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Alito on the First Amendment: excerpts from hearings

By First Amendment Center Online staff

Editor’s note: The following excerpts from Judge Samuel Alito’s confirmation hearings before the Senate Judiciary Committee were transcribed by The Washington Post.

Religious liberties, free exercise
SEN. SAM BROWNBACK (R.-Kan.): Let me go to a specific area you have written quite a bit about, and that’s on religious liberties and free exercise.

And I’ve looked at these cases. And this is going to be an active area of law in front of the Supreme Court. It has been for the last 40 years.

You wrote the case of ACLU v. Schundler, 3rd Circuit case considered ACLU challenge to religious displays erected by Jersey City on the plaza of city hall. Jersey City, for decades, it had holiday displays of menorah and Christmas tree. Litigation resulted in permanent pulling of this. The city came back, said, “OK, if that’s not good enough, we’ll put a nativity scene, a menorah, Christmas tree, Frosty the Snowman, Santa Claus, Kwanzaa symbols and signs explaining the display. So, OK, if two is not enough, we’ll add more into that.”

And they were again challenged by the ACLU. District court found no constitutional violation.

Panel 3rd Circuit, not including you, reversed that decision. Panel found no basis for the demystification approach, as they put it, and expressed skepticism as to constitutional display.

On remand, district court held that there was a constitutional violation. The city appealed. You sat on the panel that heard that appeal. In a 2-1 decision, you upheld the constitutionality of the modified display.

In your decision, you specifically cited Justice O’Connor and two particular issues regarding excessive entanglement with religious institutions and government endorsement or disapproval of religion.

Because Justice O’Connor used these factors to uphold similar displays in prior cases, you applied them to your upholding that case. That’s a correct interpretation; is that correct?

ALITO: Yes, it is, Senator.

BROWNBACK: Because these are coming up so much in front of the court, are these types of displays, you feel — generally — constitutionally permissible?

ALITO: Well, this is an area in which the Supreme Court has handed down several decisions. And like a number of the issues that the Court has addressed under the establishment clause, it has drawn some fairly fine lines.

The first case involving a display of this nature was the Pawtucket, R.I., display that was involved in Lynch v. Donnelly. And it was a display that was similar to the display in Jersey City. It included both religious and secular symbols. And they found that that was not a violation.

BROWNBACK: I want to jump in here, because I’ve several areas I want to go at. When I read your opinions, what I hear you to write is you would rather have a robust public square than a naked public square; that you think there is room for these sorts of displays in the public square.

ALITO: Well, that was exactly what Jersey City had decided in that case. And Jersey City said: We are one of the most religiously diverse, ethnically diverse, racially diverse communities you will find anywhere in the country. This is right across the New York harbor from the Statue of Liberty and from Ellis Island, and it’s still an entry point for a lot of people coming into the country.

And so they have — over the course of the year at the appropriate time they had a Christmas display, they had a display of a menorah. On that particular year, Hanukkah was early in the month of December, so the menorah was up at a different point. They had celebrations for Muslim festivals, for Hindu festivals, for Buddhist festivals, for Latino festivals, for festivals concerning the many ethnic groups in the community.

And their view was that this is the way we should show that all of these groups are valuable parts of our community and express our embracing of them. And this display, they said, reflected that philosophy and, applying the precedents that the Supreme Court had provided in this area, the Pawtucket case.

And in a later case involving a display in Pittsburgh, Judge Rendell and I, who were the judges in the majority on that case, said this is constitutional; this is consistent with the establishment clause.

BROWNBACK: And that’s what — as we’ve had this 40 years of cases, I really hope we can have a public square that celebrates and not that’s got to be completely naked to those views. And I appreciate that.

You wrote in a free-exercise case, C.H. v. [Oliva]. You heard a case in which a child sued through his parents for violation of his free-speech and free-exercise rights when his school removed and repositioned a poster he had made of a religious figure that was important to him. It was a picture of Jesus. The poster was part of an assignment where students were instructed to show something for which they were thankful.

The district court granted judgment in the pleadings in favor of the defendant, the school district. The 3rd Circuit affirmed.

You dissented in that opinion. Can you elaborate on your reasoning in that particular opinion? Do you remember the case?

ALITO: Yes, Senator, I do.

Justice O’Connor pointed out something that’s very critical in this area. She said there is a big difference between government speech endorsing religion and private religious speech. And private religious speech can’t be discriminated against. It has to be treated equally with secular speech.

And in this case, this involved a student who — and there were two incidents. One involved reading. The students in the class were told that if they could read at a certain level, their reward would be to be able to read their favorite story to the class.

