Judge Samuel Alito's Opinions in Freedom of Speech Cases

Congressional research reportDec 9, 2005

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Order Code RL33182

CRS Report for Congress

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Judge Samuel Alito’s Opinions in Freedom of

Speech Cases

December 9, 2005

name redacted

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Judge Samuel Alito’s Opinions in Freedom of Speech

Cases

Summary

Judge Samuel Alito, who has been nominated by President Bush to take retiring

Justice Sandra Day O’Connor’s seat as associate justice of the U.S. Supreme Court,

has been a judge on the U.S. Court of Appeals for the Third Circuit since 1990. This

report examines his major judicial opinions, both for the majority and in dissent, in

freedom of speech cases. It also briefly discusses some cases in which he joined the

opinion for the court but did not write it. This report examines Judge Alito’s free

speech opinions by subject area.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Prisoners’ Free Speech Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Teachers’ Free Speech Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Students’ Free Speech Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Discrimination Against Religious Speech . . . . . . . . . . . . . . . . . . . . . . . 6

Zoning of “Adult” Establishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Erotic Dancing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Commercial Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Public Employees’ Speech Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Freedom of Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Judge Samuel Alito’s Opinions in Freedom

of Speech Cases

Introduction

Judge Samuel Alito, who has been nominated by President Bush to take retiring

Justice Sandra Day O’Connor’s seat as associate justice of the U.S. Supreme Court,

has been a judge on the U.S. Court of Appeals for the Third Circuit since 1990. This

report examines his major judicial opinions, both for the majority and in dissent, in

freedom of speech cases.1 It also briefly discusses some cases in which he joined the

opinion for the court but did not write it.

Freedom of speech cases involve interpretations of the part of the First

Amendment that provides, “Congress shall make no law ... abridging the freedom of

speech, or of the press.” The Supreme Court has interpreted this restriction to apply

not only to Congress, but to every level of government — federal, state, and local —

and to all three branches of government — executive, legislative, and judicial. The

Supreme Court has also found that “no law” should not be taken literally, and it is

clear that the government may prohibit speech that consists of, among other things,

threatening to kill someone, conspiring to commit a crime, offering a bribe, engaging

in perjury, treason, or false advertising, or, to cite Oliver Wendell Holmes’ famous

example, falsely shouting fire in a theater. Freedom of speech cases thus involve

deciding just what exceptions apply to the mandate that there shall be “no law ...

abridging the freedom of speech.”2 This report examines Judge Alito’s free speech

opinions by subject area.

Prisoners’ Free Speech Rights. In Banks v. Beard, the Third Circuit, with

Judge Alito dissenting, struck down a prison policy that prohibited inmates, who had

been segregated from the general prison population for being disruptive, from having

“access to photographs, and all newspapers and magazines which are neither legal

nor religious in nature.”3 The Supreme Court has agreed to review the case.

The majority opinion relied on the Supreme Court’s decision in Turner v. Safley

Courts of appeals decisions are made by three-judge panels, except when they are decided

“en banc” by the entire court, which, in the Third Circuit, consists of 12 judges. Two of the

decisions discussed in this report were en banc: Banks v. Beard and C.H. ex rel. Z.H. v.

Oliva.

For additional information, see CRS Report 95-815, Freedom of Speech and Press:

Exceptions to the First Amendment, by (name redacted)

399 F.3d 134, 148 (3d Cir. 2005), cert. granted, No. 04-1739 (Nov. 14, 2005).

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“that a prison regulation that impinges on inmates’ constitutional rights ‘is valid if

it is reasonably related to legitimate penological interests.’”4 The Third Circuit

wrote:

The Supreme Court articulated an analytical framework within which the

reasonableness of such a regulation is assessed by weighing four factors. First,

there must be a “valid, rational connection between the prison regulation and the

legitimate governmental interest put forward to justify it.” Second, the court

must determine “whether there are alternative means of exercising the right that

remain open to prison inmates.” Third, the court must assess “the impact

accommodation of the asserted constitutional right will have on guards and other

inmates” and prison resources generally. Finally, the court must consider

whether there are “ready alternatives” to the regulation that “fully accommodate

the prisoners’ rights at de minimus [sic] cost to valid penological interests. The

existence of such alternatives is evidence that the regulation is an “exaggerated

response to prison concerns.”5

The Third Circuit applied these four factors and found, as to the first factor, that

prison officials had offered no evidence that the speech restriction had a rational

connection to the legitimate governmental interests in rehabilitation of prisoners or

security; as to the second factor, that inmates had no alternative means to exercise

their “First Amendment right of access to a reasonable amount of newspapers,

magazines, and photographs”6; and, as to the third and fourth factors, that alternative

policies that were less restrictive of First Amendment rights would have only a

minimal impact on prison resources. These alternative policies were to establish

specific reading periods in which guards deliver a single newspaper or magazine to

