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Samuel Alito's dissents and concurrences

Compiled by David L. Hudson Jr.
First Amendment Center research attorney

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

  • Dissenting opinion, Banks v. Beard, 399 F.3d 134 (3rd Cir. 2005). The 3rd Circuit ruled 2-1 that a prison policy restricting inmates in a long-term segregation unit from most printed materials (newspapers, magazines and photographs that were not legal or religious in nature) violated the First Amendment. The majority reasoned that the ban “cannot be supported as a matter of law by the record in this case.” Judge Alito dissented, writing that the “regulations are reasonably related to the legitimate penological goal of curbing prison misconduct.” Alito did mention that an as-applied challenge — rather than the across-the-board facial challenge in this case — by an inmate with a “record of reformed behavior” would “present different considerations.”
  • Dissenting opinion, C.H. v. Oliva, 226 F.3d 198 (3rd Cir. 2000). The en banc 3rd Circuit ruled 9-3 that a public school student failed to state a claim against school officials for the alleged censorship of a religious Thanksgiving poster when the child was in kindergarten. (The court divided 6-6 in the more high-profile aspect of the litigation which occurred when the student was in first grade — (see Charles Haynes column.)The majority remanded the case to the district court to allow the student and his parents to amend their complaint. Judge Alito dissented, criticizing the court for “duck[ing] the issue and bas[ing] its decision on a spurious procedural ground never raised by the defendants.” He spoke at length about the principle of viewpoint discrimination, particularly as it applies to student religious speech. “Taking down Zachary’s Thanksgiving poster and replacing it in a less conspicuous location because of its religious content was plainly viewpoint, not subject matter, discrimination,” he explained. “Rather, the poster was allegedly given discriminatory treatment because of the viewpoint that it expressed, because it expressed thanks for Jesus, rather than for some secular thing. This was quintessential viewpoint discrimination.”
  • Concurring and dissenting opinion, Phillips v. Borough of Keyport, 107 F.3d 164 (3rd Cir. 1997). The en banc 3rd Circuit ruled in a secondary-effects case that a cognizable First Amendment claim was raised by the prospective adult-business owner and that, on remand, the New Jersey borough “must be required to articulate the governmental interests on the basis of which it seeks to justify the ordinance.” The court reasoned that “our First Amendment jurisprudence requires that the Borough identify the justifying secondary effects with some particularity.” It concluded that “to insist on less is to reduce the First Amendment to a charade in this area.” Judge Alito wrote a separate “concurring and dissenting” opinion. Alito concurred on the First Amendment issue. He dissented on a separate due-process issue. Judge Max Rosenn wrote a dissenting opinion that was far more protective of First Amendment interests than the opinions of the majority or Judge Alito. Rosenn chastised the majority for allowing the borough the opportunity to “structure a post hoc record [of secondary effects] more than four years later.”
  • Concurring opinion, Rappa v. New Castle County, 18 F.3d 1043 (3rd Cir. 1994). A three-judge panel of the 3rd Circuit struck down a portion of a Delaware law that exempted certain signs from a general statute banning all road signs within 25 feet of state highways. An individual whose political campaign signs were removed argued that the law violated the First Amendment by allowing some commercial signs and disallowing his noncommercial signs. All three judges on the panel — Edward Becker, Leonard Garth and Alito — wrote separate opinions with Becker writing the main opinion. In the litigation, the county attempted to invoke the secondary-effects doctrine to justify the sign law. Judge Becker questioned the applicability of the doctrine: “We have some doubts, however, that political speech is subject to secondary effects analysis; a majority of the Supreme Court has never explicitly applied the analysis to political speech.” Judge Alito wrote a short concurring opinion that did not specifically address the applicability of the secondary-effects doctrine.

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    Online symposium: Samuel Alito & the First Amendment

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