for giving short shrift to academics and spending too much money on athletics. 

Marshall emphasized that public employees do not lose all of their free-speech rights when they accept public employment, often retaining the ability to speak out on matters of public concern or importance. He created the language that formed the basis of the Pickering balancing test: “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

Marshall also famously warned in Rankin v. McPherson (1987) that “[v]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech.”

While he did not write the majority opinion in the historic free speech case Tinker v. Des Moines Independent School District (1969), in which the Court determined that students have the free speech right to wear black peace armbands in public schools, Marshall did question the attorney representing the school board. He incredulously commented, “seven out of eighteen thousand, and the school board was concerned that seven students wearing armbands would disrupt eighteen thousand.” 

It was obvious to all where Marshall stood in the case — on the side of the students who peacefully protested. 

Marshall also authored a short dissenting opinion in Bethel School District v. Fraser (1986), which carved out an exception for student speech that was considered vulgar or lewd. The Court voted 7-2 in favor of Washington school officials, who disciplined a student for giving a nominating political speech laced with sexual innuendo. To the majority, the speech was immature and beyond the boundaries of socially appropriate behavior. Marshall, however, questioned the broad deference given to school officials, writing in his dissent that “where speech is involved, we may not unquestioningly accept a teacher’s or administrator’s assertion that certain pure speech interfered with education.”

Marshall showed sensitivity to freedom of expression even in cases involving threatening expression. Consider his concurring opinion in , a prosecution of a man who walked into a hotel coffee shop in Louisiana and announced that he was Jesus Christ, opposed President Richard Nixon visiting China, and said that he would go to Washington D.C. to kill the president. The Court reversed the conviction based on improper judicial comments to the jury, but Justice Marshall had serious First Amendment concerns with convicting a person under an anti-threat statute unless the defendant subjectively intended the statements to be threatening. The jury instructions in the case allowed the jury to convict Rogers if a reasonable person would interpret the statements as threatening. To Justice Marshall, this was a negligence standard insufficient to protect freedom of expression. He instead interpreted the anti-threat statute “to require proof that the speaker intended his statement to be taken as a threat, even if he had no intention of actually carrying it out.”

A chief methodological tool in First Amendment law is determining whether a law is content-based or content-neutral, and Marshall also contributed mightily to First Amendment doctrine in this vein. The ultimate concern is that when the government discriminates against speech based on content, it is engaging in a type of attempted thought control. “To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship,” Marshall wrote in Chicago Police Department v. Mosley (1972). “The essence of this forbidden censorship is content control.”

In the Chicago case, an African American man protested outside of a Chicago high school he believed engaged in racially discriminating hiring practices. He was cited for violating a city ordinance prohibiting picketing within 150 feet of a public school. But the ordinance had a content discrimination problem because it allowed labor picketers. Thus, under the ordinance, labor picketers were favored and other picketers, like Earl Mosley, were disfavored. This was unacceptable to Justice Marshall. He saw this as classic content discrimination and famously wrote, “above all, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” 

First Amendment freedoms developed during the Civil Rights Movement

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Countless courts have cited this memorable passage when discussing the content discrimination principle. In the case, Marshall also explained that when the government favors one group of speakers over another, it violates not just the First Amendment but also the Equal Protection Clause of the Fourteenth Amendment — connecting Marshall’s free speech advocacy with his civil rights advocacy. 

Marshall was also the first justice to use the exact phrase “right to receive information and ideas.” In First Amendment law, we consider not just the free-speech rights of the speaker but also the expression rights of the listening or consuming public. The right to receive information and ideas is a profoundly important free-speech principle that courts have recognized in numerous circumstances, such as the censorship of library books, the suppression of truthful commercial speech, and the videotaping of the police. 

In the aforementioned Stanley v. Georgia, a case involving an invasive search of a man’s home that turned up allegedly obscene films, Marshall explained that this right applied no matter the “social worth” of the underlying material. He also emphasized that freedom of expression is inextricably intertwined with privacy, writing that “if the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”

Thurgood Marshall was a giant in American law and culture. His civil rights legacy and Supreme Court advocacy are rightfully honored. But his steadfast commitment to freedom of expression should be equally celebrated. Marshall refused to accept the idea that the government could limit or prohibit speech, whether the speaker was an inmate, employee, or student. These individuals retained the right to individual self-fulfillment and often contributed mightily to public discourse. Marshall was one of the Court’s First Amendment stalwarts and his opinions contained passages that have become First Amendment lore. For this, he should be known not just as a steadfast champion of civil rights, but also as a titan in the fight to preserve free expression.