And this student satisfied those requirements. And the student wanted to read a very simplified version of the story of Jacob and Esau to the class. And the teacher said, “No, you can’t read that to the class. You can read that privately to me off in a corner.”

And then Thanksgiving was coming along, and the students were told, “Draw a picture of something that you are thankful for.”

And I guess the teacher expected they were going to draw pictures of football games and turkeys and things like that, but this student drew a picture of Jesus and said, “That’s what I am thankful for.”

And the teacher put all the other pictures up in the hall, but would not put this student’s picture up in the hall because of its religious content.

And that, we found, was a violation of this principle that you have to treat religious speech equally with secular speech.

If you ask a student to say something about a topic — “What are you thankful for?” — and the student and the student says something that fits within the topic that the student was asked to talk about, then you can’t discriminate against one kind of speech or another.

Establishment clause
SEN. RICHARD DURBIN (D-Ill.): You’ve heard some questions about religion in our diverse society under the Constitution. You’ve heard some questions from the other side about it, from Senator Brownback, Senator Cornyn and others. And I would like to try to get into this a little bit.

There seems to be a debate within the Court between two standards for judging conduct as to whether it’s constitutional in relation to freedom of exercise of religion, as well as establishment. And the two theories, if I can describe them quickly, are the Lemon theory, which has three tests, that the Burger Court came out with in 1971, and the new coercion theory.

Are you familiar with both of those theories?

ALITO: I am. And there’s actually a third theory, the endorsement test.

DURBIN: Where do you come down? So you subscribe to any one of those as an accurate analysis of what the founding fathers meant under the establishment clause?

ALITO: I don’t think the Court has settled on any single theory that it applies in every case. There are cases in which it finds the Lemon theory, the Lemon test, which now has [three] parts, whether the statute has — whether whatever is at issue has a secular purpose and whether the primary effect is to advance or inhibit religion [and whether it promotes “an excessive entanglement with religion”]. There are instances in which it applies that. It tends to apply that in cases involving funding.

There is the endorsement test, and it applies that in certain cases. Typically, it applies those in cases involving things like the displaying of symbols that have religious significance.

So it itself has not found a single test that it applies in all of these cases.

DURBIN: Well, where are you? If the Court is divided, and it appears it is, where do you come down? Please tell me.

ALITO: Well, I do not myself have a grand, unified theory of the establishment clause. As a lower court judge, of course, my job has been to apply those precedents. And this is an area in which I think the Court has been — you can just see by the number of cases that it has decided, it has been attempting to find the best way of expressing its view of what the establishment clause requires.

I certainly agree that it embodies a very important principle and one that has been instrumental in allowing us to live together successfully as probably the most religiously diverse country in the world and maybe in the history of the world. It’s a very important principle. But I, myself, do not have a grand unified theory of this.

DURBIN: Let me ask you a few starting points: The question was asked of John Roberts about his personal, religious and moral belief. And I would ask you, in the most open-ended fashion.

We all come to our roles in life with life experience and with values. When you are calculating and making a decision, if you were on the Supreme Court, tell me what you are personal, religious, or moral beliefs — what role that will play in that decision process.

ALITO: Well, my personal religious beliefs are important to me in my private life. They are an important part of the way I was raised and they have been important to Martha and me in raising our children.

But my obligation as a judge is to interpret and apply the Constitution and the laws of the United States and not my personal religious beliefs or any special moral beliefs that I have.

And there is nothing about my religious beliefs that interferes with my doing that. I have a particular role to play as a judge. That does not involve imposing any religious views that I have or moral views that I have on the rest of the country.

[DURBIN:] That is virtually the same answer given by Justice Roberts. And I think, from my point of view, that is the right answer. It’s the same challenge many of us face on this side of the table with decisions that we face.

Now, I asked Judge Roberts the following: Does the free-exercise clause, in addition to the establishment clause — does it protect the right of a person to be respected in America if they have no religious beliefs — the nonbelievers?

ALITO: Yes, it does. It is freedom to worship or not worship as you choose. And compelling somebody to worship would be a clear violation of the religious — the religion clauses of the First Amendment.

DURBIN: Let me go to a specific case: Black Horse Pike Board of Education case (ACLU of New Jersey v. Black Horse Pike Regional Board of Education, 1995), which you were involved in. And it’s an interesting case. And I hope this fact pattern I described to you is correct.

The school board policy allowed the seniors at this school to vote on having a graduation prayer. And the decision was suggested whether that was coercing students who didn’t agree with that religious prayer or had no religious belief.

