Judge Samuel Alito's Opinions in Freedom of Speech Cases
Released: 2005-12-09T00:00:00

Introduction

Judge Samuel Alito, who has been nominated by President Bush to take retiring JusticeSandra Day O'Connor's seat as associate justice of the U.S. Supreme Court, has been a judge on theU.S. Court of Appeals for the Third Circuit since 1990. This report examines his major judicialopinions, both for the majority and in dissent, in freedom of speech cases. (1) It also briefly discusses somecases 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 thatprovides, "Congress shall make no law ... abridging the freedom of speech, or of the press." TheSupreme Court has interpreted this restriction to apply not only to Congress, but to every level ofgovernment -- 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 takenliterally, 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 shoutingfire in a theater. Freedom of speech cases thus involve deciding just what exceptions apply to themandate that there shall be "no law ... abridging the freedom of speech." (2) This report examines JudgeAlito'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 innature." (3) The SupremeCourt has agreed to review the case.

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

"that a prison regulation that impinges on inmates' constitutional rights 'is valid if it is reasonablyrelated to legitimate penological interests.'" (4) The Third Circuit wrote:

The Supreme Court articulated an analytical frameworkwithin 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 legitimategovernmental interest put forward to justify it." Second, the court must determine "whether thereare alternative means of exercising the right that remain open to prison inmates." Third, the courtmust assess "the impact accommodation of the asserted constitutional right will have on guards andother 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 theregulation is an "exaggerated response to prison concerns." (5)

The Third Circuit applied these four factors and found, as to the first factor, that prisonofficials had offered no evidence that the speech restriction had a rational connection to thelegitimate 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 areasonable amount of newspapers, magazines, and photographs" (6) ; and, as to the third and fourthfactors, that alternative policies that were less restrictive of First Amendment rights would have onlya minimal impact on prison resources. These alternative policies were to establish specific readingperiods in which guards deliver a single newspaper or magazine to an inmate's cell and retrieve itat the end of the period, or to escort prisoners "to the secure mini-law library to read a periodical oftheir 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 FirstAmendment restriction would deter inmates who were not in segregated confinement from engagingin misconduct that could send them there, and would deter inmates who were in segregatedconfinement from engaging in misconduct that could keep them there longer. Judge Alito alsoargued that prison officials need not offer evidence that their rule achieves its rehabilitative purposebecause all that Turner v. Safley requires is a " logical connection between the regulation and theasserted goal." (8) As to thesecond factor, Judge Alito argued that inmates could receive information about current events frombooks in the prison library and could receive letters from family members and friends, even if notphotographs. As to the third and fourth factors, Judge Alito found that the alternative policies thatthe majority suggested would impose significant burdens on prisons.

The Supreme Court is likely to decide Banks v. Beard before the end of June 2006, but notbefore the Senate votes on whether to confirm Judge Alito's nomination.

In Waterman v. Farmer , Judge Alito wrote a unanimous opinion upholding a New Jerseystatute that denied access to sexually oriented material to inmates who were imprisoned aspedophiles, child molesters, or rapists. (9) Applying Turner v. Safley 's first prong, Judge Alito found "thatNew Jersey has a legitimate penological interest in rehabilitating its most dangerous and compulsivesex offenders," and "could rationally have seen a connection between pornography and rehabilitativevalues." (10) Applyingthe second prong, Judge Alito found that the statute was not so broad as "to forbid prisoners fromreading the Bible, legal publications, or other non-pornographic books," and therefore left theplaintiffs with alternative means to exercise their constitutional rights. (11) Applying the third andfourth prongs, Judge Alito concluded that the less-restrictive alternative of the prison's reviewingincoming 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 prisonresources.'" (12)

Teachers' Free Speech Rights. In Edwards v.California University of Pennsylvania , Judge Alito wrote a unanimous opinion for the Third Circuitholding "that the First Amendment does not place restrictions on a public university's ability tocontrol its curriculum." (13) The case was brought against the university by a tenuredprofessor who alleged that the university had violated his First Amendment rights by suspending himfor teaching from a nonapproved syllabus in order to advance his religious beliefs. Judge Alitoquoted from a Supreme Court case holding that "when the State is the speaker, it may makecontent-based choices. When the University determines the content of the education it provides, itis the University speaking." (14)

