First Amendment topicsAbout the First Amendment
Judge Alito fairly strong on free expression

By Ronald K.L. Collins
and David L. Hudson Jr.

First Amendment Center

Today President George W. Bush nominated Judge Samuel A. Alito Jr. to serve as an associate justice on the U.S. Supreme Court. Having served 15 years on the 3rd U.S. Circuit Court of Appeals, Judge Alito is a nominee with considerable judicial experience and an equally extensive record of published opinions on a variety of constitutional and statutory topics.

Importantly, those topics include his views on the First Amendment as reflected in his 20 majority opinions (14 freedom of expression, six freedom of religion and various per curiam opinions) during his tenure on the 3rd Circuit. There are also the First Amendment cases in which he participated but did not write an opinion.

A preliminary examination of his First Amendment opinions suggests that Alito is: (1) quite protective of several categories of expression, including religious and commercial expression; (2) far less protective of First Amendment claims raised by prisoners; (3) guardedly protective of First Amendment rights in defamation cases, and (4) generally concerned about prior restraints on expression.

Overall, his opinions suggest he is scholarly in his approach to deciding such cases, and sensitive to precedent but nonetheless capable of working around it when he deems necessary.

The following seven cases exemplify Alito’s general thinking on First Amendment freedom-of-expression law.

Speech codes
In Saxe v. State College Area School District (2001) Alito wrote the opinion in which the 3rd Circuit struck down as contrary to the First Amendment a public school anti-harassment policy. The stated purpose of the policy was to provide “all students with a safe, secure, and nurturing school environment.” It further added that “disrespect among members of the school community is unacceptable behavior which threatens to disrupt the school environment and well being of the individual.” The policy defined harassment as:

“verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment.”

The federal district court upheld the policy and the 3rd Circuit reversed. Writing for a unanimous panel, Alito declared: “There is no categorical ‘harassment exception’ to the First Amendment's free speech clause. Moreover, the ... Policy prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law.” Furthermore, he added: “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.” This is so, he ruled, even in the school context outlined in the Fraser case, where policymakers are sometimes given more constitutional latitude.

Tracking the logic of Supreme Court Justice Antonin Scalia’s majority opinion in R.A.V. v. City of St. Paul (1992), and mindful of the school policy’s content-based bias, Alito emphasized that even offensive speech is entitled to protection: “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.” Nonetheless, Alito held open the possibility that some anti-harassment laws might be sustained if “a school or workplace audience is ‘captive’ and cannot avoid the objectionable speech.”

Commercial speech & college press
In another First Amendment controversy that arose in a college context, Judge Alito expressed similarly strong First Amendment concerns in a commercial-speech case, The Pitt News v. Pappert. There, a Pennsylvania law banned paid advertisements for alcohol in college newspapers. A unanimous three-judge panel of the 3rd Circuit, with Alito writing the opinion, held that the 1996 law, which was intended to combat under-age drinking, placed an impermissible financial burden on student-run publications and impermissibly interfered with their right to free speech while doing little to achieve its goal.

In Alito’s mind, the Pennsylvania law was unconstitutional for two basic 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.”

The state defended the law on the grounds that it did not prohibit the college newspaper from printing alcoholic-beverage ads but simply prohibited the paper from receiving payments for running them. That argument failed to convince Judge Alito: The law “clearly restricts speech. The very purpose of [it] is to discourage a form of speech (alcoholic-beverage ads) that the Commonwealth regards as harmful. If government were free to suppress disfavored speech by preventing potential speakers from being paid,” he added, “there would not be much left of the First Amendment. Imposing a financial burden on a speaker based on the content of the speaker’s expression is a content-based restriction of expression and must be analyzed as such.”