What is your feeling or what was your feeling at that time when it came to that decision?

ALITO: Well, that was a case that followed Lee v. Weisman (1992) and preceded the Santa Fe case (Santa Fe Ind. School District v. Doe, 2000), which dealt with a prayer before a football game. Lee v. Weisman involved a situation in which the principal — and that was the most directly relevant and a rather recent precedent at the time of the Black Horse Pike case.

In Lee v. Weisman, the principal of a middle school, as I recall, decided that there would be an invocation at the middle school graduation and selected a member of the clergy, a local rabbi, to deliver the prayer and specified the nature of the prayer that would be appropriate for the circumstances. The Supreme Court held that that was a violation of the establishment clause.

The case that we considered in the Black Horse Pike case involved a situation in which the high school left it up to the students through an election to decide whether there would be a prayer at the high school graduation and left it up to them to select the person who would conduct the prayer, the student who would lead them in the prayer, if they decided by a vote to do that.

So our job at that point was to decide whether this fell on one side or the other of a line that I referred to earlier which Justice O’Connor very helpfully — the distinction that she drew between government religious speech, which is not allowed, and private religious speech, which is protected. The government itself cannot speak on religious matters, but the government also can’t discriminate against private religious speech. And what you have here …

DURBIN: This is with respect to the [Oliva] case, where the student comes up with the drawing of Jesus, and that is a voluntary, personal and private expression, as you have described it.

ALITO: That’s correct. And the Supreme Court has recognized this in a number of cases. In the Rosenberger case (Rosenberger v. Rector & Visitors of the University of Virginia, 1995) and the Good News Club case (Good News Club v. Milford Central School, 2001) and the Lamb’s Chapel case (Lamb’s Chapel v. Center Moriches School District, 1993), they’ve drawn this distinction.

So here we had a situation involving an election by the students to pick somebody to lead them in prayer, and which side of the line did it fall on? Well, it wasn’t individual student speech, but it was collective student speech by way of an election. And that was what we had to decide, which side of the line it fell on. Judge Mansmann, who wrote the opinion that I joined in that case, explained why we thought it fell on the side of the line of individual student speech.

DURBIN: Let me ask you about that; let me explore it for a second. You are dealing with a school board policy. A school board is a government agency. They’ve set up the policy, so it is not coming entirely from a voluntary personal situation like the [Oliva] case. And you know that the majority is going to rule in the decision on whether there will be a prayer and what the substance of the prayer will be.

How, then, could you respect the rights of the minority, including people with different religious beliefs and nonbelievers, if you leave it up to a majority vote?

ALITO: Well, that factor is why it was a case that didn’t — there could be a debate about which side of this line it fell on. Now, I think there also was a disclaimer that was distributed at the time of the graduation explaining to anybody who was in attendance that the prayer was not endorsed — if there was a prayer, it wasn’t endorsed by the school board and that this was a decision of the students.

There are factors there that fall on one side of the line. There are factors there that point to the case being put on one side of that line, factors that point to putting the case on the other side of the line.

And Judge Mansmann’s opinion explained why she thought — and I agree that it would fall on the private student speech side of the line. But it was a question that was debatable.

And then the Santa Fe case came along later. It didn’t involve exactly the same situation, but it involved the related situation — and that is now the Supreme Court’s expression of its opinion in the form of a precedent on the application of this test that I’ve been talking about, a situation like this.

DURBIN: Let me ask you, as you’ve described it, this is not an easy call. I mean, there are circumstances on both sides. And yet, in your dissent, you used the phrase — referring to the majority — as “hostility toward religion.”

It seems to me that you could make a case that I’m not hostile toward religion but trying to be sensitive to the rights of all to believe or not to believe in America and come down on the opposite side of the case.

Were you overstating your position in using that phrase, “hostility toward religion,” in describing the majority?

ALITO: It was Judge Mansmann’s opinion, which I joined. And I don’t remember the phrase “hostility to religion.” Obviously, it must be in there.

I certainly don’t think that she meant to suggest that those who were objecting to this were proceeding in bad faith or even that they were hostile to religion.

I think what she — I can’t speak for her and I don’t recall the specific language, but looking at it now, the way I would put it was that she probably thought that this was not giving as much room for private religious speech as should be given.

DURBIN: Interesting that when you — I couldn’t tell you what in the heck I ever wrote in law school about anything.

