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.