First Amendment expert Eugene Volokh asks the following question:
James E. Graves, Jr., a Mississippi Supreme Court Justice, has been nominated to serve on the U.S. Court of Appeals for the Fifth Circuit. The Senate Judiciary Committee will be considering his nomination at a hearing next Wednesday, September 29. And while I know only one small corner of Justice Graves’ work, I hope the Committee asks him a question about this corner.
Here’s the issue: In 2004, 2008, and 2009, the Mississippi Supreme Court considered whether state judges should be disciplined for their out-of-court statements that express hostility to particular groups. The key question in each case was whether the judges’ speech was protected by the First Amendment.
In 2004, Justice Graves took the view that a judge was not constitutionally protected against being disciplined for saying (in a letter to the editor of a local newspaper, and in a radio interview) that “gays and lesbians should be put in some type of mental institute.”
In 2008, Justice Graves also took the view that a judge was not constitutionally protected against being disciplined for saying (at a judicial seminar) that “African-Americans in Hinds County [where the judge was serving] can go to hell for all I care.”
But in 2009, Justice Graves took the view that a judge was indeed constitutionally protected against being disciplined for saying (in a speech to a political organiation) that “White folks don’t praise you unless you’re a damn fool,” and “If you have your own mind and know what you’re doing, they [white folks] don’t want you around.”
This particular mix of results strikes me as hard to defend under the First Amendment.[Excerpted from Speech Hostile to Gays Constitutionally Unprotected, Speech Hostile to Whites Constitutionally Protected?, at Volokh.com]
There's more, but Volokh doesn't mention what's obvious from Justices Graves's photograph, above right. Every American schoolchild has been taught the history of the civil rights movement, which will tell you that Mississippi is full of racists. Everyone who's been to a Hollywood movie can tell you the same thing.
My theory is that Justice Graves is one of those Mississippi racists you've heard about. He's just a different color from the old ones.