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Alito & First Amendment protection for sexual expression

By Robert Corn-Revere
Special to the First Amendment Center Online

Robert Corn-Revere

This article is part of an online symposium on the First Amendment Center Online concerning Judge Samuel Alito’s First Amendment jurisprudence.

Predicting how a new associate justice of the Supreme Court will vote in future cases is risky business, even under the best of circumstances. Where a nominee has previous judicial experience, as does Judge Samuel A. Alito Jr., the best predictors of his future decisions are his past opinions. But trying to forecast a justice’s likely decisions is exceedingly difficult where he has written next to nothing in a particular area.

Active circuit, scant evidence
Judge Alito’s record as a 3rd U.S. Circuit Court of Appeals judge provides scant evidence of how he might vote on First Amendment decisions involving sexually oriented speech as a Supreme Court justice if he is confirmed. He has written no majority opinions on the contentious issues of obscenity or indecency that have been before the courts in recent years. What little evidence that may be gleaned from his dissents or from unpublished opinions, however, suggests that he may approach such cases much like Sandra Day O’Connor, the justice he has been tapped to replace.

Judge Alito’s relative silence on these issues is somewhat notable given the number of important cases that have been decided in the 3rd Circuit in recent years.

  • A three-judge district court (with Circuit Judge Dolores K. Sloviter presiding) struck down the Communications Decency Act, which attempted to impose broadcast-type content controls on the Internet, as a violation of the First Amendment in ACLU v. Reno, 929 F.2d 824 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997).

  • Another three-judge court (with Circuit Judge Jane R. Roth presiding) invalidated Section 505 of the Telecommunications Act of 1996, which restricted “indecent” adult cable television networks. Playboy Entertainment Group, Inc. v. United States, 30 F.Supp.2d 702 (D. Del. 1998), aff’d, 529 U.S. 803 (2000).

  •  A 3rd Circuit panel composed of Judges Leonard I. Garth, Richard L. Nygaard, and Theodore A. McKee, has twice held that the Child Online Protection Act falls short of First Amendment requirements. ACLU v. Reno, 217 F3d 162 (3rd Cir. 2000), rev’d and remanded sub nom. Ashcroft v. ACLU, 535 U.S. 564 (2002), aff’d on remand, 322 F.3d 240 (3rd Cir. 2003), aff’d, 124 S. Ct. 2783 (2004).

  • Currently pending before the court is Gonzales v. Extreme Associates, in which Judges Nygaard, Walter K. Stapleton and D. Brooks Smith will decide whether the district court was correct when it voided an obscenity prosecution as a violation of substantive due process. That case was argued on Oct. 19.

    Sexual expression and zoning restrictions
    Although Judge Alito has written no majority opinions on the hot-button issues of obscenity or indecency, he has participated in cases involving zoning restrictions for sexually oriented speech, as well as the regulation of nude dancing. His separate opinions (and participation in per curiam opinions) in these cases are far from definitive, but suggest that his position may be comparable to that of Justice O’Connor.

    In Phillips v. Borough of Keyport, 107 F.3d 164 (3rd Cir. 1997) (en banc), the full 3rd Circuit held that a local government had failed to support its burden of proof to justify an ordinance that required a 500-foot buffer between adult bookstores and residences, churches and playgrounds. Such zoning measures are justified based on the “secondary effects” of adult bookstores, not on the content of the books or videos sold, and thus are subject to “intermediate” First Amendment scrutiny. The majority found that it would “reduce the First Amendment to a charade in this area” if the government were not required to identify the supposed secondary effects “with some particularity,” offer some record of support for the existence of those effects, and show that the ordinance ameliorated the problem. However, the court also held that such proof need not be presented as part of a legislative record, but could be presented after litigation had commenced.

    The en banc court also held that the local ordinance had to preserve adequate alternative channels for adult entertainment, and that the disappointed applicants for a bookstore license might be able to make out a substantive due-process claim if they could prove that local officials denied or delayed their license applications “because of a distaste for the content of [their] expression.” Id. at 180-181. The court stressed that “[t]he right to substantive due process conferred by the Fourteenth Amendment includes the right to be free from state and local government interference with constitutionally recognized fundamental rights.” Id. at 179-180.