In Sanguigni v. Pittsburgh Board of Public Education , Judge Alito wrote a unanimousopinion for the Third Circuit upholding a public high school's power to remove a teacher from hercoaching positions for publishing certain statements in a faculty newsletter. (15) The teacher's statementshad focused on employee morale, asserting "that some faculty members were 'being put under unduestress,' had experienced 'bad luck,' and had left the building with 'low esteem.'" (16) Judge Alito wrote: "Whileholding that public employees enjoy substantial free speech rights, the Supreme Court hasnevertheless recognized that 'the State has interests as an employer in regulating the speech of itsemployees," and that, [w]ith respect to personnel actions, ... First Amendment rights are implicatedonly when a public employee's speech relates to matters of public concern." (17) In Sanguigni , the teacher'sstatements 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. StateCollege Area School District , the Third Circuit, in an opinion by Judge Alito, found a public schooldistrict's "Anti-Harassment Policy" unconstitutionally overbroad because it prohibited "a substantialamount of speech that would not constitute actionable harassment under either federal or statelaw." (18) Even"[a]ssuming for present purposes that the federal anti-discrimination laws are constitutional in allof their applications to pure speech, we note that the [school district's] Policy's reach is considerablybroader. For one thing, the Policy prohibits harassment based on personal characteristics that arenot 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 theextreme, a catch-all category of 'other personal characteristics' (which, the Policy states, includesthings like 'clothing,' 'appearance,' 'hobbies and values,' and 'social skills'). ... By prohibitingdisparaging speech directed at a person's 'values,' the Policy strikes at the heart of moral and politicaldiscourse -- the lifeblood of constitutional self government (and democratic education) and the coreconcern of the First Amendment. That speech about 'values' may offend is not cause for itsprohibition, 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 theschools." 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 anylegitimate pedagogical concern. Speech falling outside of these categories ... may be regulated onlyif it would substantially disrupt school operations or interfere with the rights of others." (20) Judge Alito found that thePolicy "appears to cover substantially more speech than could be prohibited under" this test. (21) Among the speech itunconstitutionally covered was speech that has the "purpose" of disruption, even when there was noreasonable basis to believe that it would cause substantial disruption; and speech that offends butdoes not interfere with the rights of others. Furthermore, "harassment" as defined by the Policy didnot necessarily rise to the level of substantial disruption.

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 speechin a given setting should be affected -- let alone dictated -- by legislative enactments intended toproscribe 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 thestudents were asked to make posters depicting what they were thankful for on ThanksgivingDay. (23) The plaintiffproduced a poster indicating that he was thankful for Jesus, and his poster was displayed in thehallway of the school, along with those of his classmates. Subsequently, however, Board ofEducation employees removed the poster because of its religious theme, and later the child's teacherreturned the poster to the hallway, but in a less prominent location at the end of the hallway. A freespeech 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 becauseit found that it was "not alleged that the removal occurred as a result of any school policy against theexhibition of religious material," or "that the restoration to 'a less prominent place' was the result ofa school policy or an authoritative directive from [the principal or superintendent]." (24) Judge Alito dissented,writing:

I would hold that discriminatory treatment of the posterbecause of its "religious theme" would violate the First Amendment. Specifically, I would hold thatpublic school students have the right to express religious views in class discussion or in assignedwork, provided that their expression falls within the scope of the discussion or the assignment andprovided 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 expressionwould be constitutional if it satisfied strict scrutiny. What Judge Alito meant by this was that, if theposter "would have 'materially disrupt[ed] classwork or involve[d] substantial disorder or invasionof the rights of other" students, then its discriminatory treatment would be permitted as an exceptionto the First Amendment. Otherwise, to treat the poster differently "because it expressed thanks forJesus, rather than for some secular thing ... was quintessential viewpoint discrimination, and it wasproscribed by the First Amendment. ..." (26) Judge Alito added that for the school to display the poster wouldnot have violated the Establishment Clause because "[t]he Establishment Clause is not violated whenthe government treats religious speech and other speech equally and a reasonable observer wouldnot view the government practice as endorsing religion." (27) Judge Alito would have sent the case back to the lower court todetermine whether the poster had been treated in a discriminatory fashion because of its religiouscontent 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 Alitowrote a unanimous opinion affirming a preliminary injunction issued against a public school districtto require it to allow a religious group "to hand out materials and staff a table at Back-to-Schoolnights." (28) Judge Alitonoted 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., non-profit,non-partisan community groups) for speech on specific topics (i.e., speech related to the students andthe 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 toallow 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 wasnot school-sponsored, because the school district's purpose in allowing the distribution and postingof community group materials was "not to convey its own message" but was "to 'assist allorganizations' in the community." (30) Because the plaintiff's speech was private and notschool-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 apreliminary injunction pending trial.

