Bush's Conservative Judge Harbors Libertarian Streak - New York Times

Bush's Conservative Judge Harbors Libertarian Streak - New York TimesNovember 12, 2005
Bush's Conservative Judge Harbors Libertarian Streak
By JONATHAN D. GLATER and ADAM LIPTAK

Judge Samuel A. Alito Jr. has vigorously defended freedom of expression, adopting a stance that places him among a group of conservative judges with a libertarian streak.

Judge Alito's broad reading of the freedom of speech and press clauses of the First Amendment stands in contrast with his narrower interpretation of other constitutional rights, including the Fourth Amendment's prohibition of unreasonable searches and the Sixth Amendment's guarantees of fair trial rights for criminal defendants.

Judge Alito, President Bush's choice for the Supreme Court, has found First Amendment violations in a school board's antiharassment policy, in a ban on liquor advertisements in a college newspaper and in the removal of a boy's drawing of Jesus from a schoolhouse wall.

But this willingness to protect expression has not extended to cases involving prisoners and government employees. In a dissent this year, for instance, he argued that officials in a maximum security prison were free to punish inmates by barring their access to newspapers and magazines.

"Judge Alito is part of the new breed of conservative libertarian jurists who are sensitive to safeguarding our free-speech freedoms," said Ronald K. L. Collins, a scholar at the First Amendment Center, a research and advocacy group in Virginia. "They're particularly sensitive when it comes to issues involving speech and commerce and political orthodoxy."

These judges tend to be very protective of speech rights when they involve the marketplace of ideas, or the core of the First Amendment, said Jesse H. Choper, a constitutional law professor at the University of California, Berkeley.

Among the generally conservative judges who share Judge Alito's approach to free expression are Justice Anthony M. Kennedy and Judge Alex Kozinski on the United States Court of Appeals for the Ninth Circuit, in San Francisco. Justice Antonin Scalia may also be considered in this group; his vote was critical in a 1989 case holding that burning the American flag was a form of protected political speech.

In Judge Alito's 15 years on the United States Court of Appeals for the Third Circuit, his most expansive meditation on the contours of the First Amendment's speech protections came in a 2001 case challenging a code of conduct.

David Saxe, a member of the Pennsylvania State Board of Education and the legal guardian of two students in the State College school district, challenged the district's antiharassment policy, which forbade jokes and demeaning comments about various personal characteristics, including race, sexual orientation, clothing, social skills and values.

Mr. Saxe said the code interfered with his family's right to speak out in opposition to homosexuality. Judge Alito, writing for a unanimous three-judge panel, ruled in his favor.

There is, Judge Alito wrote, "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."

Telling students not to be catty about clothes and social skills, he went on, "may be brave, futile or merely silly." But banning speech about values, he said, "strikes at the heart of moral and political discourse - the lifeblood of constitutional self-government (and democratic education) and the core concern of the First Amendment."

The judge's views in this case contrast with his position in a lawsuit filed by Phyllis J. Sanguigni, a teacher at the Taylor Allderdice School in Pittsburgh, who argued that the school retaliated against her after she wrote in a newsletter about poor morale and stress among teachers. She was removed from a coaching position.

Writing for a unanimous three-judge panel, Judge Alito decided that the teacher had no free speech claim. "Sanguigni did not comment on any broad social or policy issue," he wrote, and her statements conveyed little useful information to the public. "Nor did she comment on how the Taylor Allderdice School was discharging its educational responsibilities or how the school authorities were spending the taxpayers' money."

In another case involving students, Judge Alito, again writing for a unanimous panel, struck down a Pennsylvania law that banned alcohol advertisements in college newspapers. The law was intended to combat under-age drinking.

Judge Alito said it violated the First Amendment in two ways. First, he ruled that the commercial speech rights of advertisers were curtailed for no good reason. Even if students do not see advertisements for alcohol in their college newspapers, he wrote, "they will still be exposed to a torrent of beer ads on television and radio, and they will still see alcoholic beverage ads in other publications." The law did such a poor job of achieving its goal, he said, that it violated the First Amendment.

The law also violated the newspapers' rights, Judge Alito ruled, by singling them out for a financial penalty. "If government were free to suppress disfavored speech by preventing potential speakers from being paid," he wrote, "there would not be much left of the First Amendment."

Judge Alito sided with the mother of a kindergarten pupil whose son's depiction of Jesus was removed from a schoolhouse wall after all students were asked to draw what they were thankful for. The appellate panel of 14 judges did not decide the case on First Amendment grounds, a move strongly criticized by the judge, and sent it back to a lower court.

"Instead of confronting the First Amendment issue that is squarely presented by that incident," Judge Alito wrote, "the court ducks the issue and bases its decision on a spurious procedural ground."

He added: "I would hold that public school students have the right to express religious views in class discussion or in assigned work, provided that their expression falls within the scope of the discussion or the assignment and provided that the school's restriction on expression does not satisfy strict scrutiny."

Judge Alito's most significant libel decision involved a quirky claim against Time and Newsweek magazines by C. Delores Tucker, who had campaigned against vulgarity in rap music. In an earlier libel suit by Ms. Tucker against the rapper Tupac Shakur, Ms. Tucker's husband had filed a common claim, for "loss of consortium," a legal term meaning that the injury she had suffered had also caused him to lose her marital companionship.

A lawyer for Mr. Shakur's estate pointed out that loss of consortium commonly includes damage to the couple's sexual relationship, and Time and Newsweek had some fun at the Tuckers' expense. "A lyrical attack by Tupac iced their sex life," Newsweek said of the Tuckers. They sued, saying the mockery was libel.

Judge Alito dismissed the claims. The Tuckers, he ruled, were public figures and had to prove that the magazines had acted with actual malice, that is, knowing their statements were false or entertaining doubts about their truth when they published them. The Tuckers had, he said, failed to do that.

Judge Alito seemed comfortable with the meaning of "loss of consortium" but turned to the Encyclopedia Britannica for a definition of "gangsta rap," which he reproduced in a footnote ("a marriage of languid beats and murderous gang mentality").

Judge Alito has exhibited little patience for the First Amendment claims of prisoners. In addition to his dissent in favor of barring access to publications for prisoners, he wrote for a unanimous three-judge panel in 1999 to reverse a lower court's ruling that the rights of incarcerated pedophiles were violated when their access to pornography was restricted.

"It is beyond dispute," he wrote, "that New Jersey has a legitimate penological interest in rehabilitating its most dangerous and compulsive sex offenders."

But his past First Amendment opinions may offer little insight into Judge Alito's views on looming controversies, notably how far the government can go in controlling information as it battles terrorism.

"There are some areas where he is untested, like free speech in wartime," Mr. Collins said. "Will the vibrant free speech spirit in his commercial speech and speech code cases translate into free speech in wartime, where the First Amendment butts up against executive power?"