But in your second year in law school you wrote a paper, I take it, some research paper which you had to tell us about here relative to the issue of religion and then, in the ‘85 memo, raised the question about the Warren Court on the establishment clause.

What was it that the Warren Court decided on the establishment clause that troubled you, if you remember?

ALITO: Well, I actually think that the student note from the Yale Law Journal is an illustration of the sort of thing that has interested me and troubled me about the jurisprudence in this area for a long time.

In the law school note, I talked about two of what are called the released-time cases. It was the McCollum case (McCollum v. Board of Education, 1948) …

DURBIN: Versus …

ALITO: … versus Clauson (Zorach v. Clauson, 1952), both of which were decided just before Chief Justice Warren took his seat. And they involved situations that were quite similar.

There was a distinction between the two programs, but they were quite similar and the Court reached contrary conclusions. And unfortunately, this has been a recurring pattern in the establishment-clause jurisprudence, cases that turn on extremely fine distinctions.

The Supreme Court held in Board of Education v. Allen, if I’m remembering the correct case at the end of the Warren Court, that it was permissible for a school board to supply secular books to schools that are related to a religious — that are religiously oriented. And then later in another case, I think it was Wolman (Wolman v. Walter, 1977), they said but you can’t — but that doesn’t apply to other instructional material, other secular instructional material.

And this has been the thing about the establishment clause that has bothered me: the absence of just what your initial question was pointing to, some sort of theory that draws distinctions that don’t turn on these very fine lines.

DURBIN: Tell me about the establishment clause in a more contemporary context, if you can. You talked about the case in the Warren Court and providing secular books to religious schools, which I find no problem with. I think that’s acceptable from my point of view, whatever that’s worth.

But what about the concept and theory of financial support from a government agency to a school that is a religious school, where the money is used for the purpose of teaching religion or proselytizing?

ALITO: Well, I think the Court’s precedents have been very clear on that, that a government body cannot supply money to a school for the purpose of conducting religious education. And I don’t recall a suggestion in dissenting opinions — maybe there is one that I’m not recalling here — that says that that would be permissible.

DURBIN: I’m running out of time, but it would go back to my first question. I think under the coercion test, there is some argument among some on the Court and others that, not applying Lemon, but using this new coercion test may give them more leeway when it comes to this kind of financial support and vouchers. But I don’t want to presume that.

Cameras in court
SEN. ARLEN SPECTER (R-Pa.): Judge Alito, I want to move now to a subject on efforts to have television in the Supreme Court of the United States, a subject very near and dear to my heart.

I’ve been pushing it for a long time. I’m personally convinced that it’s going to come some day. I’m not sure whether it’ll come during my tenure in the Senate. More likely it’d come during the tenure of Chief Justice Roberts in the Supreme Court, or your tenure, if confirmed.

The Supreme Court said in the Richmond newspaper case vs. Virginia (Richmond Newspapers Inc. v. Virginia, 1980), quote, “The rights of a public trial belong not just to the accused, but to the public and the press, as well. Such openness has long been recognized as an indispensable attribute in the Anglo-Saxon trial.”

There are many other lines of authority, but only a few moments left to set the stage here. But the Supreme Court has the final word.

We can talk about the president’s war power under Article II and the congressional authority under the Foreign Intelligence Surveillance Act, but the Court makes the decision.

We can talk about taking away habeas corpus jurisdiction, but the Court decides whether we can do it or not.

We can talk about the insult of declaring acts of Congress unconstitutional because of our method of reasoning, but the Court can do that.

And the Court has made these decisions on all of the important subjects. The Court decided who would be president of the United States in Bush v. Gore. The Court decides who lives on a woman’s right to choose, who dies on the right to die, on the death penalty, on every critical decision.

The Congress has the authority to do many things on the administrative level, such as we set the starting date for the Court, the first Monday in October. We set what is a quorum of the Court, six members. Congress sets the size of the Court, effort made by President Roosevelt to increase the number from nine to 15. We put provisions in on speedy trial, time limits on habeas corpus matters.

In recent times, some of those who have objected to televising the Court [have] been on television quite a bit themselves. When Justice Scalia and Justice Breyer come on TV, it’s a pretty good show, not much surfing when that happens, like surfing when my turn comes to question.

But this proceeding on confirmation of Supreme Court justices has attracted a lot of attention. As I said to you yesterday, I’m tired of picking up the front page everywhere and seeing your picture on it.

Brit Hume was on Fox News talking about going to a Redskins game in 1991 when Justice Thomas was being confirmed and how he had his ear sets on to listen to the proceedings.

I think Senator Leahy was questioning Professor Hill at that particular time.

