Alito on the First Amendment: excerpts from hearings

Thursday, January 12, 2006

Editor’s note: The following excerpts from Judge Samuel Alito’s
confirmation hearings before the Senate Judiciary Committee were transcribed by
The Washington Post.

Religious liberties, free exercise
Let me go to a specific area you have written quite a bit about, and that’s on
religious liberties and free exercise.

And I’ve looked at these cases. And this is going to be an active area of law
in front of the Supreme Court. It has been for the last 40 years.

You wrote the case of ACLU v.
3rd Circuit case considered ACLU challenge to religious
displays erected by Jersey City on the plaza of city hall. Jersey City, for
decades, it had holiday displays of menorah and Christmas tree. Litigation
resulted in permanent pulling of this. The city came back, said, “OK, if that’s
not good enough, we’ll put a nativity scene, a menorah, Christmas tree, Frosty
the Snowman, Santa Claus, Kwanzaa symbols and signs explaining the display. So,
OK, if two is not enough, we’ll add more into that.”

And they were again challenged by the ACLU. District court found no
constitutional violation.

Panel 3rd Circuit, not including you, reversed that decision. Panel found no
basis for the demystification approach, as they put it, and expressed skepticism
as to constitutional display.

On remand, district court held that there was a constitutional violation. The
city appealed. You sat on the panel that heard that appeal. In a 2-1 decision,
you upheld the constitutionality of the modified display.

In your decision, you specifically cited Justice O’Connor and two particular
issues regarding excessive entanglement with religious institutions and
government endorsement or disapproval of religion.

Because Justice O’Connor used these factors to uphold similar displays in
prior cases, you applied them to your upholding that case. That’s a correct
interpretation; is that correct?

ALITO: Yes, it is, Senator.

BROWNBACK: Because these are coming up so much in front of the court, are
these types of displays, you feel — generally — constitutionally

ALITO: Well, this is an area in which the Supreme Court has handed down
several decisions. And like a number of the issues that the Court has addressed
under the establishment clause, it has drawn some fairly fine lines.

The first case involving a display of this nature was the Pawtucket, R.I.,
display that was involved in Lynch
v. Donnelly.
And it was a display that was similar to the display in
Jersey City. It included both religious and secular symbols. And they found that
that was not a violation.

BROWNBACK: I want to jump in here, because I’ve several areas I want to go
at. When I read your opinions, what I hear you to write is you would rather have
a robust public square than a naked public square; that you think there is room
for these sorts of displays in the public square.

ALITO: Well, that was exactly what Jersey City had decided in that case. And
Jersey City said: We are one of the most religiously diverse, ethnically
diverse, racially diverse communities you will find anywhere in the country.
This is right across the New York harbor from the Statue of Liberty and from
Ellis Island, and it’s still an entry point for a lot of people coming into the

And so they have — over the course of the year at the appropriate time they
had a Christmas display, they had a display of a menorah. On that particular
year, Hanukkah was early in the month of December, so the menorah was up at a
different point. They had celebrations for Muslim festivals, for Hindu
festivals, for Buddhist festivals, for Latino festivals, for festivals
concerning the many ethnic groups in the community.

And their view was that this is the way we should show that all of these
groups are valuable parts of our community and express our embracing of them.
And this display, they said, reflected that philosophy and, applying the
precedents that the Supreme Court had provided in this area, the Pawtucket

And in a later case involving a display in Pittsburgh, Judge Rendell and I,
who were the judges in the majority on that case, said this is constitutional;
this is consistent with the establishment clause.

BROWNBACK: And that’s what — as we’ve had this 40 years of cases, I really
hope we can have a public square that celebrates and not that’s got to be
completely naked to those views. And I appreciate that.

You wrote in a free-exercise case, C.H. v. [Oliva].
You heard a case in which a child sued through his parents for violation of his
free-speech and free-exercise rights when his school removed and repositioned a
poster he had made of a religious figure that was important to him. It was a
picture of Jesus. The poster was part of an assignment where students were
instructed to show something for which they were thankful.