an inmate’s cell and retrieve it at the end of the period, or to escort prisoners “to the

secure mini-law library to read a periodical of their choosing.”7

Judge Alito dissented, disagreeing with the majority’s application of all four

Turner v. Safley factors. As to the first factor, he argued that it was rational for

prison officials to think that their First Amendment restriction would deter inmates

who were not in segregated confinement from engaging in misconduct that could

send them there, and would deter inmates who were in segregated confinement from

engaging in misconduct that could keep them there longer. Judge Alito also argued

that prison officials need not offer evidence that their rule achieves its rehabilitative

purpose because all that Turner v. Safley requires is a “logical connection between

the regulation and the asserted goal.”8 As to the second factor, Judge Alito argued

that inmates could receive information about current events from books in the prison

library and could receive letters from family members and friends, even if not

photographs. As to the third and fourth factors, Judge Alito found that the alternative

policies that the majority suggested would impose significant burdens on prisons.

Id. at 139, quoting Turner v. Safley, 482 U.S. 78, 89 (1987).

Id. (citations omitted).

Id. at 145.

Id. at 147.

Id. at 149, quoting Turner v. Safley, 482 U.S. at 89 (emphasis added by Judge Alito).

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The Supreme Court is likely to decide Banks v. Beard before the end of June

2006, but not before the Senate votes on whether to confirm Judge Alito’s

nomination.

In Waterman v. Farmer, Judge Alito wrote a unanimous opinion upholding a

New Jersey statute that denied access to sexually oriented material to inmates who

were imprisoned as pedophiles, child molesters, or rapists.9 Applying Turner v.

Safley’s first prong, Judge Alito found “that New Jersey has a legitimate penological

interest in rehabilitating its most dangerous and compulsive sex offenders,” and

“could rationally have seen a connection between pornography and rehabilitative

values.”10 Applying the second prong, Judge Alito found that the statute was not so

broad as “to forbid prisoners from reading the Bible, legal publications, or other nonpornographic books,” and therefore left the plaintiffs with alternative means to

exercise their constitutional rights.11 Applying the third and fourth prongs, Judge

Alito concluded that the less-restrictive alternative of the prison’s reviewing

incoming publications on a case-by-case basis would have costs that would be “far

from de minimis” and “would have an unduly burdensome effect ‘on guards ... and

on the allocation of prison resources.’”12

Teachers’ Free Speech Rights. In Edwards v. California University of

Pennsylvania, Judge Alito wrote a unanimous opinion for the Third Circuit holding

“that the First Amendment does not place restrictions on a public university’s ability

to control its curriculum.”13 The case was brought against the university by a tenured

professor who alleged that the university had violated his First Amendment rights by

suspending him for teaching from a nonapproved syllabus in order to advance his

religious beliefs. Judge Alito quoted from a Supreme Court case holding that “when

the State is the speaker, it may make content-based choices. When the University

determines the content of the education it provides, it is the University speaking.”14

In Sanguigni v. Pittsburgh Board of Public Education, Judge Alito wrote a

unanimous opinion for the Third Circuit upholding a public high school’s power to

remove a teacher from her coaching positions for publishing certain statements in a

faculty newsletter.15 The teacher’s statements had focused on employee morale,

asserting “that some faculty members were ‘being put under undue stress,’ had

experienced ‘bad luck,’ and had left the building with ‘low esteem.’”16 Judge Alito

wrote: “While holding that public employees enjoy substantial free speech rights, the

183 F.3d 208 (3d Cir. 1999)

Id. at 215, 217.

Id. at 218-219.

Id. at 220.

156 F.3d 488, 491 (3d Cir. 1998).

Id., quoting Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819,

833 (1995).

968 F.2d 393 (3d Cir. 1992).

Id. at 399.

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Supreme Court has nevertheless recognized that ‘the State has interests as an

employer in regulating the speech of its employees,” and that, [w]ith respect to

personnel actions, ... First Amendment rights are implicated only when a public

employee’s speech relates to matters of public concern.”17 In Sanguigni, the

teacher’s statements did not relate to a matter of public concern, and her free speech

claim, Judge Alito found, had been properly dismissed by the lower court.

Students’ Free Speech Rights. In Saxe v. State College Area School

District, the Third Circuit, in an opinion by Judge Alito, found a public school

district’s “Anti-Harassment Policy” unconstitutionally overbroad because it

prohibited “a substantial amount of speech that would not constitute actionable

harassment under either federal or state law.”18 Even “[a]ssuming for present

purposes that the federal anti-discrimination laws are constitutional in all of their

applications to pure speech, we note that the [school district’s] Policy’s reach is

considerably broader. For one thing, the Policy prohibits harassment based on

personal characteristics that are not protected under federal law. ... [Federal statutes]

cover only harassment based on sex, race, color, national origin, age and disability.

