The Free Speech Jurisprudence of Justice Samuel Alito

By
Garrett Epps
May 01, 2018

Garrett Epps is a professor at University of Baltimore School of Law and Supreme Court correspondent for the Atlantic.


In November of 2010, Zackery Morazzini, deputy attorney general of California, ran into the famous Scalia buzz saw at the Supreme Court. Morazzini was arguing in defense of a state statute criminalizing the sale of “violent” video games to minors. The First Amendment, Morazzini pointed out, already allows states to ban the sale of some erotic material to minors, even though that same material is protected by the First Amendment for sale to adults. The same approach, he suggested, should apply to violent material.

Justice Antonin G. Scalia spoke up. There is no longstanding exception to the First Amendment for “violent” material, he said. “You're asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment?”

Justice Samuel A. Alito Jr. rode to Morazzini’s rescue. “I think what Justice Scalia wants to know is what James Madison thought about video games,” he said. “Did he enjoy them?”

Even before he was nominated to the Supreme Court in 2005, some legal observers nicknamed the new justice “Scalito.” Though Scalia was then 69 and Alito 55, both were conservative Republicans, veterans of the Reagan administration, and Trenton, N.J.-born Italian Americans. Surely Alito, on the supreme bench, would echo Scalia’s “originalist” legal conservatism.

Anyone who still thought that by 2010 was probably disabused by the opinions in Brown v. Entertainment Merchants Association, the “violent video games” case. The Court struck down the statute 7-2. Justice Scalia’s majority opinion was based on his reading of classic print works like The Odyssey and Grimm’s Fairy Tales, which describe violence in words or depict it in woodcut illustrations. California argued that interactive digital games were different in kind from the McGuffey-style hornbooks that were common when the Constitution was written and adopted and thus merited a fresh look at the “category” of “violent” electronic entertainment. Scalia turned to an obscure recent children’s book to reject that idea as “unprecedented and mistaken”:

California claims that video games present special problems because they are “interactive,” in that the player participates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to.

Alito, joined by Chief Justice John G. Roberts Jr., concurred in a separate opinion. (Justices Clarence Thomas and Stephen G. Breyer each wrote a dissent.) The California statute, Alito agreed, was unconstitutionally vague: “the California law does not define ‘violent video games’ with the ‘narrow specificity’ that the Constitution demands,” he wrote. But, Alito said,

We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. . . . There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show. . . . [T]hink of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.

This Alito-Scalia clash illustrates Alito’s approach to constitutional interpretation in general and to First Amendment questions in particular. “I think I would consider myself a practical originalist,” he told an interviewer in 2014. But that act of self-labeling was at most a polite nod to current judicial fashion. As his opinions show, he takes careful notice of text but pays no special attention to “original public meaning.”

He is no “Scalito”: “originalist” methodology often strikes him as faintly ridiculous. As a Justice, he is very aware that technological advances have created realms of expression whose psychological and social effects are only beginning to be revealed. In an inversion of standard First Amendment jurisprudence, he argues that the Court should not presume that new forms of expression are protected. Instead, the question should be regarded as open until the Court can be sure that the effects of the new technology or the new area of speech are not socially harmful.

This concern for consequences is part and parcel of Alito’s overall judicial philosophy. In case after case, he has suggested that the Court should ground its judgment in a sense of the social consequences of its decisions.

Alito approaches speech cases with a very particular focus. The video game Alito imagines — enacting the murder from Crime and Punishment — is a disturbing one. But however much like murder the game’s depiction may be, it is not murder. Avatar Raskolnikov may chop up avatar Ivanovna, but no human being dies. Like a film viewer intently watching a slasher scene, Alito seems so caught up in the horror that he elides that distinction.

That tendency — to mistake what the law calls expressive activity for actual conduct — distinguishes Alito’s free-speech jurisprudence, and it makes him, in the words of scholar Neil S. Siegel, “the least free-speech libertarian on the Roberts Court.” In speech cases, Alito, unlike Scalia, is powerfully influenced by the negative emotive power of a given form of speech — its ability to distress, threaten, or intimidate its audience.

