Posted on 10/30/2005 6:56:23 PM PST by SteveH
Alito and free speech
This weekend, in anticipation that Judge Sam Alito may be the President's next nominee to the Supreme Court, your reading pleasure can include boning up on the judge's approach to the Second Amendment, learning his thoughts on federal jurisdiction, and perusing a useful general profile at law.com. Here's a review of important opinions Alito has penned on the Third Circuit about freedom of speech under the First Amendment. Tomorrow I will look at Alito's major work on Free Exercise and Establishment of Religion.
These opinions were written by someone not appearing to be disposed to defer to government when it encroaches on the free speech rights of its constituents. You'll see in my first example that it was unusual for him to have written an opinion at all, and remarkable having decided to write an opinion that he would provide such a detailed analysis of the First Amendment claim asserted. He comes across as a friend of free speech. I regret that two of the three examples involve religious expression, because there's no doubt that his fine work will be dismissed as a conservative Catholic judge imposing his viewpoints on us all.
Viewpoint discrimination: Religious expression in public school
We begin with C.H. v. Oliva, in which the court en banc dismissed a First Amendment claim of a minor student and his guardian ad litem on a procedural defect. Judge Alito penned a lengthy dissent, arguing that defendants hadn't sought dismissal on that ground, the ground didn't exist anyway, and, more provocatively, that "the court ducks the issue and bases its decision on a spurious procedural ground" -- charged language. (As Prof. Kerr points out, Alito's nickname "Scalito" is clever but inappropriate. A review of Alito's opinions reveals little of the, let's call it élan, of Scalia's opinions.)
Alito is right that dismissing a complaint on a procedural ground the defendants never raised, where a reasonable reading is that the matter is alleged ("pleadings shall be construed as to do substantial justice," says the Federal Rules of Civil Procedure) and which frankly will be cured by adding one sentence to the complaint on remand is unusual, not necessarily to say evidence of "ducking." More unusual is the balance of Alito's dissent, an argument that the plaintiff, on at least one of his counts, should have won.
Kindergarten student Zachary H. was assigned, with his class, the task of making a poster representing what he was thankful for, in the spirit of the Thanksgiving holiday. Zachary's poster included a picture of Jesus. The poster was displayed with his classmates' in the hall outside the classroom. On a subsequent day when Zachary's regular teacher wasn't in school, the poster was removed. Upon her return, the regular teacher retrieved the poster and hung it again, this time near the end of the hall in a less conspicuous place. (There was a second complaint involving a storybook in first grade that the Third Circuit agreed was properly dismissed.)
The en banc court dismissed the poster claim for failure to properly allege that defendant Pratt, the school principal, and others, were responsible for the removal of the poster. Judge Alito would have reached the merits and found the removal and relocation of the poster an unconstitutional "viewpoint based restriction" on expression under the First Amendment.
[V]iewpoint discrimination is prohibited even in a nonpublic forum if strict scrutiny cannot be satisfied, and discrimination based on the religious content of speech is viewpoint discrimination. It follows that public school authorities may not discriminate against student speech based on its religious content if the discrimination cannot pass strict scrutiny.
The Establishment Clause was no help to the defendants:
[A] reasonable observer would not have viewed the exhibition of Zachary's Thanksgiving poster along with the secular posters of his classmates as an effort by the school to endorse religion in general or Christianity in particular. An art display that includes works of religious art is not generally interpreted as an expression of religious belief by the entity responsible for the display. Even the amici supporting the defendants acknowledge that "[d]isplay of student artwork with religious themes is understood to be the personal expression of the student and not that of the school."
Judge Alito notes that by affirming the dismissal, the court wasn't really avoiding reaching the First Amendment issue, it was endorsing a flawed view of First Amendment jurisprudence:
In affirming the judgment of the district court, the panel took the position that a public school is free to practice viewpoint discrimination in regulating student speech in class and in assignments, provided only that the discrimination is "reasonably related to a legitimate pedagogical concern." Moreover, the panel held that avoiding the possibility of "resentment" by parents is a legitimate pedagogical concern. According to the panel, then, if public school authorities could reasonably think that a student's expression of a particular viewpoint in a class discussion or assignment could cause "resentment" on the part of other students or parents, the school may censor the student's speech.