The district court granted judgment in the pleadings in favor of the
defendant, the school district. The 3rd Circuit affirmed.

You dissented in that opinion. Can you elaborate on your reasoning in that
particular opinion? Do you remember the case?

ALITO: Yes, Senator, I do.

Justice O’Connor pointed out something that’s very critical in this area. She
said there is a big difference between government speech endorsing religion and
private religious speech. And private religious speech can’t be discriminated
against. It has to be treated equally with secular speech.

And in this case, this involved a student who — and there were two incidents.
One involved reading. The students in the class were told that if they could
read at a certain level, their reward would be to be able to read their favorite
story to the class.

And this student satisfied those requirements. And the student wanted to read
a very simplified version of the story of Jacob and Esau to the class. And the
teacher said, “No, you can’t read that to the class. You can read that privately
to me off in a corner.”

And then Thanksgiving was coming along, and the students were told, “Draw a
picture of something that you are thankful for.”

And I guess the teacher expected they were going to draw pictures of football
games and turkeys and things like that, but this student drew a picture of Jesus
and said, “That’s what I am thankful for.”

And the teacher put all the other pictures up in the hall, but would not put
this student’s picture up in the hall because of its religious content.

And that, we found, was a violation of this principle that you have to treat
religious speech equally with secular speech.

If you ask a student to say something about a topic — “What are you thankful
for?” — and the student and the student says something that fits within the
topic that the student was asked to talk about, then you can’t discriminate
against one kind of speech or another.

Establishment clause
SEN. RICHARD DURBIN (D-Ill.): You’ve heard
some questions about religion in our diverse society under the Constitution.
You’ve heard some questions from the other side about it, from Senator
Brownback, Senator Cornyn and others. And I would like to try to get into this a
little bit.

There seems to be a debate within the Court between two standards for judging
conduct as to whether it’s constitutional in relation to freedom of exercise of
religion, as well as establishment. And the two theories, if I can describe them
quickly, are the Lemon theory, which has three tests, that the Burger
Court came out with in 1971, and the new coercion theory.

Are you familiar with both of those theories?

ALITO: I am. And there’s actually a third theory, the endorsement test.

DURBIN: Where do you come down? So you subscribe to any one of those as an
accurate analysis of what the founding fathers meant under the establishment

ALITO: I don’t think the Court has settled on any single theory that it
applies in every case. There are cases in which it finds the Lemon
theory, the Lemon
which now has [three] parts, whether the statute has — whether
whatever is at issue has a secular purpose and whether the primary effect is to
advance or inhibit religion [and whether it promotes “an excessive entanglement
with religion”]. There are instances in which it applies that. It tends to apply
that in cases involving funding.

There is the endorsement test, and it applies that in certain cases.
Typically, it applies those in cases involving things like the displaying of
symbols that have religious significance.

So it itself has not found a single test that it applies in all of these

DURBIN: Well, where are you? If the Court is divided, and it appears it is,
where do you come down? Please tell me.

ALITO: Well, I do not myself have a grand, unified theory of the
establishment clause. As a lower court judge, of course, my job has been to
apply those precedents. And this is an area in which I think the Court has been
— you can just see by the number of cases that it has decided, it has been
attempting to find the best way of expressing its view of what the establishment
clause requires.

I certainly agree that it embodies a very important principle and one that
has been instrumental in allowing us to live together successfully as probably
the most religiously diverse country in the world and maybe in the history of
the world. It’s a very important principle. But I, myself, do not have a grand
unified theory of this.

DURBIN: Let me ask you a few starting points: The question was asked of John
Roberts about his personal, religious and moral belief. And I would ask you, in
the most open-ended fashion.

We all come to our roles in life with life experience and with values. When
you are calculating and making a decision, if you were on the Supreme Court,
tell me what you are personal, religious, or moral beliefs — what role that will
play in that decision process.