But how about it? Why shouldn’t the Supreme Court be open to the public with television?

ALITO: Well, I had the opportunity to deal with this issue, actually, in relation to my own court a number of years ago. All the courts of appeals were given the authority to allow their oral arguments to be televised if they wanted.

And we had a debate within our court about whether we should allow television cameras in our court room. And I argued that we should do it. I thought that it would be a useful …

SPECTER: Really? You have taken a position on this issue?

ALITO: Well, I did, and this is one of the matters on which I ended up in dissent in my court.


The majority was fearful that our Nielsen numbers would be in the negative.


SPECTER: Could you promise the same result?


Could you promise the same result, if confirmed, to be a dissenter? Will the Court allow TV?

SEN. CHUCH GRASSLEY (R-Iowa) (?): Be careful how you answer.

SPECTER: Be careful how you answer everything, as you have been.


ALITO: The issue is a little bit different on the Supreme Court. And it would be presumptuous for me to talk about it right now, particularly since, I think, at least one of the justices has said that a television camera would make its way into the Supreme Court room over his dead body.

So I wouldn’t want to comment on it …

SPECTER: Justice Souter. But quite a few of his colleagues have been on television. Let me ask you this, Judge Alito — I know what the answer will be — with seven seconds left, will you keep an open mind?

ALITO: I will keep an open mind, despite the position I took on the 3rd Circuit.


Online pornography
SEN. MIKE DEWINE (R-Ohio): Judge Alito, let me ask you about Congress’ power to protect our children from the proliferation of pornography on the Internet. This is an important issue. I raised it at the last hearing. It’s one that I think is very troubling.

Congress has tried several times to protect our children from being exposed to pornography on the Internet. In 1996, we passed the Communications Decency Act, but the Supreme Court struck it down, citing the First Amendment (Reno v. ACLU, 1997). A few years later, we passed the Child Online Protection Act. Again, the Court struck it down (Ashcroft v. ACLU, 2002, and Ashcroft v. ACLU II, 2004).

What bothers me about these cases is they fail to account for something that to me seems relatively simple: The core of the First Amendment is the protection of political speech, but it seems to me that pornography is altogether different. Unlike political speech, pornography has little value, if it has any value at all.

It doesn’t communicate a message, other than one that degrades women. It does not contribute to the public debate. And it actually causes harm to the victims who take part in making it and those who use it.

There are, of course, a number of cases that seem to recognize that pornography is of lesser-value speech. In Young v. American Mini Theatres, the Court upheld zoning regulations on adult theaters.

In doing so, Justice Stevens had this to say, and I quote, “Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different and lesser magnitude than the interest in untrammeled political debate.”

Let me ask you, Judge, what is your thinking on the subject? Is pornography lesser-value speech as Justice Stevens has seemed to suggest? And are there or should there be different levels of speech under the First Amendment?

ALITO: I think that the problem of protecting children from pornography on the Internet illustrates the fact that, although the task of the judiciary is to apply principles that are in the Constitution and not make up its own principles, to apply those to different factual situations, when the world changes and, in particular, when, in the First Amendment context when means of communication changes, the job of applying the principles that have been worked out — and I think in this area, worked out with a great deal of effort over a period of time in the pre-Internet world — applying those to the world of the Internet is a really difficult problem.

And I understand that Congress has been struggling with it. And I know the judiciary has been struggling with it.

The law, of course, as you know, constitutional law draws a distinction between obscenity, which has no First Amendment protection but is subject to a very strict definition, and pornography, which is not obscenity but is sexually related materials. With respect to minors, the Supreme Court has said it’s permissible for a state to regulate the sale of pornography to minors.

It has greater authority there. I think that’s the Ginsberg case (Ginsberg v. New York, 1968). It has great authority there than it does with respect to the distribution of pornography to adults.

Now, in the pre-Internet world, the job of preventing minors from purchasing pornography was a lot simpler. If they wanted to get it, I guess they would have to go to a store or some place and buy it.

But on the Internet, of course, it’s readily available from any computer terminal. And a lot of minors today are a lot more sophisticated in the use of computers than their parents. So the ability of parents to monitor what they’re doing and supervise what they’re doing is greatly impaired by this difference in computer aptitude.

And I can’t say much more about the question than that. It is a difficult question. I think that there needs to be additional effort in this area, probably by all branches of government, so that the law fully takes into account the differences regarding communication over the Internet and access to materials over the Internet by minors.

Free speech in the public square
DEWINE: Judge, let me turn to an area that I talked with Judge Roberts about, and that is free speech in the public square.