Applying a robust interpretation of the Supreme Court’s Central Hudson Gas & Electric Corp. v. Public Service Comm. (1980) test, Alito concluded that the state had not shown that the law actually combated “underage or abusive drinking ‘to a material degree’” or that it provided anything more than “ineffective or remote support or the government’s purposes.” This was so, he stressed, even though he did “not dispute the proposition that alcoholic beverage advertising in general tends to encourage consumption.” Hence, if the law in question had “the effect of greatly reducing the quantity of alcoholic beverage ads viewed by underage and abusive drinkers on the Pitt campus, we would hold that the third prong of the Central Hudson test was met.”

But that was not the case here, as the law applied “only to advertising in a very narrow sector of the media (i.e., media associated with educational institutions), and the Commonwealth [had] not pointed to any evidence that eliminating ads in this narrow sector will do any good,” he emphasized.

The Pennsylvania law was also constitutionally problematic for Alito because it imposed “special financial burdens on the media or a narrow sector of the media” in a way contrary to First Amendment precedents: “[T]he Act’s structure makes it presumptively unconstitutional. Like the provisions struck down in Grosjean, Minneapolis Star, and Arkansas Writers’, [this law] singles out a relatively ‘small group’ of speakers.”

Religious expression
Does a police-department policy barring officers from wearing beards violate the free-exercise clause of the First Amendment? More specifically, does the First Amendment bar a police department from firing two Muslim officers who refused to shave their beards for religious reasons? That was the issue raised in Fraternal Order of Police v. City of Newark (1999). The court, in an opinion authored by Alito, concluded that such laws violated the free-exercise clause.

The Newark, N.J., police policy granted exemptions for medical reasons, though denied them for religious ones. The 3rd Circuit held that the police department had no serious reason for not allowing a religious exemption. “Because the Department makes exemptions from its policy for secular reasons and has not offered any substantial justification for refusing to provide similar treatment for officers who are required to wear beards for religious reasons,” wrote Alito, “we conclude that the Department's policy violates the First Amendment.”

Distinguishing the Supreme Court’s holding in Employment Division v. Smith (1988), which limited free-exercise rights, Judge Alito declared: “We conclude that the Department's decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny.” In that respect, he concluded that “neither the police departments interest in a ‘monolithic, highly disciplined force,’ or its need to provide a "public sense of security in having readily identifiable and trusted public servants,” were sufficiently compelling to justify a policy that effectively suppressed “manifestations of the religious diversity that the First Amendment safeguards.”

Alito's protectiveness of religious expression has held whether viewed through the prism of the free-exercise clause or the free-speech clause. In an en banc dissenting opinion in C.H. v. Oliva (3rd Cir., 2000), he chastised his colleagues for “duck[ing] the issue” and not addressing the underlying First Amendment issues in the alleged censorship of a kindergartener’s Thanksgiving poster because of its religious content. While the majority said the complaint was inadequate and needed to be amended, Alito opined that the complaint adequately stated a claim for 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,” he wrote. “School officials are not permitted to discriminate against student expression simply because of its religious character.”

Prior restraint & public employees
Swartzwelder v. McNeilly (2002) involved a Pittsburgh Police Bureau order requiring members of the bureau to obtain prior approval from the chief of police before testifying in court. The order applied to any “contact, request or summons” from the district attorney’s office. The chief of police also issued a memo saying that any time a police officer was subpoenaed to testify, the employee must meet with the assistant city solicitor and the training academy to determine the “validity” of the officer’s testimony. A federal district court barred the enforcement of the order and the memo on First Amendment grounds. The 3rd Circuit affirmed the lower court’s issuance of a preliminary injunction.

Writing for the court, Alito noted that the policy “restricts speech on matters of public concern” and is “not carefully crafted” to serve the police department’s legitimate interests. Alito questioned the part of the policy that mandated employees to meet city officials to determine if their proposed testimony was valid. “A more precise and focused test than ‘validity’ is surely possible, and ‘validity’ is so open-ended that it creates a danger of improper application,” Alito wrote. “Outside the government-employment context,” he added, “regulations requiring approval prior to engaging in expression have been required for decades to include narrowly drawn, reasonable and definite standards. ... . Without suggesting that government employment regulations demand the same degree of precision as regulations governing other speech,” he continued, “we nevertheless regard the open-ended standard of ‘valid[ity]’ as disturbing.”