The Policy, in contrast, is much broader, reaching, at the extreme, a catch-all

category of ‘other personal characteristics’ (which, the Policy states, includes things

like ‘clothing,’ ‘appearance,’ ‘hobbies and values,’ and ‘social skills’). ... By

prohibiting disparaging speech directed at a person’s ‘values,’ the Policy 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. That speech about ‘values’ may offend is not cause for its prohibition,

but rather the reason for its protection ... .”19

Nevertheless, school students do not have full First Amendment rights, so Judge

Alito “examine[d] whether the Policy may be justified as a permissible regulation of

speech within the schools.” He noted Supreme Court cases that hold that “a school

may categorically prohibit lewd, vulgar or profane language,” and “may regulate

school-sponsored speech ... on the basis of any legitimate pedagogical concern.

Speech falling outside of these categories ... may be regulated only if it would

substantially disrupt school operations or interfere with the rights of others.”20 Judge

Alito found that the Policy “appears to cover substantially more speech than could

be prohibited under” this test.21 Among the speech it unconstitutionally covered was

speech that has the “purpose” of disruption, even when there was no reasonable basis

to believe that it would cause substantial disruption; and speech that offends but does

not interfere with the rights of others. Furthermore, “harassment” as defined by the

Policy did not necessarily rise to the level of substantial disruption.

Id. at 396-397, quoting Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

240 F.3d 200, 204 (3d Cir. 2001).

Id. at 210.

Id. at 214.

Id. at 217.

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Saxe included a concurring opinion by Judge Rendell but no dissent. Judge

Rendell expressed “strong disagreement with the notion ... that the judicial analysis

of permissible restrictions on speech in a given setting should be affected — let alone

dictated — by legislative enactments intended to proscribe activity that could be

classified as ‘harassment.’”22

In C.H. ex rel. Z.H. v. Oliva, the plaintiff was a kindergarten student in a class

in which the students were asked to make posters depicting what they were thankful

for on Thanksgiving Day.23 The plaintiff produced a poster indicating that he was

thankful for Jesus, and his poster was displayed in the hallway of the school, along

with those of his classmates. Subsequently, however, Board of Education employees

removed the poster because of its religious theme, and later the child’s teacher

returned the poster to the hallway, but in a less prominent location at the end of the

hallway. A free speech claim was filed on behalf of the student.

The Third Circuit, en banc, did not reach the merits of the free speech claim, in

part because it found that it was “not alleged that the removal occurred as a result of

any school policy against the exhibition of religious material,” or “that the restoration

to ‘a less prominent place’ was the result of a school policy or an authoritative

directive from [the principal or superintendent].”24 Judge Alito dissented, writing:

I would hold that discriminatory treatment of the poster because of its “religious

theme” would violate the First Amendment. Specifically, 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.25

The final phrase in this quotation implies that the school’s restriction on free

expression would be constitutional if it satisfied strict scrutiny. What Judge Alito

meant by this was that, if the poster “would have ‘materially disrupt[ed] classwork

or involve[d] substantial disorder or invasion of the rights of other” students, then its

discriminatory treatment would be permitted as an exception to the First Amendment.

Otherwise, to treat the poster differently “because it expressed thanks for Jesus,

rather than for some secular thing ... was quintessential viewpoint discrimination, and

it was proscribed by the First Amendment. ...”26 Judge Alito added that for the

school to display the poster would not have violated the Establishment Clause

because “[t]he Establishment Clause is not violated when the government treats

religious speech and other speech equally and a reasonable observer would not view

the government practice as endorsing religion.”27 Judge Alito would have sent the

case back to the lower court to determine whether the poster had been treated in a

Id. at 218.

226 F.3d 198 (3d Cir. 2000) (en banc), cert. denied, 533 U.S. 915 (2001).

Id. at 202.

Id. at 210.

Id.

Id. at 212.

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discriminatory fashion because of its religious content and, if so, whether the

discrimination satisfied strict scrutiny.

Discrimination Against Religious Speech. In Child Evangelism

Fellowship of New Jersey Inc. v. Stafford Township School District, Judge Alito

wrote a unanimous opinion affirming a preliminary injunction issued against a public

school district to require it to allow a religious group “to hand out materials and staff

a table at Back-to-School nights.”28 Judge Alito noted that, although the school

district “had no constitutional obligation to distribute or post any community group

materials or to allow any such groups to staff tables at Back-to-School nights[,] ...

when it decided to open up these fora to a specified category of groups (i.e., nonprofit, non-partisan community groups) for speech on specific topics (i.e., speech

related to the students and the schools),” it could not “discriminate against speech on

the basis of its viewpoint.”29

The school district had discriminated against the religious group because it

feared that to allow it to speak on school property would violate the Establishment

Clause of the First Amendment, which prohibits the government from endorsing

religion. But Judge Alito found that the speech was not school-sponsored, because

the school district’s purpose in allowing the distribution and posting of community

group materials was “not to convey its own message” but was “to ‘assist all

organizations’ in the community.”30 Because the plaintiff’s speech was private and

not school-sponsored, the fact that it was religious did not cause it to violate the

Establishment Clause. The plaintiff, therefore, was likely to succeed on the merits

of its case and was entitled to a preliminary injunction pending trial.