The panel's view is radically at odds with fundamental First Amendment principles. As previously discussed, viewpoint discrimination strikes at the heart of the freedom of expression. And in order to restrict core First Amendment speech, much more is needed than the possibility that the speech may cause resentment.
(Citations omitted.) Alito's choice to file an opinion not only dissenting from the procedural dismissal of the complaint but discussing its merits demonstrates, I think, an admirable commitment to First Amendment principles.
"Anti-harassment policy" vs. free speech
In Saxe v. State College Area School District, Judge Alito favored us with a majority opinion, touching the important issue of whether what is broadly regarded as "hate speech" is constitutionally protected. Alito and the court concluded it was.
Saxe, guardian of students enrolled in a school that had adopted an expansive "anti-harassment" policy, challenged the policy on the ground that it would punish Christian students who regard homosexuality as a sin and say so. The challenge was limited at the appellate level to the Free Speech Clause, not the Free Exercise Clause. The District Court held that "[h]arassment has never been considered to be protected activity under the First Amendment. In fact, the harassment prohibited under the Policy already is unlawful."
Writing for a unanimous three-judge panel, Alito said the "District Court's categorical pronouncement exaggerates the current state of the case law in this area."
There is of course no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause. But there is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs. When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications. "Where pure expression is involved," anti-discrimination law "steers into the territory of the First Amendment."
This is especially true because, as the Fifth Circuit has noted, when anti-discrimination laws are "applied to . . . harassment claims founded solely on verbal insults, pictorial or literary matter, the statute[s] impose[ ] content-based, viewpoint-discriminatory restrictions on speech." Indeed, a disparaging comment directed at an individual's sex, race, or some other personal characteristic has the potential to create an "hostile environment" -- and thus come within the ambit of anti-discrimination laws -- precisely because of its sensitive subject matter and because of the odious viewpoint it expresses.
(Citations omitted, ellipses in original.) The part of the opinion which argues against the District Court's blanket "harassment exception" to the First Amendment relies heavily on R.A.V. v. St. Paul, a landmark Scalia First Amendment opinion on the unconstitutionality of "hate speech" laws. The opinion goes on to note that the school's policy is more expansive than federal anti-harassment laws that many of us are familiar with. For example: "Unlike federal anti-harassment law, which imposes liability only when harassment has 'a systemic effect on educational programs and activities,' the Policy extends to speech that merely has the 'purpose' of harassing another." (Citation omitted.) After a lengthy analysis of the policy with an eye toward whether it was a permissible regulation of behavior in the limited rights environment of a school, Alito concluded the policy failed under the First Amendment.
Alcohol advertising/commercial speech
In 2004's The Pitt News v. Pappert (link is a PDF), Alito and a unanimous panel struck down an eight year old Pennsylvania law making it illegal for college newspapers to take money for alcohol advertisements. (The state had tried to avoid a First Amendment issue by not prohibiting the promotion of alcohol, but rather getting paid to do it. Alito remarked, "If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment.")
The paper's complaint included an Equal Protection element, but its First Amendment claim is of interest to us. Alito concluded the law was "unconstitutional as applied to The Pitt News for two reasons. First, the law represents an impermissible restriction on commercial speech. Second, the law is presumptively unconstitutional because it targets a narrow segment of the media, and the Commonwealth has not overcome this presumption."
The law failed as a permissible regulation of commercial speech because it did little to remedy the legitimate problem the government was addressing: underage drinking. The law, Alito noted, "applies only to advertising in a very narrow sector of the media (i.e., media associated with educational institutions), and the Commonwealth has not pointed to any evidence that eliminating ads in this
narrow sector will do any good."
The law failed as well as an unjustifiable financial burden on a particular segment of the media.
[C]ourts must be wary that taxes, regulatory laws, and other laws that impose financial burdens are not used to undermine freedom of the press and freedom of speech. Government can attempt to cow the media in general by singling it out for special financial burdens. Government can also seek to control, weaken, or destroy a disfavored segment of the media by targeting that segment....