Standard First Amendment doctrine centers around Justice Oliver Wendell Holmes’ warning that courts “should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.” Alito, however, has an unusually vivid sense of the fraughtness of speech. As in the Raskolnikov example, he conflates violent or harsh expression with actual violence and assault.

Alito often seems to decide cases with his heart. As Emily Bazelon of the New York Times noted, he is highly empathetic — but his is a “selective empathy,” and this is true in free-expression cases in particular. Certain groups, and certain values, are to be strongly protected from the violence implicit in robust or disturbing expression. Siegel depicts this emotional commitment thus:

More than any other Justice, he uses his judicial voice to express the values of those with “traditional views” who were once real or imagined majorities and are now increasingly minorities with respect to a variety of “culture war” issues. Majorities- turned-minorities, not “discrete and insular minorities,” seem to be the objects of Justice Alito’s concern.

Alito’s decisions are also strongly influenced by his reflexive deference to the state. Power, along with “tradition,” is the object of his solicitude. And if he sees speech as close to assault or crime, he is very concerned with situating both the speaker and the audience within a web of relationships with the state and with tradition.

His focus is on what might be called the centrality of speakers and of hearers. Alito envisions an American social center occupied by holders of power, wealth, and traditional values. The closer to this “center” the speaker lies, in his analysis, the more robustly the speaker’s speech should be protected. Conversely, if the speaker comes from the racial, sexual, political, religious, or any other periphery of society, the speech should be skeptically weighed against its capacity to harm people and institutions that are more “central.”

... in the words of scholar Neil S. Siegel, Justice Alito is 'the least free-speech libertarian on the Roberts Court.'"

Begin with Alito’s most prominent contribution to First Amendment jurisprudence: the elaboration of the “government speech” doctrine, which concerns the most powerful, and most central, speaker in contemporary society. This doctrine holds that the First Amendment poses no obstacles to expression by government itself, even when marginal individuals or groups might find that expression stigmatizing or exclusive. Government must achieve many if not most of its aims through speech directly to the public; if such speech choices were constrained by First Amendment requirements of neutrality and inclusion, the argument runs, government would never be able to advance any policies by speech.

Move slightly outward from that center, to First Amendment issues involving campaign finance: Alito assesses regulations on the basis of their effect on powerful people or corporations with the resources to spread their views among a wide audience and not on any putative harm to democracy or to those who lack the same resources. The speech of labor unions, however, he judges far more skeptically — because, in his view, unions are politically marginal and indeed dangerous. Finally, speech of marginalized groups — religious or sexual minorities, for example — should be subject to lesser or no solicitude, especially when its negative emotive impact falls on people or institutions traditionally considered “good” — ­­the military, military families, conservative Christians, and so on.

 “Government Speech.” This inconsistent concern with the effect of exclusion is apparent in Alito’s “government speech” decisions. “The Free Speech Clause restricts government regulation of private speech,” Alito wrote for the Court in 2009. “[I]t does not regulate government speech.” The case, Pleasant Grove City v. Summum, was a challenge to a Utah city’s refusal to accept a monument from a marginal religious group for use in a city park. The city had accepted a number of privately donated monuments, including a stone tablet of the biblical Ten Commandments, but refused to allow Summum, a small, mystical non-Christian religious movement, to donate a comparably sized tablet bearing its oracular “seven aphorisms” (“As above, so below; as below, so above,” for example).

By placing the Ten Commandments in the park, the city government had adopted the explicitly religious message of a majority faith; Alito, writing for eight justices, held that government speech need not be neutral in its viewpoint and may express majority values and reject minority values. He assessed government monuments in explicit terms of centrality and power: “Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance.”

Speech by government (from the center) to any audience on any subject is free of First Amendment constraint. Speech by government workers to the government (from periphery to center), even if confined on work-related matters, is, by contrast, subject to special restraints applied in no other area. Corporations may use funds of unwilling shareholders for political speech. Unions may not use non-member funds for non-political speech.

