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Samuel Alito's per curiam opinions

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.

During his time on the 3rd U.S. Circuit Court of Appeals, Judge Alito has participated in 17 First Amendment per curiam opinions. Two of these involved the same litigants. Nine of the opinions involved inmate First Amendment claims. All of the opinions are unpublished.

Hoffenberg v. Provost (2005). Panel rejected a former inmate’s constitutional claims, including a First Amendment retaliation claim. The former inmate claimed in part that prison officials retaliated against him after he had filed grievances against various prison officials.

Allen v. Ripoll (2005). Rejected an inmate’s First Amendment claim that prison officials retaliated against him for participating in a prior lawsuit. Inmate also claimed he was denied access to the courts because prison officials deliberately withheld his necessary legal materials. The panel said the facts “do not suggest a claim of retaliation.”

Romansky v. Stickman (2005). Rejected an inmate’s First Amendment claim that prison officials retaliated against him for filing a grievance.

Alexander v. Gennarini (2005). Rejected an inmate’s First Amendment claim based on his allegation that prison officials either damaged or withheld his mail. The panel wrote that “a single instance of damaged or withheld mail does not constitute a First Amendment violation.”

Reyes v. Freeberry (2005). Police officers challenged a protective order entered in a discrimination lawsuit that prevented attorneys in the case from talking to the news media. Panel remanded the case to the district court for it to “clarify the scope of the restrictions that it has placed on the disclosure of court records and discovery information and on communications by counsel to the media.”

Burnside v. Moser (2005). Rejected an inmate’s constitutional challenges, including a First Amendment claim that prison officials refused to process various grievances. The panel wrote that the failure to process grievances “does not rise to the level of a constitutional right.”

Nelson v. Horn (2005). Vacated a lower court ruling dismissing an inmate’s claim that he was retaliated against for refusing to participate in a drug program that contained religious elements objectionable to the inmate. The panel wrote that the inmate “should be afforded the opportunity to amend his complaint.”

Henry v. Dep't of Corrections (2005). Rejected an inmate’s constitutional challenge, including his claim that his restriction to non-contact visitations violated his First Amendment rights. Relying on the 2003 U.S. Supreme Court decision in Overton v. Bazzetta, the panel rejected this claim.

Gordon v. Morton (2005) Denied an inmate’s First Amendment access to the court claim, based on an allegation that prison guards improperly confiscated the inmate's legal materials.

C.M. v. Bd. of Educ. (2005). Case primarily concerned a claim under the Individuals with Disabilities in Education Act. However, the case also included a First Amendment retaliation claim. A student and his parents contended that a school psychologist punished the student for taking a brownie because of a prior lawsuit filed by the student. The panel rejected this retaliation claim, finding no causal connection between the “brownie incident” and the prior lawsuit.

Terminello v. City of Passaic (2004). Vacated a lower court ruling and remanded to the district court the case involving the denial of a theater owner’s entertainment license. The theater’s license was denied because its owners refused to employ an off-duty police officer to control criminal activity on the premises. The panel said such a regulation should be evaluated under the secondary-effects doctrine, which requires the city to show that its regulation is narrowly tailored to serve a substantial governmental interest.

Marwood v. Elizabeth Forward Sch. Dist. (Feb. 19, 2005); Marwood v. Elizabeth Forward School Dist. (Feb. 5, 2005). These two panel opinions arose out of litigation filed by a teacher who alleged she was retaliated against for her advocacy of Learnball, a teaching method. In the Feb. 5, 2005, ruling, the panel unanimously rejected the teacher’s retaliation claims. The second ruling featured a 2-1 panel vote over the clarification of an earlier order in the case. There were no substantive First Amendment issues discussed in the per curiam opinion.

Conchatta, Inc. v. Evanko (2003). Case concerned a challenge filed by an adult business claiming that a Pennsylvania Liquor Code ban on “lewd, immoral or improper” entertainment violated the First Amendment. Panel ruled 2-1 (Alito was in the majority per curiam opinion) to deny the club’s request for a preliminary injunction even though the majority noted that the plaintiffs “have made a strong case that the statute is overbroad.” The majority per curiam opinion denied injunctive relief, saying that the plaintiffs failed to show evidence of irreparable harm. The majority pointed out that the plaintiffs did not purse an as-applied challenge on appeal. Judge Roth dissented from the denial of a preliminary injunction.

Note: After the 3rd Circuit decision, the case went back down to the district court for more proceedings. The district court later granted the plaintiffs partial summary judgment, ruling that the terms “immoral” and “improper” are unconstitutionally vague.

Carroll v. Rochford (2005); Carroll v. Rochford (2003). Panel issued two rulings in a political affiliation First Amendment case (plaintiff alleged he was terminated because of his political affiliation). Rulings did not reach the merits of the underlying First Amendment claims.

Spruill v. Rosemeyer (2002). This two-paragraph opinion vacates a district court’s dismissal of an inmate’s First Amendment retaliation claim. Note: This inmate has filed several lawsuits and this opinion is different from the ruling in Spruill v. Gillis (2004).

Ash-Bey v. Fauntleroy (2002). Rejected an inmate’s claims under the First Amendment and the Religious Freedom Restoration Act regarding restrictions on “the wearing of certain apparel.” Without much analysis or background, the panel concluded that the district court correctly applied the Turner v. Safley (reasonably related to legitimate penological concerns) test. With respect to the RFRA claim, the panel wrote that “the record does not show that the regulations impose a ‘substantial burden.’”


Online symposium: Samuel Alito & the First Amendment

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