Fall 2005 newsletter
Georgia FOI Access
Georgia First Amendment Foundation

Justice Thomas is a defender of ‘anyone wishing to express his thoughts on candidates or issues’

 By Tom Bennett

Lilburn, Ga., Nov. 2, 2005 – A Georgian, Clarence Thomas, has made a strong defense of the First Amendment on the U.S. Supreme Court within the past 10 years, Charles D. Tobin reminds us at the start of his white paper, "From John Peter Zenger to Paul Branzburg: The early development of journalist’s privilege."

In McIntyre v. Ohio Elections Commission in 1995, Justice Thomas of Pinpoint, Ga., supported the First Amendment rights of an anonymous election pamphleteer., according to Tobin. The latter is a onetime Florida reporter turned Washington, D.C. media lawyer who is a member of the firm of Holland & Knight LLP in the nation’s capitol.

The 1990’s Ohio pamphleteer protected by Justice Thomas deserved protection to write anonymously just as did "Leonidas" in 1779, in the justice’s words. "Leonidas" was a Philadelphia newspaper columnist of the Revolutionary era. He blamed the Continental Congress for inflation, and "accused its members of embezzlement," Justice Thomas wrote in his 1995 opinion.

Tobin observes: "To Justice Thomas… the framers intended the Bill of Rights to protect anyone wishing ‘to express his thoughts on political candidates or issues.’"

In many a newsroom, there’s a decided queasiness about glib and frequent use of confidentiality. Yet, as Tobin points out, Alexander Hamilton, John Jay and James Madison wrote under the pen name "Publius" in the Federalist Papers.

The chilling history of early government leaks investigations arrives in Augusta, Ga., in 1911, according to Tobin.

"An Augusta Herald reporter had refused to disclose to a police review board the name of an officer who had leaked information about a murder. The commission held the reporter and ordered him confined… In Plunkett v. Hamilton, the Georgia Supreme Court marginalized the journalist’s assertion that revealing his source would "cause him the forfeiture of an estate, to wit, it would cause him to lose his means of earning a livelihood."

(Georgia’s 1990 Shield Law provides "a qualified privilege against disclosure of any information … obtained in the gathering… of news." It is one of the resources of this Georgia First Amendment Foundation web site at:

THE AUGUST 2004 "MLRC White Paper on the Reporter’s Privilege" includes Charles D. Tobin’s article. It was excerpted by Tobin for his lecture Sept. 29 at the annual Alabama Center for Open Government luncheon. This occurred coincidentally on the same day that Judith Miller of the New York Times was released from jail in Alexandria, Va. Tobin had been the seventy-fifth person to visit her there during her confinement while protecting her source.

Tobin advised from the podium to get this work, and it was provided to me by the Atlanta law firm of Dow Lohnes & Albertson, a MLRC newsletter subscriber. The White Paper was made possible by a grant from the McCormick Tribune Foundation.