In the next major “government speech” case, Walker v. Texas Division, Sons of Confederate Veterans, however, the center-periphery polarity was reversed — and Alito, too, reversed his stance. A fraternal lodge made up of Confederate descendants demanded that the state supply them with an official vanity license plate — available to many groups — using the lodge’s favored logo, which contained a Confederate battle flag. As recent events have demonstrated, many Americans, especially racial minorities, view the battle flag as a symbol of exclusion, hostility, and even racial violence — no matter what those displaying it intend. The Court’s majority held that because the plates were “government speech” (like the Ten Commandments monument), the state had no obligation to provide a license plate that would be offensive or even alarming to some who saw it.

Alito dissented. Viewpoint neutrality, irrelevant in the Summum case, was central in this one, he wrote. The plates were not “government speech”; they were “little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.” Unspoken in this calculation was that the offense, or message of exclusion, sent by state endorsement of the Ten Commandments had fallen against a marginal group. Refusal to transmit the hateful Confederate image was “viewpoint discrimination” against the “traditional” viewpoint and in favor of minority groups. He argued, in effect, that government may not refuse to accommodate some forms of “traditional” speech in its own operations, even where it has determined that such speech may subject racial and religious minorities to offense or even intimidation.

Campaign finance. Alito finds no threat to democracy in political speech by wealthy individuals and large corporations. Indeed, he has never voted to approve any restriction on private money in politics. Alito’s first campaign finance opinion for the court, Davis v. Federal Election Commission, invalidated a “Millionaire’s Amendment” to a state law aimed at neutralizing the effect of use of personal funds by wealthy political candidates. If a wealthy candidate contributed more than $350,000 to his or her own campaign, the ordinary limits on the size of individual contributions to his or her opponent’s campaign would be raised to allow the opponent to counter the expenditure. Alito’s opinion focused on “the right to use personal funds to finance campaign speech.” Since “vigorous” use of personal funds produced “fundraising advantages for opponents,” the increase in contribution limits was an unconstitutional burden on the rich candidate’s rights.

Alito voted with the majority in Citizens United v. Federal Election Commission (2010) to hold that Congress cannot restrict independent “electioneering communications” by individuals, corporations, and unions during the period before federal elections; in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011), he joined the majority to reject a state public-finance scheme that granted additional public funds to publicly funded candidates whose privately funded opponents exceeded spending limits. In McCutcheon v. Federal Election Commission (2014), he voted to negate a federal law limiting the total amount of money an individual donor could give to federal candidates in a given two-year election cycle (this ceiling limited the number of candidates to whom a wealthy donor could contribute the maximum per cycle), arguing that, since by law it was not corrupt to contribute the individual limit to nine candidates, contributing the same amount to ten or more could not be corrupt either.

Public employee unions. Alito’s solicitude for institutional political speech, however, suffers a sea change when the speaker is a public employee union. The 1977 precedent of Abood v. Detroit Board of Education allows states to authorize state employees to select “exclusive bargaining representative” unions for their work units. The union must represent all workers, whether union members or not, and in return may collect “agency fees” from non-members they are required to represent. The fee, however, cannot include funds for explicitly political speech (campaign, lobbying, or issue litigation expenses).

Since 2012, Alito has led a remarkable one-Justice campaign to reverse this precedent. The same First Amendment that allows corporations to expend shareholder funds for direct electioneering, Alito theorizes, forbids public employee unions to collect fees from workers for expenses they incur in direct, non-political representation of those workers—that is, for purposes such as support for contract negotiations, grievance representation, and employee training. Twice — in 2014 and 2016 — he seemed to be on the verge of success; in the current term, with the addition of Justice Neil Gorsuch to the Court, he will almost certainly succeed in Janus v. American Federation of State, County, and Municipal Employees.