Zoning of “Adult” Establishments. In Phillips v. Borough of Keyport, a

district court had dismissed a lawsuit before trial, but the Third Circuit ruled that it

should go forward and sent it back for trial.31 Judge Alito concurred, but dissented

with respect to allowing one of the claims to go forward. The lawsuit was over the

denial of an application to open an adult book and video store at a particular location.

The denial was based on an ordinance that prohibited such establishments from being

located within 500 feet of a residence, church, school, playground, or the like.

Sexually explicit material is protected by the First Amendment unless it

constitutes obscenity or child pornography, neither of which was at issue in Phillips.

Speech that is protected by the First Amendment may not be regulated on the basis

of its content unless the regulation satisfies strict scrutiny. This means, as the court

in Phillips wrote, that content-based regulations “will be sustained only if they are

shown to serve a compelling state interest in a manner which involves the least

possible burden on expression.”32

386 F.3d 514, 522 (3d Cir. 2004).

Id. at 526.

Id. at 525.

107 F.3d 164 (3d Cir. 1997), cert. denied, 522 U.S. 932 (1997).

Id. at 172.

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Now, it might appear that a regulation that limits the location of a bookstore

because it sells sexually explicit material discriminates against the bookstore on the

basis of the content of its material, and that such a regulation therefore should be

subject to strict scrutiny. The Supreme Court, however, has held that regulations that

“are justified without reference to the content of the regulated speech” are to be

regarded as content-neutral.33 The regulation at issue in Phillips was justified

allegedly not on the basis of animus toward sexually explicit material, but “to prevent

the deterioration of the community” and “to ensure [its] economic prosperity” and

“well being of the quality of life.”34

Regulations of speech that are regarded as content-neutral, however, are not

necessarily constitutional. Although they are not subject to strict scrutiny, they are

subject to “intermediate” scrutiny, which, as the court in Phillips explained, means

that they will be upheld only if “they are narrowly tailored to serve a significant or

substantial governmental interest; and ... they leave open ample alternative channels

of communication.”35 (Thus, a city could not prohibit adult bookstores at all

locations, or allow them only at excessively inconvenient ones.) Intermediate

scrutiny may be contrasted with strict scrutiny in that a regulation may be narrowly

tailored without necessarily imposing the least possible burden on expression, and

may serve a significant or substantial governmental interest without necessarily

serving a compelling one.

In Phillips, the district court had concluded “that the Ordinance is an effort to

suppress the secondary effects of sexually explicit expression and not sexually

explicit expression itself,” and that it “was narrowly tailored to achieve that

objective.”36 The court of appeals, however, concluded “that the district court was

simply not in a position to make these findings,” and therefore sent the case back to

the district court to hear evidence on these matters.37 The court of appeals added that

“our First Amendment jurisprudence requires that the Borough identify the justifying

secondary effects with some particularity,” and that “[t]o insist on less is to reduce

the First Amendment to a charade in this area.”38

On another point, the court of appeals did not take a strong free-speech position.

It held that, although there must “be a factual basis for a legislative judgment [as to

the existence of secondary effects] presented in court when that judgment is

challenged,” there is no “requirement that such a factual basis have been submitted

to the legislative body prior to the enactment of the legislative measure.”39 Judge

Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48 (1986) (emphasis in original).

107 F.3d at 170.

Id. at 172.

Id. at 173.

Id.

Id. at 175.

Id. at 178.

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Rosenn, dissenting, observed that “not a single court of appeals has interpreted

Renton as requiring absolutely no pre-enactment evidence.”40

Judge Alito concurred with the court of appeals majority as to all of the above.

He dissented, however, from part IV of the decision, in which the majority held that,

on remand, the district court should also consider the plaintiffs’ claim that their right

to substantive due process was violated when their application was subjected to

“denial, delay and revocation” because of defendants’ “dislike of the proposed adult

entertainment expression.”41 Judge Alito dissented because he believed that, even

if the plaintiffs’ application had been rejected for improper reasons, he was not

convinced “that every ill-motivated governmental action that restricts the use of real

estate constitutes a violation of substantive due process.”42 He believed, therefore,

that the district court had properly dismissed the substantive due process claim. His

dissent thus did not turn on a point of First Amendment law.