ALITO: Well, my personal religious beliefs are important to me in my private
life. They are an important part of the way I was raised and they have been
important to Martha and me in raising our children.

But my obligation as a judge is to interpret and apply the Constitution and
the laws of the United States and not my personal religious beliefs or any
special moral beliefs that I have.

And there is nothing about my religious beliefs that interferes with my doing
that. I have a particular role to play as a judge. That does not involve
imposing any religious views that I have or moral views that I have on the rest
of the country.

[DURBIN:] That is virtually the same answer given by Justice Roberts. And I
think, from my point of view, that is the right answer. It’s the same challenge
many of us face on this side of the table with decisions that we face.

Now, I asked Judge Roberts the following: Does the free-exercise clause, in
addition to the establishment clause — does it protect the right of a person to
be respected in America if they have no religious beliefs — the

ALITO: Yes, it does. It is freedom to worship or not worship as you choose.
And compelling somebody to worship would be a clear violation of the religious —
the religion clauses of the First Amendment.

DURBIN: Let me go to a specific case: Black Horse Pike Board of Education
case (ACLU of New
Jersey v. Black Horse Pike Regional Board of Education,
1995), which you
were involved in. And it’s an interesting case. And I hope this fact pattern I
described to you is correct.

The school board policy allowed the seniors at this school to vote on having
a graduation prayer. And the decision was suggested whether that was coercing
students who didn’t agree with that religious prayer or had no religious

What is your feeling or what was your feeling at that time when it came to
that decision?

ALITO: Well, that was a case that followed Lee
v. Weisman
(1992) and preceded the Santa Fe case (Santa
Fe Ind. School District v. Doe,
2000), which dealt with a prayer before
a football game. Lee v. Weisman involved a situation in which the
principal — and that was the most directly relevant and a rather recent
precedent at the time of the Black Horse Pike case.

In Lee v. Weisman, the principal of a middle school, as I recall,
decided that there would be an invocation at the middle school graduation and
selected a member of the clergy, a local rabbi, to deliver the prayer and
specified the nature of the prayer that would be appropriate for the
circumstances. The Supreme Court held that that was a violation of the
establishment clause.

The case that we considered in the Black Horse Pike case involved a
situation in which the high school left it up to the students through an
election to decide whether there would be a prayer at the high school graduation
and left it up to them to select the person who would conduct the prayer, the
student who would lead them in the prayer, if they decided by a vote to do

So our job at that point was to decide whether this fell on one side or the
other of a line that I referred to earlier which Justice O’Connor very helpfully
— the distinction that she drew between government religious speech, which is
not allowed, and private religious speech, which is protected. The government
itself cannot speak on religious matters, but the government also can’t
discriminate against private religious speech. And what you have here …

DURBIN: This is with respect to the [Oliva] case, where the student
comes up with the drawing of Jesus, and that is a voluntary, personal and
private expression, as you have described it.

ALITO: That’s correct. And the Supreme Court has recognized this in a number
of cases. In the Rosenberger case (Rosenberger
v. Rector & Visitors of the University of Virginia,
1995) and the
Good News Club case (Good
News Club v. Milford Central School,
2001) and the Lamb’s Chapel
case (Lamb’s
Chapel v. Center Moriches School District,
1993), they’ve drawn this

So here we had a situation involving an election by the students to pick
somebody to lead them in prayer, and which side of the line did it fall on?
Well, it wasn’t individual student speech, but it was collective student speech
by way of an election. And that was what we had to decide, which side of the
line it fell on. Judge Mansmann, who wrote the opinion that I joined in that
case, explained why we thought it fell on the side of the line of individual
student speech.

DURBIN: Let me ask you about that; let me explore it for a second. You are
dealing with a school board policy. A school board is a government agency.
They’ve set up the policy, so it is not coming entirely from a voluntary
personal situation like the [Oliva] case. And you know that the majority is
going to rule in the decision on whether there will be a prayer and what the
substance of the prayer will be.

