FAN 69 (First Amendment News) Justice Alito discusses four First Amendment cases in Kristol interview — Free-Speech Jurisprudence Comes into Sharper Focus
“[I]f we lose focus on what is at the core of the free-speech protection by concentrating on . . . peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction.” — Justice Samuel Alito
Recently, Justice Samuel Alito participated in a video-recoreded interview with Bill Kristol. In the “Conversations with Bill Kristol” program the Justice discussed his legal education and the workings of the Supreme Court. He also discussed four First Amendment free-expression cases: United States v. Stevens (2010), Snyder v. Phelps (2011), United States v. Alvarez (2012), and Citizens United v. Federal Election Commission (2010).
Below are some excerpts I transcribed from the video-recorded interview in which Justice Alito discussed the First Amendment, this in response to questions posed to him by Mr. Kristol. I have added captions to the transcript and have edited it in places as well. (There is also a transcript of the entire interview (login required) on the “Conversations with Bill Kristol website.)
Following the exchange between the Justice and Mr. Kristol, I added some preliminary commentaries on what Justice Alito’s remarks may suggest about his larger First Amendment jurisprudence.
Finally, I ended with some general information about Justice Alito and his free-speech jurisprudence.
The Stevens Case
The Justice’s discussion of Stevens — the videoing of animal cruelty case — was largely descriptive. What concerned Justice Alito about the case the fact that it was “virtually impossible to find out who was [killing the animals that were being filmed]. The physical activity could be made illegal,” he noted. “[N]o one questions that . . . you could have a law against animal cruelty. Can you have a law that prohibits the creation of these videos without which the animal cruelty would not take place?”
Because of overbreadth problems, seven Justices voted to strike down the law on First Amendment grounds while Justice Alito felt otherwise and dissented.
The Phelps Case
Here, too, much of the discussion of Phelps — the military funerals protest case — was descriptive. What concerned the Justice was the fact that in “this particular case the . . . [protesters] had placards that said horrible things about [the soldier being buried] . . . It was very distressing to the family members, who were in attendance.”
“So they were sued under a very well-established tort that goes back to the nineteenth century — the intentional infliction of severe emotional distress. And I thought that this tort constituted a reasonable exception to the First Amendment, but my colleagues disagreed about that.”
Mr. Kristol: “. . . What about the obvious sort of simple argument that . . . it is a slippery slope, that you cannot curtail speech? That is kind of the argument that the majority made, in one way or the other, I would say.”
Justice Alito: “Well I think that some members of the majority — this is not based on inside information, this is what I get from reading the opinion — I think that there are those who would support the majority decision in both those cases for exactly that reason. So if we say, even in these outrageous situations, ‘we will not tolerate any abridgment of freedom of speech,’ then when something comes along that I would regard, and I think our cases would regard as really being at the core of the free-speech protection, these decisions provide a guarantee, or they provide a wall of proaction against a bad decision in those areas. If I really believed that to be the case, I might think it was an appropriate tradeoff. I don’t think that’s the case. I think that judges who are inclined to make a bad decision, an anti-free speech decision in a case involving core political speech, will find a way of getting around these little cases.”
The Alvarez Case
Justice Alito: “So what I think has been going on in those two cases and another one where I was in dissent, this time not by myself, in United States v. Alvarez, which had to do with the constitutionality of a statute passed by Congress called ‘The Stolen Valor Act,’ [which] prohibited a false claim of having received a military medal. . . .”
Mr. Kristol: “Which was happening a lot at the time.”
Justice Alito: “It was happening a lot. People were making up, you know, claiming to have won the Congressional Medal of Honor . . . “
Reflecting on Stevens, Phelps and Alvarez, Justice Alito stressed that “those cases involve a diversion, I think, of attention from the core, from what is most important about the guarantee of freedom of speech.”
He then developed that point as noted below.
Protecting Core Political Speech
Justice Alito: “I think freedom of speech protects and serves many purposes, but I believe, and I think the Court has said that at the core, whatever other purposes it may serve, it is vitally important for democratic self-government. If people cannot debate public issues, if they cannot debate the relative merits of political candidates, then democracy is basically impossible. So I think that is the core of the protection. These cases involving . . . depictions of animal cruelty, the protest at military funerals, [and] falsely claiming to have won the Congressional Medal of Honor don’t involve anything like that.”