To me, there’s perhaps no right in our Constitution that is really as important as the freedom of speech.

The heart of the First Amendment is the idea that people have a right to speak their mind but also be heard on matters of public concern.

Traditionally, our citizens have expressed their opinion on public issues by turning to the public square. They do it in parks, in streets, in sidewalks, anywhere that people gather. It’s as old as the country and older than our country.

Lately, however, I believe that we’re seeing a disturbing trend.

Many cases governments have sought to restrict speech in the public arena; sometimes with success, sometimes without.

Let me give you some examples. One recent case, a Wisconsin woman was kicked off a city bus when she tried to distribute a book containing Bible stories to individuals sitting next to her.

In many towns and cities across the country, individuals are prohibited from placing political signs on their own property. They’re told what size they can put out. They’re told the times they can put it out, the dates they can put it out, et cetera.

In many public places, individuals have been forced to hold up signs or protest and been confined to free-speech zones, far away from the event that they wish to protest. These individuals doing nothing more many times than just standing there with a sign.

These sorts of restrictions concern me because they limit the ability of individuals not only to speak but also to be heard in public places, people who want to talk about politics, religion or any other matter of public concern.

I think we need to be careful as a society before we limit what people can say and where they can say it.

Let me ask you: How do you approach challenges to government restrictions on the ability of individuals to speak and be heard in public places?

And what, Judge, factors do you consider when deciding which restrictions on speech in the public square are proper under the First Amendment and which ones are not?

ALITO: I think that freedom of speech and freedom of the press and all the freedoms set out in the First Amendment are matters of the utmost importance.

Freedom of speech is not only important for it’s own sake, but it is vital to the preservation of our form of government. And I think that if anybody reviews the opinions that I’ve written in the area of freedom of expression and other First Amendment …

DEWINE: I’ve looked at some of them, at least.

ALITO: … they will see that I strongly support those rights.

The issue of speech in particular places is a daunting issue, where the Supreme Court has addressed it by developing the forum doctrine and they have identified what they call public forum, which would be something like a public street, where people’s ability to speak is at the maximum.

At the other extreme, there’s a private forum. My chambers would be a private forum; a senator’s office would be a private forum. Someone would not have a right to come in from the street and speak in a place like that.

And then there are what they call limits of public forums, or dedicated public forums or fora, places where people can speak freely, but only at particular times on particular subjects, a place that’s [dedicated] to free speech, but only on a particular subject, for example.

That’s the way they analyze it.

Now, some people would say that there are developments in society that have resulted in the shrinking of public fora that make it more difficult for people to express themselves. I know that I’m not up to date on New Jersey case law under the New Jersey Constitution, but it’s my belief that our state has read this — has a different forum doctrine in things like shopping centers — malls that are privately owned are considered to be public fora under a New Jersey state law. I think some other states view it that way and that’s a competing way of looking at this problem.

An important principle — where I have dealt with this in my cases, as I can recall — is the issue of freedom of speech in a limited public forum. And even in a limited public forum, what government cannot do is engage in viewpoint discrimination.

If the government opens up a particular forum for discussion of a particular subject, you can’t say, “But we’re only going to allow people who express this viewpoint and not another viewpoint.”

Viewpoint discrimination really goes to the heart of what the First Amendment is intended to prohibit, so that even in a limited public forum, where people are restricted with respect to what subject that they can talk about, government can’t impose a viewpoint discrimination.

DEWINE: Well, it just seems to me, Judge, that we could talk about this issue all day, and we’re not going to, obviously, but that there is a shrinking public forum, and the opportunities many times are going away.

I guess you could make the other argument that because of modern technology, there are other opportunities, with the Internet, et cetera, that they are opening up for people to communicate and to make their point well known.

But a lot of the places that people historically have talked and made their point well known are shrinking. You talked about the malls, which certainly in most states are totally off limits to any kind of display of that kind of debate.

Commercial speech
DEWINE: Let me turn to commercial speech, if I could. Under current law, commercial speech is protected by the First Amendment, but it has never had the same level of protection as other forms of speech, such as political speech. The difference in treatment has puzzled a number of commentators and judges.

In reviewing your cases, I noticed that you are certainly familiar with the issue of commercial speech. In Pitt News case (The Pitt News v. Pappert, 2004), for instance, you struck down a Pennsylvania statute that barred paid alcohol advertisements in newspapers affiliated with colleges and universities.