Alito does not pretend that his attack on the precedent is motivated by anything but distaste for the political viewpoint and influence of the unions. To him, even straightforward labor-related speech by unions, because it addresses government operations, is inherently “political,” since it tends to boost government expenditures and drive states and localities into debt. That, in Alito’s analysis, renders the fees impermissible as “compelled speech” extorted from non-members.

“Marginal” speech and speakers. In a remarkable string of individual speech cases, Alito has argued passionately for restrictions on speech by marginal figures and for protection of more “traditional” speakers or “traditional” values.

In United States v. Alvarez (2012) Alito dissented for himself and Justices Scalia and Thomas from a majority opinion invalidating the federal Stolen Valor Act, which made it a crime to lie about having received a U.S. military award, with no requirement that the deception helped gain any advantage or payment. The government has no free-floating power to punish lies, Justice Anthony M. Kennedy argued: “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” Alito’s dissent suggested that he was willing to exclude all false speech from protection by the First Amendment. The “speech punished by the Act is not only . . . entirely lacking in intrinsic value” but is also a kind of assault on government — “undermining our country's system of military honors and inflicting real harm on actual medal recipients and their families.”

He was similarly willing to find new categorical exceptions to free speech in United States v. Stevens (2010). Alito was the sole dissenter from an opinion striking down a federal statute that criminalized the creation, sale, or possession of videos depicting animal killing or cruelty — even where the conduct was entirely legal where filmed. It would have criminalized a great deal of protected expressive material, including cable-TV hunting shows; this statutory flaw — punishing a great deal of protected speech to reach a small amount of unprotected speech — is called “substantial overbreadth.” Alito, however, fixated not on the legal speech the law affected but on the repellent speech it had sought to target.

In Snyder v. Phelps (2011), the Court held that the First Amendment protected anti-gay demonstrators from paying tort damages for emotional distress to a military family after they held a peaceful picket of a military funeral. In large part that result was necessary, the majority said, because the speech was on an important public issue, violated no law, and was not in fact visible by those attending the service. Alito was the sole dissenter. The demonstration, to Alito, was not really speech at all but assault: the protesters had “brutally attacked” the dead marine and his family as part of a “well-practiced strategy for attracting public attention.” Alito rejected the majority’s contention that the speech was on a matter of public interest. “Our profound national commitment to free and open debate is not license for the vicious verbal assault that occurred in this case,” he wrote. The conflation of criticism with assault and violence provides the energy behind his dissent.

Alito envisions an American social center occupied by holders of power, wealth, and traditional values. The closer to this 'center' the speaker lies, in his analysis, the more robustly the speaker’s speech should be protected.

In Obergefell v. Hodges (2015), the Court held that states must permit and recognize marriages between consenting adult same-sex couples. Obergefell was not a speech case, but in dissent Alito expressed concern with the negative emotive effects of certain speech on those with “traditional” beliefs. The similarity between criticism and assault surfaced again: “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes,” he wrote, “but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

This passage, seemingly unconsciously, echoes descriptions by gay men and lesbians of being historically closeted in a homophobic society, unable to share the truth of their sexual orientation to family, employers, and society at large. Alito suggests that recognition of rights of this minority will inevitably subject the majority to terrifying bullying by means of spoken criticism.

A surprising amount of Alito’s jurisprudence — under the First Amendment and in other contexts — seems motivated by a visceral contempt for what he called “the prevailing standard of political correctness.” What others might see as demands by marginal groups for recognition of their experience and of their expressive rights, Alito depicts as attempts at repression. White people and “traditional values,” he repeatedly suggests, are being persecuted by these groups.

Underlying Alito’s free-speech jurisprudence is a profound anxiety about the impact of social change on those he deems worthy of protection. He combines selective empathy with an acute awareness of the sensitivities of the social groups he favors, once real or imagined majorities but now, increasingly, minorities. Alito draws from a rich rhetorical palette to describe a group’s social exclusion, fear, and isolation and the negative effects of speech. In his view, though, those feelings merit protection only when felt by the deserving — those at the center of power, wealth, and traditional values.