How, then, could you respect the rights of the minority, including people
with different religious beliefs and nonbelievers, if you leave it up to a
majority vote?

ALITO: Well, that factor is why it was a case that didn’t — there could be a
debate about which side of this line it fell on. Now, I think there also was a
disclaimer that was distributed at the time of the graduation explaining to
anybody who was in attendance that the prayer was not endorsed — if there was a
prayer, it wasn’t endorsed by the school board and that this was a decision of
the students.

There are factors there that fall on one side of the line. There are factors
there that point to the case being put on one side of that line, factors that
point to putting the case on the other side of the line.

And Judge Mansmann’s opinion explained why she thought — and I agree that it
would fall on the private student speech side of the line. But it was a question
that was debatable.

And then the Santa Fe case came along later. It didn’t involve exactly
the same situation, but it involved the related situation — and that is now the
Supreme Court’s expression of its opinion in the form of a precedent on the
application of this test that I’ve been talking about, a situation like

DURBIN: Let me ask you, as you’ve described it, this is not an easy call. I
mean, there are circumstances on both sides. And yet, in your dissent, you used
the phrase — referring to the majority — as “hostility toward religion.”

It seems to me that you could make a case that I’m not hostile toward
religion but trying to be sensitive to the rights of all to believe or not to
believe in America and come down on the opposite side of the case.

Were you overstating your position in using that phrase, “hostility toward
religion,” in describing the majority?

ALITO: It was Judge Mansmann’s opinion, which I joined. And I don’t remember
the phrase “hostility to religion.” Obviously, it must be in there.

I certainly don’t think that she meant to suggest that those who were
objecting to this were proceeding in bad faith or even that they were hostile to

I think what she — I can’t speak for her and I don’t recall the specific
language, but looking at it now, the way I would put it was that she probably
thought that this was not giving as much room for private religious speech as
should be given.

DURBIN: Interesting that when you — I couldn’t tell you what in the heck I
ever wrote in law school about anything.

But in your second year in law school you wrote a paper, I take it, some
research paper which you had to tell us about here relative to the issue of
religion and then, in the ‘85 memo, raised the question about the Warren Court
on the establishment clause.

What was it that the Warren Court decided on the establishment clause that
troubled you, if you remember?

ALITO: Well, I actually think that the student note from the Yale Law
is an illustration of the sort of thing that has interested me and
troubled me about the jurisprudence in this area for a long time.

In the law school note, I talked about two of what are called the released-time
cases. It was the McCollum case (McCollum
v. Board of Education,
1948) …

DURBIN: Versus …

ALITO: … versus Clauson (Zorach
v. Clauson,
1952), both of which were decided just before Chief Justice
Warren took his seat. And they involved situations that were quite similar.

There was a distinction between the two programs, but they were quite similar
and the Court reached contrary conclusions. And unfortunately, this has been a
recurring pattern in the establishment-clause jurisprudence, cases that turn on
extremely fine distinctions.

The Supreme Court held in Board
of Education v. Allen,
if I’m remembering the correct case at the end of
the Warren Court, that it was permissible for a school board to supply secular
books to schools that are related to a religious — that are religiously
oriented. And then later in another case, I think it was Wolman (Wolman
v. Walter,
1977), they said but you can’t — but that doesn’t apply to
other instructional material, other secular instructional material.

And this has been the thing about the establishment clause that has bothered
me: the absence of just what your initial question was pointing to, some sort of
theory that draws distinctions that don’t turn on these very fine lines.

DURBIN: Tell me about the establishment clause in a more contemporary
context, if you can. You talked about the case in the Warren Court and providing
secular books to religious schools, which I find no problem with. I think that’s
acceptable from my point of view, whatever that’s worth.

But what about the concept and theory of financial support from a government
agency to a school that is a religious school, where the money is used for the
purpose of teaching religion or proselytizing?