Concerning Judge Alito on First Amendment overbreadth, see the per curiam opinion he signed in Terminello v. City of Passaic (2004).

In Tucker v. Fischbein (2001) the 3rd Circuit considered whether the defamation suit of anti-gangsta rap crusader C. Delores Tucker could proceed against Richard Fischbein, an attorney who represented the estate of the late rapper Tupac Shakur, and news organizations that quoted the estate attorney. Tucker had sued rapper Shakur for his comments about Tucker in his rap songs. Among Tucker’s claims was one for loss of consortium. Fischbein told reporters for Time and Newsweek: “It is hard for me to conceive how these lyrics could destroy her sex life.” Tucker then sued Fischbein and the reporters for Newsweek and Time that quoted Fischbein. Loss of consortium is a tort claim that can include damages to a sexual relationship, but not necessarily. The Tucker and her husband claimed Fischbein knew they were not trying to recover for damages to their sexual relationship, but that he continued to say so anyway. A federal district court dismissed the suit.

On review, Judge Alito wrote: “We must therefore examine whether the First Amendment poses a bar to the Tuckers’ claim.” As to that issue, he affirmed the district court’s ruling dismissing the defamation claims against Newsweek, Time and their reporters. Alito noted that Tucker, as a public-figure defamation plaintiff, must establish evidence of actual malice by clear and convincing evidence.

Nonetheless, Alito also stressed: “It is worth noting that, not only were the defendants’ statements capable of a defamatory meaning, but the Tuckers adduced evidence that their reputations were in fact adversely affected.”

Accordingly, he determined that Tucker’s libel claim against attorney Fischbein could proceed. As he put it: “We are convinced that a reasonable jury could find by clear and convincing evidence that, at least as of the date of service of the First Amended Complaint, Fischbein had actual knowledge that the Tuckers were not seeking to recover for damage to their sexual relationship.”

Prisoner First Amendment opinions
Prison-inmate cases inevitably test the viability and wisdom of First Amendment jurisprudence (see Turner v. Safley, a 1987 Supreme Court opinion dealing with free-expression rights of inmates). That fact certainly held true in the prison cases that came before Judge Alito during his service on the 3rd Circuit.

In the opinions he authored, Judge Alito has consistently rejected First Amendment claims filed by inmates. For example, in Fraise v. Terhune (2002), Alito, writing for a divided court (2-1), rejected the free-exercise claims of a group of inmates. He began his opinion by observing: “Faced with increasing gang violence in correctional facilities throughout the state, the New Jersey Department of Corrections promulgated a policy in 1998 that was designed to isolate and rehabilitate gang members. Under this policy, prison officials can designate [Security Threat Groups] and transfer the ‘core’ members of these groups to the ‘Security Threat Group Management Unit.’ The goal of this policy is to ‘limit Security Threat Group activities and, in doing so, minimize the occurrence of assaults on staff and inmates.’”

The “Five Percent nation,” a group of prison inmates, was designated as an STG. Its members claimed that the group did not promote or advocate violence, “but evidence links the group with numerous incidents of prison violence,” Alito wrote.

Against that backdrop, Alito upheld the authority of the New Jersey Department of Corrections to classify the Five Percenters as a “security threat group” dangerous to prison safety. Accordingly, he concluded that “there is a rational connection between New Jersey’s STG regulations and the legitimate and neutral objective of maintaining order and security within the prison system.”

As to the degree of impingement on First Amendment rights, Alito observed: “The [district court] noted that the STG Policy does not impose a total ban on association and expression by STG members and that such inmates continue to have opportunities to participate in religious programs, to fast and pray, to possess certain religious items, and to express their political, social, and cultural views in other ways.” Similarly, he noted with approval: “The [lower court] did not feel that an individualized determination of the threat presented by each inmate identified as an STG member was a viable alternative because, among other things, it would place an undue burden on prison staff.”