To prevent such abuse, laws that impose special financial burdens on the media or a segment of the media must be carefully examined. A law is presumptively invalid if it “single[s] out the press” or “a small group of speakers.”
While eminent domain, the Commerce Clause and abortion/right to privacy are more in the minds of Court watchers and Senators these days, firm footing on free speech and the rest of the First Amendment is obviously an important trait in the next Associate Justice. Judge Alito appears to be well grounded there.
How many conservatives will take their ball and go home just because Luttig didn't get picked? Redstate.org is quoting rumors that Bush is concerned Luttig will "grow" in office, and I think we all know what that means.
There is a handful of malcontents who will be p*ssed no matter who is picked because they have their minds made up that President Bush is planning to nominate a bunch of Souters. Then you have those who will be p*ssed because their pet nominee isn't selected (Alito, Luttig, Brown, etc.).
If Alito or Brown are the nominees you'll see little if any complaining.
Will anyone out there be "p*ssed" if Bush selects Alito, Luttig, or Brown . . . anyone? Nope, didn't think so. Don't try to rationalize the Miers mistake by claiming that any candidate would have drawn the same criticism. This characterization of the ani-Miers crowd as mindless Bush-haters is intellectually dishonest.
Don't put words in my mouth. I said there would be a "handful" who will oppose anyone the President nominates. You know as well as I do that there will be a few here who will do just that.
("Denny Crane: Gun Control? For Communists. She's a liberal. Can't hunt.")
Coulter has lost a lot of respect lately by her trashing of the President, her whoring out to the MSM, and her venomous attacks on Roberts and Miers. Disagree about Miers is fine but saying she isn't qualified because she went to SMU and that means she is stupid, is just very childish.
Luttig is also best friends with Roberts and is close with Scalia and Thomas.
Basically, the 4 of them are like a clique, if Luttig "grows", that means all 4 of them are changing.
That said, Alito is solid as it Luttig, and either one of them would make me happy.
I prefer Luttig based on his age alone, but both would be fine.
Like the War over Roberts? Wow, that was intense. Ann Coulter had some skeptical columns and that was about it.
If that's what you meant than I don't see the point you were making. You can always find a few people who are unreasonable no matter what the issue. There are a handful of people who would oppose President Bush if he decids to nominate Alito to the Supreme Court, and there are a handful who would support him if he decided to nominate Bruce Babbit.
I agree. And Roberts is far more of a question mark than Alito, Luttig, or Brown.
I never mentioned Roberts in relation to a forum war. I said if it was Gonzales we'd see a forum war.
Does Luttig's view on "super-precedents" worry you at all? I think that is his only question mark, and what puts Alito above him on my list.
Pretty much. Ann was out virtually alone over Roberts, making claims we'll go ballistic over anyone dishonest.
People can check the FR poll over Roberts, overwhelming approval matching the level G.W.B. usually gets from Republicans in media polls. Anything suggesting otherwise is spin born of bitterness because we concluded Miers was a mistake.
Luttig, Alito, Jones, and Brown will NOT meet massive resistance or sour grapes by the vast majority. Always expect one or two to grumble, but the base will be with them.
If someone like Williams or Sykes, the base will be with them, though a little disappointed not the top tier of heavyweights. Nevertheless, they are solid and the objective is to fix the courts. We don't need our favorites to do that, these would be competant as would a dozen or so others.
Some have argued that remark on 'super precedent' was meant to be mocking if read in context of the opinion. I'm inclined to believe that to be the case though everyone would have to make their own call after reading it.
puh
lease.
It does concern me, he has that same type of Scalia thinking with stare decisis.
I'm not positive that Alito isn't the same way either.
I'd prefer a judge who doesn't respect stare decisis, and is more like Clarence Thomas.
The problem is that its hard to get judges who think more like Thomas and less like Scalia.
You didn't mention Roberts, you just said:
It doesn't matter who is picked. FR will see another forum war over the nominee.
Roberts was someone "who was picked." There was no forum war, battle, or even skirmish.
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