In Terminello v. City of Passaic, Judge Alito joined an unreported decision in

a case that challenged a requirement that, in order to qualify for an entertainment

license, a theater must employ an off-duty police officer as part of its security team.43

Although the opinion does not state that this theater was an “adult” establishment,

we include it in this section because, like the zoning restriction in Phillips, the

requirement here was aimed at combating the secondary effects of speech rather than

at regulating speech on the basis of its content. The district court had granted the

theater a preliminary injunction that allowed it to operate pending trial. The City

appealed, and the Third Circuit vacated the preliminary injunction because the lower

court had used the wrong standard in granting the injunction. It should have used the

intermediate scrutiny standard that is applicable to restrictions that are justified

without regard to the content of speech, which is that such restrictions must be

“narrowly tailored to serve a substantial or significant government interest; and ...

leave[ ] open ample alternative channels for communication.”

The Third Circuit found that the district court could not have properly

determined whether the restriction was narrowly tailored “because there is no

evidence in the record establishing the cost of hiring off-duty police officers as

compared to bonded security guards ... .” The Third Circuit, therefore, sent the case

back to the district court for the district court to receive evidence on this question and

then determine whether the requirement was narrowly tailored and whether it should

reissue the preliminary injunction.

Erotic Dancing. In Conchatta, Inc. v. Evanko, the plaintiffs were a

“gentleman’s club” in Philadelphia and two erotic dancers who worked there. They

challenged as violating the First Amendment a Pennsylvania statute that prohibits

Id. at 189. Renton is a Supreme Court case that upheld zoning of adult theaters; it is cited

in n. 33, supra.

Id. at 181.

Id. at 186.

118 Fed. Appx. 577 (3d Cir. 2004) (per curiam).

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“lewd, immoral, or improper entertainment” in a facility holding a liquor license. 44

They requested a preliminary injunction, pending a trial, against the enforcement of

the statute. The district court denied their request, and the Third Circuit, in an

unreported decision joined by Judge Alito, affirmed. The court noted that, to be

granted a preliminary injunction, “a plaintiff must show both (1) that the plaintiff is

reasonably likely to succeed on the merits and (2) that the plaintiff is likely to

experience irreparable harm without the injunction.”

Applying this standard, the court of appeals found that the plaintiffs “have made

a strong case that the statute is overbroad,” which means that it restricts speech that

is protected by the First Amendment. But the court did not find it necessary to decide

the question, because it held that “the plaintiffs are nevertheless not entitled to a

preliminary injunction because, as the District Court held, the plaintiffs failed to

show that the denial of their motion for a preliminary injunction would result in

irreparable harm.” This was because “the plaintiffs have never been cited for

violating the statute or regulations, and there is no imminent threat of such action.”

A dissenting judge found that “[t]he plaintiff dancers have already suffered

irreparable harm and will continue to suffer irreparable harm if their motion for a

preliminary injunction is not granted.” This was because the dancers’ “uncertainty

as to what the regulation prohibits and their fear of being found in violation” caused

them “to restrain their performances.” The dissent quoted the Supreme Court as

having said that “the loss of First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury.”45

The district court later decided the case on the merits and found the statute

unconstitutional to the extent that it contained the words “immoral” and “improper”

because “[t]here can be no doubt that the terms ‘immoral or improper’ are vague,”

and therefore the statute “does not provide reasonably clear notice of what is and

what is not prohibited.”46 The court upheld the statute insofar as it applied to “lewd”

conduct, as it found that “lewd” was “sufficiently clear so as not to constitute

unconstitutional vagueness.”

Defamation. Tucker v. Fischbein was a defamation case for which Judge

Alito wrote the Third Circuit’s 2-to-1 opinion.47 The suit was brought by William

Tucker and his wife, C. Delores Tucker, a crusader against “gangsta rap” lyrics,

against the estate of rapper Tupac Shakur and several companies connected with the

production of an album of Shakur’s. The plaintiffs alleged that Shakur on the album

had attacked Mrs. Tucker “using ‘sexually explicit messages, offensively coarse

language and lewd and indecent words’ and that she had received death threats

because of her activities.”48 The plaintiffs sued for defamation, alleging that the

83 Fed. Appx. 437, 2003 WL 22931320 (3d Cir. 2003) (per curiam).

Elrod v. Burns, 427 U.S. 347, 373 (1976).

Conchatta, Inc. v. Evanko, 2005 WL 426542 (E.D. Pa. 2005).

237 F.3d 275 (3d Cir. 2001), cert. denied, 534 U.S. 815 (2001).

Id. at 280.

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husband had suffered a loss of consortium as a result of the lyrics. Loss of

consortium means loss by one spouse of the comfort and society of the other, and

may, but does not necessarily, include the loss of sexual relations.

Richard Fischbein, the lawyer representing Shakur’s estate, was quoted in the

press as expressing skepticism about the claim that the lyrics could have destroyed

Mrs. Tucker’s sex life. The plaintiffs then amended their complaint to include

Fischbein as a defendant for having defamed them by characterizing their loss of

consortium claim as a claim for loss of sexual relations. Fischbein subsequently

again expressed his skepticism of the claim that the lyrics could have destroyed Mrs.