ALITO: Well, I think the Court’s precedents have been very clear on that,
that a government body cannot supply money to a school for the purpose of
conducting religious education. And I don’t recall a suggestion in dissenting
opinions — maybe there is one that I’m not recalling here — that says that that
would be permissible.

DURBIN: I’m running out of time, but it would go back to my first question. I
think under the coercion test, there is some argument among some on the Court
and others that, not applying Lemon, but using this new coercion test may give
them more leeway when it comes to this kind of financial support and vouchers.
But I don’t want to presume that.

Cameras in court
SEN. ARLEN SPECTER (R-Pa.): Judge Alito, I want to
move now to a subject on efforts to have television in the Supreme Court of the
United States, a subject very near and dear to my heart.

I’ve been pushing it for a long time. I’m personally convinced that it’s
going to come some day. I’m not sure whether it’ll come during my tenure in the
Senate. More likely it’d come during the tenure of Chief Justice Roberts in the
Supreme Court, or your tenure, if confirmed.

The Supreme Court said in the Richmond newspaper case vs. Virginia (Richmond
Newspapers Inc. v. Virginia,
1980), quote, “The rights of a public trial
belong not just to the accused, but to the public and the press, as well. Such
openness has long been recognized as an indispensable attribute in the
Anglo-Saxon trial.”

There are many other lines of authority, but only a few moments left to set
the stage here. But the Supreme Court has the final word.

We can talk about the president’s war power under Article II and the
congressional authority under the Foreign Intelligence Surveillance Act, but the
Court makes the decision.

We can talk about taking away habeas corpus jurisdiction, but the Court
decides whether we can do it or not.

We can talk about the insult of declaring acts of Congress unconstitutional
because of our method of reasoning, but the Court can do that.

And the Court has made these decisions on all of the important subjects. The
Court decided who would be president of the United States in Bush v.
The Court decides who lives on a woman’s right to choose, who dies on
the right to die, on the death penalty, on every critical decision.

The Congress has the authority to do many things on the administrative level,
such as we set the starting date for the Court, the first Monday in October. We
set what is a quorum of the Court, six members. Congress sets the size of the
Court, effort made by President Roosevelt to increase the number from nine to
15. We put provisions in on speedy trial, time limits on habeas corpus

In recent times, some of those who have objected to televising the Court
[have] been on television quite a bit themselves. When Justice Scalia and
Justice Breyer come on TV, it’s a pretty good show, not much surfing when that
happens, like surfing when my turn comes to question.

But this proceeding on confirmation of Supreme Court justices has attracted a
lot of attention. As I said to you yesterday, I’m tired of picking up the front
page everywhere and seeing your picture on it.

Brit Hume was on Fox News talking about going to a Redskins game in 1991 when
Justice Thomas was being confirmed and how he had his ear sets on to listen to
the proceedings.

I think Senator Leahy was questioning Professor Hill at that particular

But how about it? Why shouldn’t the Supreme Court be open to the public with

ALITO: Well, I had the opportunity to deal with this issue, actually, in
relation to my own court a number of years ago. All the courts of appeals were
given the authority to allow their oral arguments to be televised if they

And we had a debate within our court about whether we should allow television
cameras in our court room. And I argued that we should do it. I thought that it
would be a useful …

SPECTER: Really? You have taken a position on this issue?

ALITO: Well, I did, and this is one of the matters on which I ended up in
dissent in my court.


The majority was fearful that our Nielsen numbers would be in the


SPECTER: Could you promise the same result?


Could you promise the same result, if confirmed, to be a dissenter? Will the
Court allow TV?

SEN. CHUCH GRASSLEY (R-Iowa) (?): Be careful how you answer.

SPECTER: Be careful how you answer everything, as you have been.


ALITO: The issue is a little bit different on the Supreme Court. And it would
be presumptuous for me to talk about it right now, particularly since, I think,
at least one of the justices has said that a television camera would make its
way into the Supreme Court room over his dead body.