Zoning of "Adult" Establishments. In Phillipsv. Borough of Keyport , a district court had dismissed a lawsuit before trial, but the Third Circuitruled that it should go forward and sent it back for trial. (31) Judge Alito concurred, but dissented with respect to allowingone of the claims to go forward. The lawsuit was over the denial of an application to open an adultbook and video store at a particular location. The denial was based on an ordinance that prohibitedsuch 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 obscenityor child pornography, neither of which was at issue in Phillips . Speech that is protected by the FirstAmendment may not be regulated on the basis of its content unless the regulation satisfies strictscrutiny. This means, as the court in Phillips wrote, that content-based regulations "will be sustainedonly if they are shown to serve a compelling state interest in a manner which involves the leastpossible burden on expression." (32)

Now, it might appear that a regulation that limits the location of a bookstore because it sellssexually explicit material discriminates against the bookstore on the basis of the content of itsmaterial, and that such a regulation therefore should be subject to strict scrutiny. The SupremeCourt, however, has held that regulations that "are justified without reference to the content of theregulated speech" are to be regarded as content-neutral. (33) The regulation at issue in Phillips was justified allegedly not onthe basis of animus toward sexually explicit material, but "to prevent the deterioration of thecommunity" 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 necessarilyconstitutional. 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 arenarrowly tailored to serve a significant or substantial governmental interest; and ... they leave openample 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 withstrict scrutiny in that a regulation may be narrowly tailored without necessarily imposing the leastpossible burden on expression, and may serve a significant or substantial governmental interestwithout necessarily serving a compelling one.

In Phillips , the district court had concluded "that the Ordinance is an effort to suppress thesecondary effects of sexually explicit expression and not sexually explicit expression itself," and thatit "was narrowly tailored to achieve that objective." (36) The court of appeals, however, concluded "that the district courtwas simply not in a position to make these findings," and therefore sent the case back to the districtcourt to hear evidence on these matters. (37) The court of appeals added that "our First Amendmentjurisprudence requires that the Borough identify the justifying secondary effects with someparticularity," and that "[t]o insist on less is to reduce the First Amendment to a charade in thisarea." (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 secondaryeffects] presented in court when that judgment is challenged," there is no "requirement that such afactual basis have been submitted to the legislative body prior to the enactment of the legislativemeasure." (39) JudgeRosenn, dissenting, observed that "not a single court of appeals has interpreted Renton as requiringabsolutely 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 courtshould also consider the plaintiffs' claim that their right to substantive due process was violated whentheir application was subjected to "denial, delay and revocation" because of defendants' "dislike ofthe proposed adult entertainment expression." (41) Judge Alito dissented because he believed that, even if theplaintiffs' application had been rejected for improper reasons, he was not convinced "that everyill-motivated governmental action that restricts the use of real estate constitutes a violation ofsubstantive due process." (42) He believed, therefore, that the district court had properlydismissed the substantive due process claim. His dissent thus did not turn on a point of FirstAmendment law.

In Terminello v. City of Passaic , Judge Alito joined an unreported decision in a case thatchallenged a requirement that, in order to qualify for an entertainment license, a theater must employan 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 atregulating speech on the basis of its content. The district court had granted the theater a preliminaryinjunction that allowed it to operate pending trial. The City appealed, and the Third Circuit vacatedthe preliminary injunction because the lower court had used the wrong standard in granting theinjunction. It should have used the intermediate scrutiny standard that is applicable to restrictionsthat 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[ ] openample alternative channels for communication."