Tucker’s sex life, and the Tuckers amended their complaint again, to add another

defamation claim against Fischbein, as well as one against Time, and Newsweek for

publishing his comment.

Fischbein, Time, and Newsweek moved for summary judgment, and the federal

district court granted their motions, which means that it dismissed the case without

allowing it to go to trial. It did so because the Tuckers were “public figures” under

defamation law, and could not prove by clear and convincing evidence that the

defendants acted with “actual malice,” as public figures must do to win a defamation

case. To act with “actual malice” means to make a defamatory statement “with

knowledge that it was false or with reckless disregard of whether it was false or

not.”49

On appeal, in order to show that Fischbein had acted with actual malice, “the

Tuckers argue[d] that Fischbein, as a lawyer, should have known that a claim for loss

of consortium may not have anything to do with damage to sexual relations,” so he

“was at least reckless when he told the press that Mrs. Tucker was trying to recover

for injury to her sex life.”50 Judge Alito rejected this argument with respect to the

first time that Fischbein made a statement to the press, because, at that time, “there

is no evidence that Fischbein was informed that Mr. Tucker’s consortium claims did

not refer to damage to sexual relations.”51 After the Tuckers added him to their

complaint, however, it appears that Fischbein should have known that they had not

claimed a loss of sexual relations, and, therefore, Judge Alito found, a reasonable jury

could find by clear and convincing evidence that Fischbein’s second statement that

the Tuckers had made such a claim constituted actual malice. Judge Alito, however,

affirmed the dismissal of the claims against Time and Newsweek because he found

no clear and convincing evidence that they had acted with actual malice.

Judge Nygaard dissented from Judge Alito’s holding as to Fischbein, as Judge

Nygaard read the Tuckers’ amended complaint as “insufficient to indicate a change

in their attitude toward alleging a loss of sexual relations” and therefore he found no

clear and convincing evidence that Fischbein had spoken with actual malice.52

New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964).

Tucker v. Fischbein, 237 F.3d at 284.

Id.

Id. at 292. On remand, Fischbein again won summary judgment, but on different grounds.

(continued...)

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In another defamation case, Remick v. Manfredy, Judge Alito joined an opinion

by Judge Sloviter finding that, in context, the defendant’s statement that the plaintiff

was “attempting to extort money” was not defamatory because it constituted mere

“rhetorical hyperbole.”53 It was, in context, an opinion, and, under Pennsylvania law,

“an opinion cannot be defamatory unless it ‘may reasonably be understood to imply

the existence of undisclosed defamatory facts justifying the opinion.’”54

Commercial Speech. In Pitt News v. Pappert, Judge Alito wrote a

unanimous decision striking down a restriction on commercial speech.55 Section 4498 of the Pennsylvania Statutes Annotated banned advertisers from paying for

alcoholic beverage advertising in communications media affiliated with a university,

college, or other educational institution, and a student newspaper sued. Judge Alito

first noted that it makes no difference that the statute, rather than banning the

newspaper’s speech, merely prevented it from receiving payment for speech.

“Imposing a financial burden on a speaker based on the content of the speaker’s

expression is a content-based restriction and must be analyzed as such.”56

Judge Alito next applied the Central Hudson test to the speech restriction.

Advertising is a form of commercial speech, and commercial speech, though

protected by the First Amendment, is subject to greater governmental regulation than

other speech. The Supreme Court has prescribed the four-prong Central Hudson test

to determine whether a governmental regulation of commercial speech is constitutional. This test asks initially (1) whether the commercial speech at issue is protected

by the First Amendment (that is, whether it concerns a lawful activity and is not misleading) and (2) whether the asserted governmental interest in restricting it is

substantial. “If both inquiries yield positive answers,” then to be constitutional the

restriction must (3) “directly advance[ ] the governmental interest asserted,” and (4)

be “not more extensive than is necessary to serve that interest.”57

Judge Alito noted that the first prong of the test is satisfied, as “the law applied

to ads that concern lawful activity (the lawful sale of alcoholic beverages) and that

are not misleading.”58 He also found the second prong satisfied, as “[t]here can also

be no dispute that the asserted government interest — preventing underage drinking

and alcohol abuse — are, at minimum, ‘substantial.’”59 He found, however, that the

statute founders on the third and fourth prongs. As for the third prong, “the

(...continued)

The Tuckers again appealed, and the appeal is pending.

238 F.3d 248, 262 (3d Cir. 2001).

Id. at 261 (emphasis added by the Third Circuit).

379 F.3d 96 (3d Cir. 2004).

Id. at 106.

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447

U.S. 557, 566 (1980).