So I wouldn’t want to comment on it …

SPECTER: Justice Souter. But quite a few of his colleagues have been on
television. Let me ask you this, Judge Alito — I know what the answer will be —
with seven seconds left, will you keep an open mind?

ALITO: I will keep an open mind, despite the position I took on the 3rd


Online pornography
SEN. MIKE DEWINE (R-Ohio): Judge Alito, let me
ask you about Congress’ power to protect our children from the proliferation of
pornography on the Internet. This is an important issue. I raised it at the last
hearing. It’s one that I think is very troubling.

Congress has tried several times to protect our children from being exposed
to pornography on the Internet. In 1996, we passed the Communications Decency
Act, but the Supreme Court struck it down, citing the First Amendment (Reno
v. ACLU,
1997). A few years later, we passed the Child Online Protection
Act. Again, the Court struck it down (Ashcroft
v. ACLU,
2002, and Ashcroft

What bothers me about these cases is they fail to account for something that
to me seems relatively simple: The core of the First Amendment is the protection
of political speech, but it seems to me that pornography is altogether
different. Unlike political speech, pornography has little value, if it has any
value at all.

It doesn’t communicate a message, other than one that degrades women. It does
not contribute to the public debate. And it actually causes harm to the victims
who take part in making it and those who use it.

There are, of course, a number of cases that seem to recognize that
pornography is of lesser-value speech. In Young
v. American Mini Theatres,
the Court upheld zoning regulations on adult

In doing so, Justice Stevens had this to say, and I quote, “Even though we
recognize that the First Amendment will not tolerate the total suppression of
erotic materials that have some arguably artistic value, it is manifest that
society’s interest in protecting this type of expression is of a wholly
different and lesser magnitude than the interest in untrammeled political

Let me ask you, Judge, what is your thinking on the subject? Is pornography
lesser-value speech as Justice Stevens has seemed to suggest? And are there or
should there be different levels of speech under the First Amendment?

ALITO: I think that the problem of protecting children from pornography on
the Internet illustrates the fact that, although the task of the judiciary is to
apply principles that are in the Constitution and not make up its own
principles, to apply those to different factual situations, when the world
changes and, in particular, when, in the First Amendment context when means of
communication changes, the job of applying the principles that have been worked
out — and I think in this area, worked out with a great deal of effort over a
period of time in the pre-Internet world — applying those to the world of the
Internet is a really difficult problem.

And I understand that Congress has been struggling with it. And I know the
judiciary has been struggling with it.

The law, of course, as you know, constitutional law draws a distinction
between obscenity, which has no First Amendment protection but is subject to a
very strict definition, and pornography, which is not obscenity but is sexually
related materials. With respect to minors, the Supreme Court has said it’s
permissible for a state to regulate the sale of pornography to minors.

It has greater authority there. I think that’s the Ginsberg case (Ginsberg
v. New York,
1968). It has great authority there than it does with
respect to the distribution of pornography to adults.

Now, in the pre-Internet world, the job of preventing minors from purchasing
pornography was a lot simpler. If they wanted to get it, I guess they would have
to go to a store or some place and buy it.

But on the Internet, of course, it’s readily available from any computer
terminal. And a lot of minors today are a lot more sophisticated in the use of
computers than their parents. So the ability of parents to monitor what they’re
doing and supervise what they’re doing is greatly impaired by this difference in
computer aptitude.

And I can’t say much more about the question than that. It is a difficult
question. I think that there needs to be additional effort in this area,
probably by all branches of government, so that the law fully takes into account
the differences regarding communication over the Internet and access to
materials over the Internet by minors.

Free speech in the public square
DEWINE: Judge, let me turn to an
area that I talked with Judge Roberts about, and that is free speech in the
public square.

To me, there’s perhaps no right in our Constitution that is really as
important as the freedom of speech.

The heart of the First Amendment is the idea that people have a right to
speak their mind but also be heard on matters of public concern.