The Third Circuit found that the district court could not have properly determined whetherthe restriction was narrowly tailored "because there is no evidence in the record establishing the costof 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 thisquestion and then determine whether the requirement was narrowly tailored and whether it shouldreissue 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 "lewd,immoral, or improper entertainment" in a facility holding a liquor license. (44) They requested apreliminary injunction, pending a trial, against the enforcement of the statute. The district courtdenied 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 theplaintiff is reasonably likely to succeed on the merits and (2) that the plaintiff is likely to experienceirreparable harm without the injunction."

Applying this standard, the court of appeals found that the plaintiffs "have made a strong casethat the statute is overbroad," which means that it restricts speech that is protected by the FirstAmendment. But the court did not find it necessary to decide the question, because it held that "theplaintiffs 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 resultin irreparable harm." This was because "the plaintiffs have never been cited for violating the statuteor regulations, and there is no imminent threat of such action."

A dissenting judge found that "[t]he plaintiff dancers have already suffered irreparable harmand will continue to suffer irreparable harm if their motion for a preliminary injunction is notgranted." This was because the dancers' "uncertainty as to what the regulation prohibits and theirfear of being found in violation" caused them "to restrain their performances." The dissent quotedthe Supreme Court as having said that "the loss of First Amendment freedoms, for even minimalperiods of time, unquestionably constitutes irreparable injury." (45)

The district court later decided the case on the merits and found the statute unconstitutionalto the extent that it contained the words "immoral" and "improper" because "[t]here can be no doubtthat the terms 'immoral or improper' are vague," and therefore the statute "does not providereasonably clear notice of what is and what is not prohibited." (46) The court upheld thestatute insofar as it applied to "lewd" conduct, as it found that "lewd" was "sufficiently clear so asnot to constitute unconstitutional vagueness."

Defamation. Tucker v. Fischbein was adefamation case for which Judge Alito wrote the Third Circuit's 2-to-1 opinion. (47) The suit was brought byWilliam Tucker and his wife, C. Delores Tucker, a crusader against "gangsta rap" lyrics, against theestate of rapper Tupac Shakur and several companies connected with the production of an album ofShakur's. The plaintiffs alleged that Shakur on the album had attacked Mrs. Tucker "using 'sexuallyexplicit messages, offensively coarse language and lewd and indecent words' and that she hadreceived death threats because of her activities." (48) The plaintiffs sued for defamation, alleging that the husband hadsuffered a loss of consortium as a result of the lyrics. Loss of consortium means loss by one spouseof the comfort and society of the other, and may, but does not necessarily, include the loss of sexualrelations.

Richard Fischbein, the lawyer representing Shakur's estate, was quoted in the press asexpressing 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 defamedthem 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 havedestroyed Mrs. Tucker's sex life, and the Tuckers amended their complaint again, to add anotherdefamation claim against Fischbein, as well as one against Time , and Newsweek for publishing hiscomment.

Fischbein, Time , and Newsweek moved for summary judgment, and the federal district courtgranted their motions, which means that it dismissed the case without allowing it to go to trial. Itdid so because the Tuckers were "public figures" under defamation law, and could not prove by clearand convincing evidence that the defendants acted with "actual malice," as public figures must doto win a defamation case. To act with "actual malice" means to make a defamatory statement "withknowledge 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 Tuckersargue[d] that Fischbein, as a lawyer, should have known that a claim for loss of consortium may nothave anything to do with damage to sexual relations," so he "was at least reckless when he told thepress that Mrs. Tucker was trying to recover for injury to her sex life." (50) Judge Alito rejected thisargument with respect to the first time that Fischbein made a statement to the press, because, at thattime, "there is no evidence that Fischbein was informed that Mr. Tucker's consortium claims did notrefer to damage to sexual relations." (51) After the Tuckers added him to their complaint, however, itappears 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 thatFischbein'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 hefound 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 readthe Tuckers' amended complaint as "insufficient to indicate a change in their attitude toward alleginga loss of sexual relations" and therefore he found no clear and convincing evidence that Fischbeinhad spoken with actual malice. (52)

