The Washington Post
Alito stands alone on Supreme Court’s First Amendment cases
By Robert Barnes
March 3, 2011

Supreme Court Justice Samuel A. Alito Jr.’s muscular dissent that members of the Westboro Baptist Church “brutally attacked” a fallen Marine and his family by protesting at his funeral marked the second time in a year Alito has stood alone in a First Amendment case.

Eight justices of the Supreme Court on Wednesday said that no matter how hurtful the speech employed by members of the Westboro Baptist Church, the First Amendment protected them from having to pay damages to the grieving father they targeted.

Alito said they were all wrong.

Alito’s condemnatory dissent said the Constitution’s guarantee of free speech did not allow members of the fringe church to protest the funeral of Albert Snyder’s fallen Marine son Matthew and “brutalize” the family with their lewd and cruel messages.

Last April, the other justices forcefully struck down a federal law aimed at banning depictions of dog fighting and other violence against animals, saying it violated constitutional guarantees of free speech and created a “criminal prohibition of alarming breadth.”

That ruling, which like Wednesday’s was written by Chief Justice John G. Roberts Jr., was another ringing endorsement of the First Amendment’s protection of even distasteful expression. Roberts called “startling and dangerous” the government’s argument that the value of certain categories of speech should be weighed against their societal costs when protecting free speech.

Alito did not.

“The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes,” Alito wrote in that case, U.S. v. Stevens. Videos that depict acts of animal mutilation and death “present a highly unusual free speech issue because they are so closely linked with violent criminal conduct.”

In Wednesday’s dissent in Snyder v. Phelps, Alito said Albert Snyder had an “elementary right” to bury his son in peace. Members of the church had no right to launch “a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.”

He added: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”

The dissents in Snyder and Stevens show Alito “pretty sharply departing from the rest of the court in a way that’s different from any other area,” said Doug Kendall of the liberal Constitutional Accountability Center.

And it highlights a significant difference in approach between President George W. Bush’s two nominees to the court, Alito and Roberts. The two often end the term agreeing in cases more than any other pair of justices.

“Between this case and [Stevens], free speech is the area in which the split in their views is most stark,” said Thomas C. Goldstein, a Supreme Court practitioner who runs scotusblog.com. “But I would expect to see more examples like this in the future.”

Goldstein said he believes Alito is on a “trajectory similar” to Justice Clarence Thomas.

“As he is on the court longer, he is developing independent views on a lot of issues,” Goldstein said. “And he does not hesitate to stand alone on principle.”

Certainly he did not hesitate to stand apart in the Westboro case from what was a remarkably united decision agreed to by the court’s most liberal and conservative members. Alito rejected the view that the caustic signs carried by the protesters – “Thank God for Dead Soldiers” and “God Hates Fags” are favorites – were legitimate public speech in a public forum.

“The First Amendment ensures that they have almost limitless opportunities to express their views,” Alito wrote about the church’s opinion that military deaths in Iraq and Afghanistan are God’s punishment for the nation’s tolerance for homosexuality.

“They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails,” Alito wrote.

He added: “It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.”

Some liberals have complained that Alito’s view in the Snyder case is at odds with his vote in Citizens United v. Federal Elections Commission that said corporations have a free speech right to play a larger role in election spending.

Goldstein and others disagree.

“I think the criticisms of Alito as being inconsistent in light of the campaign finance cases are wrong,” he said. “In his view, the First Amendment has a core value relating to political speech. In his view, extending it to protect videos of animal cruelty and exploitation of a military funeral goes too far. The rest of the court obviously disagrees, but his position seems completely coherent.”

Former Bush administration solicitor general Paul D. Clement said Alito’s views on the First Amendment “strike me as defying easy categorization.

“You can look at this decision and Stevens and say is he is the court’s leading voice against First Amendment absolutism.”

But in other cases involving the First Amendment, “he seems to have gone out of his way to express a view more protective of speech than the court’s opinion.”

The court has another First Amendment decision pending, on whether California may ban the sale of violent video games to minors.

During oral argument on that case, Alito seemed to show his hand.

“Your argument is that there is nothing that a state can do to limit minors’ access to the most violent, sadistic, graphic video game that can be developed,” Alito said to an attorney for the video game industry. “That’s your argument?”