It was significant in Alito’s view that the STG policy did not ban Five Percenters access to all of the group’s literature: “Even the study of the Five Percent Nation’s teachings is not completely prohibited. [The evidence in the record reveals] that the group’s ‘teachings include texts such as the Bible [and] the Koran.’ While the STG Policy forbids possession of distinctively Five Percent Nation literature, it is undisputed that the Policy allows inmates to possess, study, and discuss the Bible and the Koran. Accordingly, study of the Five Percent Nation’s teachings is only partially restricted. ... Certainly nothing in the STG Policy restricts Five Percent Nation members from discussing or seeking to achieve self-knowledge, self-respect, responsible conduct, or righteous living.”

Writing in dissent, Judge Marjorie Rendell declared: “While some measure of deference is certainly to be afforded to prison authorities, nonetheless we must make certain that we do not convert the Turner v. Safley test into a rubber stamp. Here, the policy at issue has been applied so as to target a religious group for different treatment, including a blanket denial of First Amendment rights. We must deal with this wholesale treatment of members of a religious group in a careful manner” (footnote omitted).

Judge Rendell’s disagreement with Judge Alito was premised on the majority’s purported insensitivity to the inmates’ religious claims: “Two key facts are present here that, I submit, warrant that we proceed with extra caution. First, the policy is being applied based on membership in a group, specifically, in a religious group; the individual conduct that results in the purported basis for the imposition of the restriction is not violent or threatening activity, but, rather, is religious observance essentially protected by the First Amendment. Second, the cognitive ‘leap’ from the fact of membership in a religion to the validity of a concern about security is not an automatic one, not ‘common sense,’ and we must require a showing of the proper fit between membership in the religious group and valid security concerns.”

In another prisoner case, Waterman v. Farmer (1999), a 3rd Circuit panel per Judge Alito rejected an inmate’s challenge to a New Jersey law prohibiting sex-offender inmates from having access to sexually explicit materials. Though a federal district court sustained the inmate’s First Amendment claim, Alito reversed. “In this case, it is beyond dispute that New Jersey has a legitimate penological interest in rehabilitating its most dangerous and compulsive sex offenders,” he wrote. “Because the state’s interest in rehabilitation is ‘unrelated to the suppression of expression,’ we conclude that the statute’s purpose is neutral for purposes of Safley.

While a more extensive discussion and analysis of Judge Alito’s views on the First Amendment is needed (including those while he served as a federal prosecutor), a preliminary examinations suggests that he could well bring a First Amendment sensitive perspective to the Supreme Court, a welcome prospect at a time when the Court, of late, has not been very speech protective.

It remains to be seen whether the First Amendment records of John G. Roberts Jr. and Samuel A. Alito Jr. (if confirmed) will change that record.


Federal appeals panel sides with Muslims in suit against police department
Judge says Newark, N.J., police department grooming policy must exempt religious objectors. 03.04.99

3rd Circuit: State can't bar alcohol ads from college newspapers
Court says 1996 Pennsylvania law places unfair financial burden on student-run publications, hinders free speech. 07.30.04

Bush nominates Samuel Alito for high court
Judicial conservatives say 3rd Circuit judge is powerful voice for First Amendment's guarantees of free speech, free exercise of religion. 10.31.05

Samuel Alito's majority First Amendment opinions
List of cases in which Judge Samuel Alito wrote the majority opinion. 10.31.05

High court nominee well-acquainted with First Amendment
Exclusive analysis by David L. Hudson Jr. As an attorney, John G. Roberts has handled many First Amendment cases in private, public sectors. 07.20.05

New Supreme Court needs new First Amendment direction
By Paul K. McMasters Over the next year justices will render opinions in cases that bear directly on whether we have full or constricted freedoms when we wish to engage in crucial issues. 10.07.05

Online symposium: Samuel Alito & the First Amendment

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