In another defamation case, Remick v. Manfredy , Judge Alito joined an opinion by JudgeSloviter finding that, in context, the defendant's statement that the plaintiff was "attempting to extortmoney" was not defamatory because it constituted mere "rhetorical hyperbole." (53) It was, in context, anopinion, and, under Pennsylvania law, "an opinion cannot be defamatory unless it 'may reasonablybe 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 4-498 of thePennsylvania Statutes Annotated banned advertisers from paying for alcoholic beverage advertisingin communications media affiliated with a university, college, or other educational institution, anda student newspaper sued. Judge Alito first noted that it makes no difference that the statute, ratherthan 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 acontent-based restriction and must be analyzed as such." (56)

Judge Alito next applied the Central Hudson test to the speech restriction. Advertising is aform of commercial speech, and commercial speech, though protected by the First Amendment, issubject to greater governmental regulation than other speech. The Supreme Court has prescribed thefour-prong Central Hudson test to determine whether a governmental regulation of commercialspeech is constitutional. This test asks initially (1) whether the commercial speech at issue isprotected by the First Amendment (that is, whether it concerns a lawful activity and is notmisleading) and (2) whether the asserted governmental interest in restricting it is substantial. "If bothinquiries 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 thatinterest." (57)

Judge Alito noted that the first prong of the test is satisfied, as "the law applied to ads thatconcern lawful activity (the lawful sale of alcoholic beverages) and that are not misleading." (58) He also found the secondprong satisfied, as "[t]here can also be no dispute that the asserted government interest -- preventingunderage drinking and alcohol abuse -- are, at minimum, 'substantial.'" (59) He found, however, thatthe statute founders on the third and fourth prongs. As for the third prong, "the Commonwealth hasnot shown that Section 4-498 combats underage or abusive drinking 'to a material degree.' ... Section4-498 applies only to advertising in a very narrow sector of the media ... and the Commonwealth hasnot 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 beinterpreted to require the legislature to use the "least restrictive means" available to accomplish itspurpose. Instead, the Court held, legislation regulating commercial speech satisfies the fourth prongif there is a "reasonable 'fit' between the legislature's ends and the means chosen to accomplish thoseends." (61) "Here," JudgeAlito wrote, "Section 4-498 is both severely over- and under-inclusive." (62) It was overinclusivebecause it included students who were over the legal drinking age, and they were a substantialmajority of the students. It was underinclusive presumably because it applied only to a narrow sectorof the media.

Judge Alito added that Pennsylvania "can seek to combat underage and abusive drinking byother 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 "thatSection 4-498 fails the Central Hudson test," and then added that it "violates the First Amendmentfor an additional, independent reason: it unjustifiably imposes a financial burden on a particularsegment of the media, i.e., media associated with universities and colleges." (64) For such a financialburden 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 compellingimportance.'" (65) But "theCommonwealth has not shown that Section 4-498 is 'necessary' to discourage underage drinking orabusive drinking." (66)

Public Employees' Speech Rights. In Swartzwelder v. McNeilly , Judge Alito wrote a unanimous decision upholding a preliminaryinjunction that prevented the Pittsburgh Police Bureau from enforcing its order requiring itsemployees "to obtain clearance before testifying in court under certain circumstances." (67) In this case, the Bureauattempted to enforce its order against a police officer who was an expert in the proper use of forceby police officers and who was subpoenaed to testify as a defense expert in the prosecution of apolice officer for first-degree murder in connection with a shooting in the line of duty. Thesubpoenaed police officer sued, contending that the order deprived him of his First Amendment rightof 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 theplaintiff was likely to prevail in the lawsuit, that irreparable harm would result if the preliminaryinjunction were not granted, that granting the preliminary injunction would not cause greater harmto the defendant than denying it would cause to the plaintiff, and that the preliminary injunctionwould be in the public interest.