“And if we lose focus on what is at the core of the free-speech protection by concentrating on these peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction. In the cases that we’ve had that I think involve core free speech. . . the chief example that I would give from my time on the Court is the Citizens United case. . . . [N[ow that [case] came out five to four . . . . Citizens United, I think, is core political speech. It is a video about a candidate for the Presidency of the United States. If that’s not protected by First Amendment free speech, by the First Amendment free speech guarantee, I don’t know what is.”
“So on things that are at the core, the Court has been shakier than it has been on these things that are at the periphery.”
Mr. Kristol: “So the argument that protecting the periphery helps protect the core doesn’t seem to hold in this case.”
Justice Alito: “I don’t think it works.”
Mr. Kristol: “You also make the argument, as I recall, in at least one or two of those three dissents, you make more of a positive argument for the virtues, for the right, for . . . the ability of the community to draw certain boundaries around civility or civilized behavior almost, mostly in the case of the soldiers’ funerals or all of them really, the animal cruelty [and the] lying [case]. Those are all things a community would have a reasonable interest in discouraging, to say the least.”
Justice Alito: “I think that’s true. And I think that’s appropriate in cases that don’t involve political speech. I would not make the same argument in a case . . . involving political speech. I thought all of them were cabined by specific rules, very reasonable rules. So in the animal cruelty case, I thought that was very similar to the rationale . . . against child pornography. Which is that you can’t produce child pornography without abusing a child and by stamping out child pornography, or trying to stamp out child pornography, you are attacking the underlying abuse – same thing [holds true] with these crush videos. You couldn’t stamp them out without preventing the creation and the circulation of the videos. . . . I think that kind of an argument is a dangerous argument when you’re talking about political speech. . . .”
The discussion ended with some brief additional comments about hate speech in Europe.
[ht: Tony Mauro]
Justice Alito’s exchange with Mr. Kristol helps to give us a better understanding of the Justice’s First Amendment jurisprudence. In light of what was said in that exchange, here are a few ideas that come to mind, albeit preliminary ideas:
- The Irony of Protecting Peripheral Speech While Diluting Core Speech: Justice Alito finds it curious, to say the least, that the Court can be near unanimous in cases such as Stevens and yet badly divided in cases such as Citizens United. The former he sees as peripheral speech whereas the latter he sees as core speech. And yet, the case for the former seems to be stronger in the eyes of several of his colleagues. This troubles him.
- The Democratic Self-Goverance Norm: Justice Alito places great stock in this norm: “I think freedom of speech . . . is vitally important for democratic self-government.” Of course, this seems incontestable. But I sense that there is more at stake here than a defense of the obvious. That is, it seems that this democratic self-governance norm is key to Justice Alito’s First Amendment jurisprudence, so much so that once the Court moves off that normative dime it may be venturing into the realm of unprotected speech.
- Campaign Spending Furthers the Democratic Self-Goverance Norm: While Justice Alito (like Justice Stephen Breyer and Yale Law School Dean Robert Post) places great First Amendment emphasis on the democratic self-governance norm (some would say too much), they part company when that norm is applied in the context of campaign spending, especially when done by corporations (non-profit or for-profit). Thus, Justice Alito joined the majority in McCutcheon v. Federal Election Commission (2014) while Justice Breyer invoked the democratic self-governance norm in his dissent. As Justice Breyer viewed it in that case, Justice Alito’s vote and his concurrence delegitimated the democracy norm: “Taken together with Citizens United v. Federal Election Comm’n., today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
- Reasonable Exceptions to the First Amendment: Justice Alito seems willing to deny protection for speech in at least two general instances: First, where the harm alleged is one of long-standing pedigree (e.g., the tort of the intentional infliction of emotional distress), and where the speech in question is peripheral. In the first instance, Justice Alito declared: “I thought that this tort constituted a reasonable exception to the First Amendment.” In the second instance, recall Mr. Kristol’s statement that given the harms alleged in Stevens, Phelps and Alvarez, “those are all things a community would have a reasonable interest in discouraging.” And recall Justice Alito’s response: “I think that’s true. And I think that’s appropriate in cases that don’t involve political speech. .”