379 F.3d at 106.

Id. at 106.

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Commonwealth has not shown that Section 4-498 combats underage or abusive

drinking ‘to a material degree.’ ... Section 4-498 applies only to advertising in a very

narrow sector of the media ... and the Commonwealth has not pointed to any

evidence that eliminating ads in this narrow sector will do any good.”60

As for Central Hudson’s fourth prong, the Supreme Court has held that it is not

to be interpreted to require the legislature to use the “least restrictive means”

available to accomplish its purpose. Instead, the Court held, legislation regulating

commercial speech satisfies the fourth prong if there is a “reasonable ‘fit’ between

the legislature’s ends and the means chosen to accomplish those ends.”61 “Here,”

Judge Alito wrote, “Section 4-498 is both severely over- and under-inclusive.”62 It

was overinclusive because it included students who were over the legal drinking age,

and they were a substantial majority of the students. It was underinclusive

presumably because it applied only to a narrow sector of the media.

Judge Alito added that Pennsylvania “can seek to combat underage and abusive

drinking by other means that are far more direct and that do not affect the First

Amendment,” namely by “enforcement of the alcoholic beverage control laws on

college campuses.”63 He concluded “that Section 4-498 fails the Central Hudson

test,” and then added that it “violates the First Amendment for an additional,

independent reason: it unjustifiably imposes a financial burden on a particular

segment of the media, i.e., media associated with universities and colleges.”64 For

such a financial burden to be justifiable under the First Amendment, it must be

“‘necessary’ to achieve what the [Supreme] Court has described as ‘an overriding

government interest’ and an ‘interest of compelling importance.’”65 But “the

Commonwealth has not shown that Section 4-498 is ‘necessary’ to discourage

underage drinking or abusive drinking.”66

Public Employees’ Speech Rights. In Swartzwelder v. McNeilly, Judge

Alito wrote a unanimous decision upholding a preliminary injunction that prevented

the Pittsburgh Police Bureau from enforcing its order requiring its employees “to

obtain clearance before testifying in court under certain circumstances.”67 In this

case, the Bureau attempted to enforce its order against a police officer who was an

expert in the proper use of force by police officers and who was subpoenaed to testify

as a defense expert in the prosecution of a police officer for first-degree murder in

connection with a shooting in the line of duty. The subpoenaed police officer sued,

Id. at 107.

Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480 (1989).

379 F.3d at 108.

Id.

Id. at 109.

Id. at 111, quoting Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue,

460 U.S. 575, 582, 585 (1983).

Id.

297 F.3d 228, 231 (3d Cir. 2002).

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contending that the order deprived him of his First Amendment right of free speech,

and he sought a preliminary injunction against enforcement of the order pending trial.

The federal district court granted the preliminary injunction after a Magistrate Judge

found that the plaintiff was likely to prevail in the lawsuit, that irreparable harm

would result if the preliminary injunction were not granted, that granting the

preliminary injunction would not cause greater harm to the defendant than denying

it would cause to the plaintiff, and that the preliminary injunction would be in the

public interest.

Judge Alito noted the general principle that, “[w]hile public employees do not

give up all ‘the First Amendment rights they would otherwise enjoy as citizens to

comment on matters of public interest,’ ‘the State has interests as an employer in

regulating the speech of its employees ... .”68 He found that a speech restriction

would be permissible in this case if the government could “show that the interests of

both potential audiences and a vast group of present and future employees in a broad

range of present and future expression are outweighed by that expression’s ‘necessary

impact on the actual operation’ of the Government.”69 As for the free speech

interests in Swartzwelder v. McNeilly, “the regulation of opinion testimony alone

imposes a significant burden on First Amendment interests” of both Bureau

employees and potential audiences. As for the government’s interests, Judge Alito

found that several interests that the government cited, such as “keeping track of the

location of employees who are testifying,” could be served without reviewing and

clearing the substance of their testimony.70 Others, such as “prevent[ing] public

confusion regarding the City’s official policies and practices,” could be served by an

order that applied only to testimony related to an employee’s official duties.71 Judge

Alito therefore concluded that the district court had not abused its discretion in

finding that the plaintiff was likely to prevail in the lawsuit. As for the other

elements that must be shown to be granted a preliminary injunction, Judge Alito

noted that “[t]he loss of First Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury”; that the balance of hardships

weighs in the plaintiff’s favor because a preliminary injunction “leaves the City free

to attempt to draft new regulations”; and that “the public interest is best served by

eliminating the unconstitutional restrictions imposed by” the order.72

Freedom of Association. In In re Asbestos School Litigation, Judge Alito

wrote a 2-to-1 opinion holding that an asbestos manufacturer could not, “consistent

with the First Amendment, be held liable on the plaintiff’s conspiracy and concert of

action claims.”73 The plaintiffs had alleged that Pfizer had “marketed an asbestoscontaining product for an eight-year period without warnings though it had specific

Id. at 235.