Let me ask you, Judge, based on your experience with this and other cases, what is your view about the distinction between commercial speech and noncommercial speech, and is there a common-sense difference between these two types of speeches? And have you found that case law supports any distinction? And how, if confirmed, will you approach the so-called commercial-speech claims under the First Amendment?

ALITO: Well, there’s a debate about how much protection commercial speech should have.

There are those who argue that the distinction between commercial speech and noncommercial speech should be eliminated. The Supreme Court views commercial speech differently. And while it is strict about any limitation regarding accurate information about prices it limits, it permits greater restriction of commercial speech under current case law than it does with respect to other types of speech.

And the theory, as I understand it, is that commercial speech is more durable. At least that’s part of the theory. In other words, there’s such a great incentive for people who are selling things to engage in advertising and other forms of commercial speech that it’s less likely to be driven out than speech on other issues where the financing may not be as extensive.

In the Pitt News case, what I had to apply was the question of whether there was sufficient tailoring.

There was a compelling interest for what was done there, which was to restrict advertising about alcohol in a publication that was affiliated with an educational institution. But based on the facts there, it just did not seem to be tailored at all.

This was a newspaper that, I think, 75% of the people who received it in its connection with the University of Pittsburgh, were people over the drinking age.

And maybe even more to the point, this publication was distributed free on campus and in newspaper boxes next to a number of others that contained commercial publications.

And they both advertised establishments and events in the area of the university. And the others were full of information about alcoholic beverages and those were free too.

So while the problem of underage drinking and abusive drinking on college campuses is a very serious issue, and the Pennsylvania legislature recognized that and we certainly didn’t question that — it is an issue of critical importance — it seemed quite unrealistic to think that this regulation, which only applied to The Pitt News and not to these other publications, was tailored sufficiently.

Free speech in public schools
SEN. RUSSELL FEINGOLD (D-Wis.): (In) 2001, you wrote an opinion overturning a public school district’s anti-harassment policy that protected, among other people, lesbian and gay students. You said the school policy in the case, Saxe v. State College Area School District, violated the First Amendment.

The case was brought by students who believed that the policy interfered with their ability to speak out against the, quote, “sinful,” unquote, nature and harmful effects of homosexuality, as compelled by their religion.

In your Senate questionnaire, you note that you won the Family Research Council Golden Gavel Award in 2001 for your decision striking down that policy. The Family Research Council is a leading conservative group that opposes gay rights.

In order for a policy protecting gay students from harassment to pass constitutional scrutiny, must it have an exception for harassment motivated by religious belief?

ALITO: Let me say what was at issue in the Saxe case, because that is the context in which I dealt with issues like this.

The Saxe case involved a very broad anti-harassment policy that had been adopted by a school district. It not only prohibited the expression of political viewpoints, but it went so far as to say that just about anything that any student would say about another student that would be offensive to that student, including comments on the way the student dressed or the things that they liked to do, would be a violation of the anti-harassment policy.

And under the First Amendment, unlike in most other areas of the law, statutes can be challenged on overbreadth grounds. And that was the ground on which the statute was struck down in the Saxe case, that it was overly broad, that it prohibited a great deal of speech that was constitutionally protected.

The Supreme Court decided back in the Tinker case (Tinker v. Des Moines Independent Community School Dist., 1969) that students don’t lose all of their First Amendment rights to freedom of expression when they enter the school grounds.

And Justice Brennan’s opinion in that case set out the test that is to be applied there. The schools have greater ability to regulate student’s speech than government has to regulate adult speech in general. But the authority of school officials to regulate the political speech by students — in Tinker it was the wearing of an arm band to protest the war in Vietnam — is not unlimited and there has to be a threat of disturbance on the school grounds or a violation of the constitutional rights of another student.

And so, any policy that regulated student expression, political expression in a school, would have to satisfy Justice Brennan’s Tinker standard.

Congress vs. Supreme Court on First Amendment
SEN. PATRICK LEAHY (D-Vt.): One of the advantages or disadvantages of being here for a long time — I’ve actually been here for the hearings on every member of the Supreme Court, including that of former Chief Justice Rehnquist. And Senator Specter and I have served here together a long time. And I went back to one of his questions. He asked then-Justice Rehnquist whether Congress can strip the Supreme Court of jurisdiction over First Amendment cases involving freedom of speech, press or religion. … [H]e kept pushing then-Justice Rehnquist until he finally got an answer. In the end, then-Justice Rehnquist gave his view. He said that Congress could not remove the Court’s jurisdiction over First Amendment cases.

