Justice Alito after Ten Years: First Amendment Coherence?

Justice Alito claimed during his confirmation hearing that “results-oriented jurisprudence is never justified because … we are not policymakers.”  In the ten years since Justice Alito’s confirmation, he has been labeled by many on the left as one of the most politically motivated on the Supreme Court.  I think the American public is too cynical about the SCOTUS Justices.  Advocacy groups and the media focus on the results of an opinion more than on its reasoning, leading the public to perceive Justices as being overly motivated by result.  That said, although there may be results-neutral methods to Justice Alito’s jurisprudence, there are reasons to be skeptical of his approach to the First Amendment.

Justice Alito is likely the least speech-protective Justice on the Court, except in cases that seem to map onto his political views. alito.jpg

For one, Justice Alito refuses to join the Court’s efforts to reaffirm the view that even horrifying speech deserves protection.  Take, for example, Snyder v. Phelps and United States v. Stevens, two cases involving highly unpopular speech (gay bashing at a military funeral and video depictions of animal torture) that the Court held deserved First Amendment protection.  In Snyder, eight Justices voted to overturn an $11 million award for intentional infliction of emotional distress, based on the Westboro Baptist Church’s picketing at a military funeral.  In contrast to the majority, Justice Alito described the speech as private in nature, and thus less worthy of protection than public discourse or protest.  He also likened the speech to a “verbal assault,” conflating the distinction between expressive speech and tangible conduct that gives speech its heightened protection in the first place.

Further, Justice Alito’s moments of broader speech protection seem awfully convenient.  In Citizens United v. FEC, Justice Alito joined the five-member majority that struck down campaign finance laws restricting expenditures on speech that promotes a particular candidate during an election.  Although I agree with this decision, based on the principle that the government cannot drown out the voices of some so that others can speak louder, it’s easy to claim that Justice Alito becomes speech protective opportunistically, to join the conservatives in striking down campaign finance laws.  Justice Alito also concurred separately to broaden the speech rights of anti-gay-marriage plaintiffs in Doe v. Reed, a case that permitted states to disclose the names of those who sign ballot referenda, including a referendum to ban gay marriage.  Adding a speech-protective concurrence to the majority opinion, Justice Alito noted that the plaintiffs have a strong case that disclosure of their identities burdens their First Amendment rights of speech and association due to the potential harassment from revealing their names.

Perhaps, as some have argued, the reason that Justice Alito became speech protective in Citizens United (and Reed), is because Citizens United involved political speech, which is reasonably considered to be the core type of speech the First Amendment was designed to protect.  But if this is so, Justice Alito should have joined the majority in Snyder.  If one’s purpose is to ensure protection of political speech, why not cast a wide net around what constitutes political speech? As misguided and personal as their attacks are, the Westboro Baptist Church protests are related to a public-facing mission to save others and this country from military practices and from particular lifestyles they find immoral.

Justice Alito is also fond of describing how terrible speech is when rendering opinions, despite the fact that speech should not be judged unworthy of protection based on its content.  As Chief Justice Roberts noted in Brown v. Entertainment Merchants Association, “Justice Alito recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression.”  Although Justice Alito joined the majority to strike down a law restricting the sale of violent video games to minors, his much narrower concurring opinion suggested that video games may be different in kind from books and movies, and that the government perhaps should have more leeway in regulating rapidly evolving technology.  Here again, Justice Alito leaves room for more governmental regulation of speech he disfavors.

Some have suggested that the coherence in Justice Alito’s opinions is that he prioritizes other values, such as privacy and dignity, over free speech values.  Is Justice Alito simply cautious about the First Amendment, granting broad protections to only obviously political speech and worrying about others’ emotional well-being and desire to avoid harassment more than freedom of expression?  Perhaps my distaste for Justice Alito’s First Amendment jurisprudence is because I disagree with his results.  My speech-protective views about the First Amendment may represent my particular ideology.  However, this ideology exists at higher level of abstraction; it permits a more generalizable, rule-of-law principle than simply judging the particularized result based on the regulation at issue in any one case.  The latter, more crassly political approach, is my fear about Justice Alito.

Justice Alito calls a lot of attention to the objectionable nature of the speech in any given case, and does not clearly articulate his views about why any given instance of speech should or should not deserve protection.  At the very least, this approach undermines the appearance of First Amendment neutrality.  Because I believe we should be cautious about impugning the impartiality of judges, another ten years may be needed before I am sure that Justice Alito is results-oriented on First Amendment issues.  If the First Amendment is still read broadly to protect a wide range of speech by then, however, it will be no thanks to Justice Alito.