Traditionally, our citizens have expressed their opinion on public issues by
turning to the public square. They do it in parks, in streets, in sidewalks,
anywhere that people gather. It’s as old as the country and older than our

Lately, however, I believe that we’re seeing a disturbing trend.

Many cases governments have sought to restrict speech in the public arena;
sometimes with success, sometimes without.

Let me give you some examples. One recent case, a Wisconsin woman was kicked
off a city bus when she tried to distribute a book containing Bible stories to
individuals sitting next to her.

In many towns and cities across the country, individuals are prohibited from
placing political signs on their own property. They’re told what size they can
put out. They’re told the times they can put it out, the dates they can put it
out, et cetera.

In many public places, individuals have been forced to hold up signs or
protest and been confined to free-speech zones, far away from the event that
they wish to protest. These individuals doing nothing more many times than just
standing there with a sign.

These sorts of restrictions concern me because they limit the ability of
individuals not only to speak but also to be heard in public places, people who
want to talk about politics, religion or any other matter of public concern.

I think we need to be careful as a society before we limit what people can
say and where they can say it.

Let me ask you: How do you approach challenges to government restrictions on
the ability of individuals to speak and be heard in public places?

And what, Judge, factors do you consider when deciding which restrictions on
speech in the public square are proper under the First Amendment and which ones
are not?

ALITO: I think that freedom of speech and freedom of the press and all the
freedoms set out in the First Amendment are matters of the utmost

Freedom of speech is not only important for it’s own sake, but it is vital to
the preservation of our form of government. And I think that if anybody reviews
the opinions that I’ve written in the area of freedom of expression and other
First Amendment …

DEWINE: I’ve looked at some of them, at least.

ALITO: … they will see that I strongly support those rights.

The issue of speech in particular places is a daunting issue, where the
Supreme Court has addressed it by developing the forum doctrine and they have
identified what they call public
which would be something like a public street, where people’s ability
to speak is at the maximum.

At the other extreme, there’s a private forum. My chambers would be a private
forum; a senator’s office would be a private forum. Someone would not have a
right to come in from the street and speak in a place like that.

And then there are what they call limits of public forums, or dedicated
public forums or fora, places where people can speak freely, but only at
particular times on particular subjects, a place that’s [dedicated] to free
speech, but only on a particular subject, for example.

That’s the way they analyze it.

Now, some people would say that there are developments in society that have
resulted in the shrinking of public fora that make it more difficult for people
to express themselves. I know that I’m not up to date on New Jersey case law
under the New Jersey Constitution, but it’s my belief that our state has read
this — has a different forum doctrine in things like shopping centers — malls
that are privately owned are considered to be public fora under a New Jersey
state law. I think some other states view it that way and that’s a competing way
of looking at this problem.

An important principle — where I have dealt with this in my cases, as I can
recall — is the issue of freedom of speech in a limited public forum. And even
in a limited public forum, what government cannot do is engage in viewpoint

If the government opens up a particular forum for discussion of a particular
subject, you can’t say, “But we’re only going to allow people who express this
viewpoint and not another viewpoint.”

Viewpoint discrimination really goes to the heart of what the First Amendment
is intended to prohibit, so that even in a limited public forum, where people
are restricted with respect to what subject that they can talk about, government
can’t impose a viewpoint discrimination.

DEWINE: Well, it just seems to me, Judge, that we could talk about this issue
all day, and we’re not going to, obviously, but that there is a shrinking public
forum, and the opportunities many times are going away.

I guess you could make the other argument that because of modern technology,
there are other opportunities, with the Internet, et cetera, that they are
opening up for people to communicate and to make their point well known.

But a lot of the places that people historically have talked and made their
point well known are shrinking. You talked about the malls, which certainly in
most states are totally off limits to any kind of display of that kind of

Commercial speech
DEWINE: Let me turn to commercial speech, if I
could. Under current law, commercial speech is protected by the First Amendment,
but it has never had the same level of protection as other forms of speech, such
as political speech. The difference in treatment has puzzled a number of
commentators and judges.