So let me ask the same question that Senator Specter asked in 1986: Does Congress have the authority to say the Supreme Court does not have jurisdiction over First Amendment issues of freedom of speech, press and religion?

ALITO: Well, I would give the same answer to that that I gave to the more general question you asked a few minutes ago about taking away the Supreme Court’s appellate jurisdiction over a topic of cases. It’s not a question that I have — obviously have had to deal with in my capacity as a judge or something that I’ve written about or studied in any sort of a focused way.

My understanding of the writing on the question is that there’s a division of thought among leading constitutional scholars on the issue. And there are some who argue that Congress has plenary authority to define the appellate jurisdiction over the Supreme Court and there (are) others who argue that if Congress takes away the authority of the Supreme Court to hear a particular type of case, that there could be a violation of another constitutional provision. And, in that instance, it would be the First Amendment.

And as a matter of constitutional law, I don’t feel I can go further than that.

LEAHY: But, judge, this is somewhat similar to the initial answers given by then-Justice Rehnquist. But he ultimately came down and said in that hearing that Congress could not remove the Court’s jurisdiction over First Amendment cases.

Are you telling me that — and I just want to make sure I fully understand your answer — you’re not willing to go to the extent then-Justice Rehnquist did at his hearing?

ALITO: I gave a speech a while ago addressing this question from a practical standpoint or touching on it from a practical standpoint. And I said I thought that doing something like this would be an awkward and undesirable way of proceeding because it would lead to a lack of uniformity in decisions.

If jurisdiction is taken away from the Supreme Court, but jurisdiction remains in the courts of appeals on it, then conflicts in the circuits would develop and you’d have conflicting decisions potentially governing in different parts of the country and no way to resolve the issue.

And if the jurisdiction was taken away from the federal courts in general, then you would potentially have conflicting state court decisions. So the First Amendment, or whatever constitutional provision was at issue, would mean something different potentially in Vermont than it did in New Hampshire or in some other state.

So there are undesirable practical consequences of proceeding in that way.

SPECTER: I’m going to use just a little of my reserved time to comment on what Senator Leahy raised about the issue with Chief Justice Rehnquist on his statement that you could not take away the jurisdiction of the Supreme Court of the United States on First Amendment issues.

That was as interesting a dialogue as I’ve had in my tenure here, and I’ve had a few. And it arose in a curious context. I’d asked the chief justice about the question, and he refused to answer.

And over night, the staff had found an article written by a young Arizona lawyer named William H. Rehnquist in 1958 which was published in the Harvard Law Record, not the Harvard Law Review but the Harvard Law Record. And, in that article, lawyer Rehnquist said that the Senate Judiciary Committee was derelict in its duty in questioning Justice Whittaker at his confirmation hearings in not asking pointed questions about due process or equal protection.

And when my turn came, I came back to then-Justice Rehnquist and said, “How about it? Are you that William H. Rehnquist?”

SPECTER: And he admitted he was; didn’t have much choice.

And I said, “Well, how about his article?” And he emphatically said, “I was wrong.”


SPECTER: That provided an opening, and I proceeded to continue the line of questioning. And finally he allowed as to how Congress couldn’t take away the Court’s power over the First Amendment.

Seems to me patently clear that the Congress cannot take away the jurisdiction of the Supreme Court on constitutional issues — cannot do it. That’s the principal function of the Supreme Court of the United States, is to interpret the Constitution. And if the Congress can take away that authority, the Court's authority would be vacuous.


Roberts on the First Amendment: excerpts from hearings

Transcript discussions, letters answering written followup questions touch on news media access, church-state, free speech, campaign finance, pornography, libel. 09.14.05

Alito calls online-porn issue 'difficult'
High court nominee also pressed on privacy, abortion, executive powers, court precedent. 01.10.06

Alito discusses religious liberties
Nominee also expresses support for cameras in court, though he says high court presents a 'different issue.' 01.11.06

Alito endorses free speech in public square
Nominee also discusses differences between commercial, political speech. 01.12.06

Religion clauses protect nonbelief, Alito testifies
Graduation prayer, religious-school funding also raised before hearings end. 01.13.06

Judiciary Committee sends Alito nomination to full Senate
Panel votes along party lines, with all 10 Republicans endorsing 3rd Circuit judge for high court and all eight Democrats voting against him. 01.24.06

Alito well-versed in First Amendment
By Tony Mauro But nominee noncommittal about what he would do as justice who gets to make precedent, not just obey it. 01.17.06

2005-06 Supreme Court case tracker

Online symposium: Samuel Alito & the First Amendment

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