- Rejection of the Slippery Slope Argument: Contrary to the conventional free-speech wisdom, Justice Alito rejects the proposition that if you deny protection to trivial or offensive nonpolitical speech, you make it that much easier to deny protection to serious core speech. Recall Mr. Kristol’s statement: “So the argument that protecting the periphery helps protect the core doesn’t seem to hold in this case.” And the Justice’s response: “I don’t think it works.” Recall, too, his other comment: “I think that judges who are inclined to make a bad decision, an anti-free speech decision in a case involving core political speech, will find a way of getting around these little cases.”
- The “Substantial Core” Exception to the Overbreadth Doctrine: Note Justice Alito’s concern about the Stevens case: It is “virtually impossible,” he declared, “to find out who was [killing the animals that were being filmed]. The physical activity could be made illegal,” he noted. “[N]o one questions that . . . you could have a law against animal cruelty. Can you have a law that prohibits the creation of these videos without which the animal cruelty would not take place?” His answer was yes, for largely the same reasons as the Court in New York v. Ferber (1982). In such instances, Justice Alito also appears to be far less sensitive to problems of overbreadth (or substantial overbreadth) than his colleagues. That is, he seems willing to cut lawmakers some constitutional slack when, as he wrote in his Stevens dissent, the law in question “has a substantial core of constitutionally permissible applications.” Finally, and this may be something of a stretch, in all of this one is reminded of what then Justice William Rehnquist said about commercial speech in Posadas de Puerto Rico Ass. v. Tourism Co. (1986): “In our view, the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling . . . .” While I am not categorical on this count, the comparison does seem beyond the pale.
Justice Alito’s First Amendment Free-Expression Opinions
- Harris v. Quinn (2014) (5-4: 1-A claim sustained)
- Knox v. Service Employees International Union (2012) (7-2: 1-A claim sustained)
- Pleasant Grove City, UT, et al v. Summum (2009) (9-0: 1-A claim denied)
- Davis v. Federal Election Commission (2008) (5-4: 1-A claim sustained)
- Walker v. Sons of Confederate Veterans (2015) (5-4: dissenting)
- Williams-Yulee v. The Florida Bar (2015) (5-4: dissenting)
- Reed v. Town of Gilbert (2015) (9-1: concurring)
- McCullen v. Coakley (2014) (9-0: concurring in the judgment)
- United States v. Alvarez (2012) (6-3: dissenting)
- Nevada Commission on Ethics v. Carrigan (2011) (9-0: concurring)
- Brown v. Entertainment Merchants Association (2011) (7-2: concurring)
- Snyder v. Phelps (2011) (8-1: dissenting)
- United States v. Stevens (2010) (8-1: dissenting)
- Christian Legal Society v. Martinez (2010) (5-4: dissenting)
- Locke v. Karass (2009) (9-0: concurring)
- Morse et al. v. Frederick (2007) (5-4: concurring)
- Randall v. Sorrell (2006) (6-3: concurring)
→ See also Elonis v. United States (2015) (statutory free speech case) (7-2: concurring & dissenting in part)
Video Clips of Justice Alito
- Lives in the Law | Associate Justice Samuel Alito (Duke University)
- U.S. Supreme Court Justice Samuel Alito on the Bill of Rights (National Constitution Center)
- Justice Alito Interviews for the Job (C-SPAN)
- Samuel Alito, Associate Justice, Part 1 (interview with Bryan A. Garner)
- Hon. Samuel Alito, Associate Justice, Part 2 (interview with Bryan A. Garner)
- Supreme Court Justice Samuel Alito Speaks at Pepperdine School of Law
- Justice Samuel Alito addresses ISI’s Fourth Annual Dinner for Western Civilization (Part I)
- Justice Samuel Alito addresses ISI’s Fourth Annual Dinner for Western Civilization (Part II)
- Three Supreme Court Justices Return to Yale
- Supreme Court Confirmation hearings: Judge Alito’s Opening Statement