Id. at 236, quoting United States v. National Treasury Employees Union, 513 U.S. 454,

468 (1995).

Id. at 238.

Id. at 239-240.

Id. at 241-242 (citing Elrod v. Burns, supra note 45, regarding irreparable injury).

46 F.3d 1284, 1286 (3d Cir. 1994).

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knowledge of the product’s hazard. This conduct was in keeping with the method

of marketing asbestos products by its co-conspirators, as Pfizer well knew, without

any or adequate warnings.”74 Pfizer’s alleged co-conspirators were members of a

trade organization called the Safe Building Alliance (SBA).

Pfizer argued that to hold it liable on the conspiracy claim would penalize its

“exercise of its First Amendment rights to engage in free speech and to associate with

[the SBA].”75 Judge Alito agreed, finding that to hold Pfizer liable would be

“squarely inconsistent with the Supreme Court’s decision in N.A.A.C.P. v. Claiborne

Hardware Co.”76 That case grew out of a boycott by the N.A.A.C.P. of white

merchants in Claiborne County, Mississippi, from 1966 to 1972. A group of the

merchants sued the N.A.A.C.P. and the Mississippi Supreme Court upheld a

judgment in the merchants’ favor “based on civil conspiracy and the common law

tort of malicious interference with the plaintiffs’ businesses.”77 The boycott had

included some acts of violence, but the U.S. Supreme Court reversed, concluding

“that the nonviolent elements of the boycott — giving speeches, banding together for

collective advocacy, nonviolent picketing, personal solicitation of nonparticipants,

and the use of a local black newspaper — were protected by the First Amendment.”78

The Supreme Court wrote in Claiborne Hardware:

Civil liability may not be imposed merely because an individual belonged to a

group, some members of which committed acts of violence. For liability to be

imposed by reason of association alone, it is necessary to establish that the group

itself possessed unlawful goals and that the individual held a specific intent to

further those illegal aims.79

“In the present case,” Judge Alito wrote, “it is abundantly clear that the strict

standard set out in Claiborne Hardware cannot be met,” and he therefore ruled for

Pfizer.80 He added that, although “the factual background of Claiborne Hardware

was very different from this case and that the constitutionally protected conduct in

Claiborne Hardware was of much greater societal importance[,] ... nothing in the

Supreme Court’s opinion ... lends support to the suggestion that the standard it

enunciated was not meant to have general applicability.”81

Dissenting Judge Stapleton argued that “[j]oining together with others does not

render legal conduct that would be illegal if engaged in on one’s own,” and

Claiborne Hardware “expressly recognizes that one may be held liable if one

Id. at 1287.

Id. at 1288.

Id. at 1289, citing N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982).

Id.

Id., quoting 458 U.S. at 920 (emphasis added by Third Circuit).

46 F.3d at 1290.

Id. at 1291.

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supports a group that one knows to have ‘illegal aims.’”82 In this case, he added,

“Pfizer has failed to convince me that its position is in any way different from a

defendant in any antitrust conspiracy case. ...”83

Conclusion

We conclude this report with a note of caution. For various reasons, one should

draw only limited conclusions from the fact that, in each of the cases discussed

above, Judge Alito voted for the party to the litigation who claimed a free speech

right, or for the other party (which was a governmental entity except in the

defamation cases and the freedom of association case).

One reason is that some judicial decisions follow clear Supreme Court

precedents, which a lower-court judge may feel obliged to follow whether he agrees

with them or not, but which he might be inclined to overturn were he on the Supreme

Court.

Another reason is that the fact that a judge favored or disfavored the free speech

side in a particular case may reveal little of his view of the First Amendment, because

the basis of his opinion may not have been his view of the First Amendment. In

Phillips v. Borough of Keyport, for example, Judge Alito joined an opinion to send

the case back to the lower court to hear additional evidence. This ruling favored the

government because the lower court had previously ruled against the government, but

it did not ensure that the government would ultimately win the case. Similarly, in

Terminello v. City of Passaic, the Third Circuit vacated the district court’s decision

because the district court had applied the wrong legal standard in granting an

injunction, not necessarily because the Third Circuit disagreed with the district

court’s result on the merits.

Yet another reason to use caution in attributing particular First Amendment

views to a judge on the basis of particular rulings is that even a ruling for the

government may expand the right of free speech, and a ruling against the government

may narrow it (not that there are necessarily any instances of either of these

occurrences among the cases discussed in this report). A famous example of the

former occurrence is Schenck v. United States, in which Justice Oliver Wendell

Holmes wrote an opinion that affirmed a criminal conviction, yet expanded the First

Amendment so that the government could punish political advocacy only when such

advocacy creates a “clear and present danger.”84

Id. at 1296.

Id.

249 U.S. 47, 52 (1919).

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