Judge Alito noted the general principle that, "[w]hile public employees do not give up all 'theFirst Amendment rights they would otherwise enjoy as citizens to comment on matters of publicinterest,' 'the State has interests as an employer in regulating the speech of its employees ... ." (68) He found that a speechrestriction would be permissible in this case if the government could "show that the interests of bothpotential audiences and a vast group of present and future employees in a broad range of present andfuture expression are outweighed by that expression's 'necessary impact on the actual operation' ofthe Government." (69) As for the free speech interests in Swartzwelder v. McNeilly , "the regulation of opinion testimonyalone imposes a significant burden on First Amendment interests" of both Bureau employees andpotential audiences. As for the government's interests, Judge Alito found that several interests thatthe government cited, such as "keeping track of the location of employees who are testifying," couldbe 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 servedby an order that applied only to testimony related to an employee's official duties. (71) Judge Alito thereforeconcluded that the district court had not abused its discretion in finding that the plaintiff was likelyto prevail in the lawsuit. As for the other elements that must be shown to be granted a preliminaryinjunction, Judge Alito noted that "[t]he loss of First Amendment freedoms, for even minimalperiods of time, unquestionably constitutes irreparable injury"; that the balance of hardships weighsin the plaintiff's favor because a preliminary injunction "leaves the City free to attempt to draft newregulations"; and that "the public interest is best served by eliminating the unconstitutionalrestrictions imposed by" the order. (72)

Freedom of Association. In In re Asbestos SchoolLitigation , 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 ofaction claims." (73) Theplaintiffs had alleged that Pfizer had "marketed an asbestos-containing product for an eight-yearperiod without warnings though it had specific knowledge of the product's hazard. This conduct wasin keeping with the method of marketing asbestos products by its co-conspirators, as Pfizer wellknew, without any or adequate warnings." (74) Pfizer's alleged co-conspirators were members of a tradeorganization called the Safe Building Alliance (SBA).

Pfizer argued that to hold it liable on the conspiracy claim would penalize its "exercise of itsFirst 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 decisionin 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 whitemerchants in Claiborne County, Mississippi, from 1966 to 1972. A group of the merchants sued theN.A.A.C.P. and the Mississippi Supreme Court upheld a judgment in the merchants' favor "basedon civil conspiracy and the common law tort of malicious interference with the plaintiffs'businesses." (77) Theboycott had included some acts of violence, but the U.S. Supreme Court reversed, concluding "thatthe 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 anindividual belonged to a group, some members of which committed acts of violence. For liabilityto be imposed by reason of association alone, it is necessary to establish that the group itselfpossessed unlawful goals and that the individual held a specific intent to further those illegalaims. (79)

"In the present case," Judge Alito wrote, "it is abundantly clear that the strict standard set outin 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 theconstitutionally protected conduct in Claiborne Hardware was of much greater societalimportance[,] ... nothing in the Supreme Court's opinion ... lends support to the suggestion that thestandard it enunciated was not meant to have general applicability." (81)

Dissenting Judge Stapleton argued that "[j]oining together with others does not render legalconduct that would be illegal if engaged in on one's own," and Claiborne Hardware "expresslyrecognizes that one may be held liable if one supports a group that one knows to have 'illegalaims.'" (82) In this case,he added, "Pfizer has failed to convince me that its position is in any way different from a defendantin any antitrust conspiracy case. ..." (83)

Conclusion

We conclude this report with a note of caution. For various reasons, one should draw onlylimited conclusions from the fact that, in each of the cases discussed above, Judge Alito voted forthe party to the litigation who claimed a free speech right, or for the other party (which was agovernmental 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 alower-court judge may feel obliged to follow whether he agrees with them or not, but which he mightbe 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 aparticular case may reveal little of his view of the First Amendment, because the basis of his opinionmay not have been his view of the First Amendment. In Phillips v. Borough of Keyport , forexample, Judge Alito joined an opinion to send the case back to the lower court to hear additionalevidence. This ruling favored the government because the lower court had previously ruled againstthe 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 thedistrict court had applied the wrong legal standard in granting an injunction, not necessarily becausethe 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 judgeon the basis of particular rulings is that even a ruling for the government may expand the right of freespeech, and a ruling against the government may narrow it (not that there are necessarily anyinstances of either of these occurrences among the cases discussed in this report). A famous exampleof the former occurrence is Schenck v. United States , in which Justice Oliver Wendell Holmes wrotean opinion that affirmed a criminal conviction, yet expanded the First Amendment so that thegovernment could punish political advocacy only when such advocacy creates a "clear and presentdanger." (84)