    Alito concurred with the main thrust of the opinion, but dissented from the en banc court’s holding on substantive due process. He would have used the case as an opportunity to clarify circuit law and thereby narrow the scope of substantive due process. He wrote that “mere negligence on the part of a state does not amount to an abuse of state power such that constitutional due process is implicated,” adding: “Only in extreme circumstances is it proper to invoke substantive due process.” Id. at 184, 186 (Alito, J., concurring in part and dissenting in part). Alito concurred with the majority on the principal First Amendment claim, but it is important to note that the court in Phillips did not adopt a broadly speech-protective view with respect to the government’s burden of proof. As Judge Max Rosenn pointed out in his dissenting opinion, the holding that a legislative body need not have a record justifying the regulation of secondary effects before a zoning ordinance is adopted is contrary to decisions in most other circuits. Id. at 188 (Rosenn, J., dissenting).

    Alito and O’Connor
    While this one decision suggests that Alito might be somewhat unwilling to find expansive First Amendment protections for sexual expression, his views are consistent with those of Justice O’Connor. For example, in City of Erie v. PAP’s A.M. (2000) the Supreme Court upheld an Erie, Pa., ban on nude dancing where there was no evidence of an actual secondary-effects problem, and all justices acknowledged that a requirement that dancers wear pasties and a G-string would have no effect in the real world. Nevertheless, O’Connor, writing for the plurality, noted: "In the absence of any reason to doubt it, the city's expert judgment should be credited."

    Justice O’Connor expressed a similar view in City of Los Angeles v. Alameda Books (2002), where she wrote the plurality opinion upholding a zoning ordinance. In holding that a city need not produce separate studies to justify the regulation of “multiple use adult establishments,” she wrote that cities may rely on “any evidence that is ‘reasonably believed to be relevant’” because there is not a “high bar for municipalities that want to address merely the secondary effects of protected speech.”

    One other fragmentary bit of evidence from a per curiam opinion suggests that Alito might be less sensitive to First Amendment concerns in cases of this type. In Conchatta, Inc. v. Evanko, 83 Fed. Appx. 437 (3rd Cir. 2003), the court voted 2-1 to affirm the district court’s denial of a preliminary injunction against a local ordinance regulating nude dancing despite the fact that all three judges found that the plaintiffs were likely to succeed on the First Amendment claim. In fact, the district court ultimately found the ordinance to be unconstitutional. Conchatta, Inc. v. Evanko, 2005 WL 426452 (E.D. Pa. Feb. 23, 2005).

    During the appeal over the preliminary injunction, Judge Alito was described by the attorney representing the plaintiffs as “extremely hostile to our First Amendment arguments,” and the resulting decision denied injunctive relief on the grounds that the plaintiffs had failed to show irreparable injury. Tellingly, the per curiam opinion rejected the contrary reasoning in ACLU v. Reno on this point as “inconsistent with governing circuit precedent.” In dissent, Judge Roth noted that injuries to expressive rights tend to be irreparable by their nature because “there is no remedy at law to compensate for the loss of First Amendment freedoms.”

    Ultimately, the evidence is too fragmentary to predict with any certainty how Judge Alito will vote in cases involving sexual expression if he becomes Justice Alito. Although he has expressed a narrow view of substantive due process and the irreparability of First Amendment harms, as well as the government’s burden of proof in bookstore zoning cases, his limited writings in this area do not set him far apart from most judges on the 3rd Circuit or — importantly — from Justice O’Connor.

    Though First Amendment advocates might wish for a new justice who has the same inclinations on First Amendment matters as Justices Anthony Kennedy or David Souter, it appears unlikely that Judge Alito will significantly shift the balance of the Supreme Court in this area of the law if he is elevated.

    Robert Corn-Revere is a partner at Davis Wright Tremaine in Washington, D.C. He is one of the lead authors of Modern Communication Law (West, 1999) and successfully argued United States v. Playboy Entertainment Group (2000) in U.S. Supreme Court. Corn-Revere writes extensively on First Amendment, Internet and communications-related issues, and has provided expert testimony before various congressional committees and the Federal Communications Commission. Most recently, he is the author of “Implementing a Flag-Desecration Amendment to the U.S. Constitution,” a First Report from the First Amendment Center.

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