In reviewing your cases, I noticed that you are certainly familiar with the
issue of commercial speech. In Pitt News case (The Pitt News v.
2004), for instance, you struck down a Pennsylvania statute
that barred paid alcohol advertisements in newspapers affiliated with colleges
and universities.

Let me ask you, Judge, based on your experience with this and other cases,
what is your view about the distinction between commercial speech and
noncommercial speech, and is there a common-sense difference between these two
types of speeches? And have you found that case law supports any distinction?
And how, if confirmed, will you approach the so-called commercial-speech claims
under the First Amendment?

ALITO: Well, there’s a debate about how much protection commercial speech
should have.

There are those who argue that the distinction between commercial speech and
noncommercial speech should be eliminated. The Supreme Court views commercial
speech differently. And while it is strict about any limitation regarding
accurate information about prices it limits, it permits greater restriction of
commercial speech under current case law than it does with respect to other
types of speech.

And the theory, as I understand it, is that commercial speech is more
durable. At least that’s part of the theory. In other words, there’s such a
great incentive for people who are selling things to engage in advertising and
other forms of commercial speech that it’s less likely to be driven out than
speech on other issues where the financing may not be as extensive.

In the Pitt News case, what I had to apply was the question of whether
there was sufficient tailoring.

There was a compelling interest for what was done there, which was to
restrict advertising about alcohol in a publication that was affiliated with an
educational institution. But based on the facts there, it just did not seem to
be tailored at all.

This was a newspaper that, I think, 75% of the people who received it in its
connection with the University of Pittsburgh, were people over the drinking

And maybe even more to the point, this publication was distributed free on
campus and in newspaper boxes next to a number of others that contained
commercial publications.

And they both advertised establishments and events in the area of the
university. And the others were full of information about alcoholic beverages
and those were free too.

So while the problem of underage drinking and abusive drinking on college
campuses is a very serious issue, and the Pennsylvania legislature recognized
that and we certainly didn’t question that — it is an issue of critical
importance — it seemed quite unrealistic to think that this regulation, which
only applied to The Pitt News and not to these other publications, was
tailored sufficiently.

Free speech in public schools
SEN. RUSSELL FEINGOLD (D-Wis.): (In) 2001, you wrote an opinion overturning a public school district’s anti-harassment policy that protected, among other people, lesbian and gay students. You said the school policy in the case, Saxe v. State College Area School District, violated the First Amendment.

The case was brought by students who believed that the policy interfered with their ability to speak out against the, quote, “sinful,” unquote, nature and harmful effects of homosexuality, as compelled by their religion.

In your Senate questionnaire, you note that you won the Family Research Council Golden Gavel Award in 2001 for your decision striking down that policy. The Family Research Council is a leading conservative group that opposes gay rights.

In order for a policy protecting gay students from harassment to pass constitutional scrutiny, must it have an exception for harassment motivated by religious belief?

ALITO: Let me say what was at issue in the Saxe case, because that is the context in which I dealt with issues like this.

The Saxe case involved a very broad anti-harassment policy that had been adopted by a school district. It not only prohibited the expression of political viewpoints, but it went so far as to say that just about anything that any student would say about another student that would be offensive to that student, including comments on the way the student dressed or the things that they liked to do, would be a violation of the anti-harassment policy.

And under the First Amendment, unlike in most other areas of the law, statutes can be challenged on overbreadth grounds. And that was the ground on which the statute was struck down in the Saxe case, that it was overly broad, that it prohibited a great deal of speech that was constitutionally protected.

The Supreme Court decided back in the Tinker case (Tinker v. Des Moines Independent Community School Dist., 1969) that students don’t lose all of their First Amendment rights to freedom of expression when they enter the school grounds.

And Justice Brennan’s opinion in that case set out the test that is to be applied there. The schools have greater ability to regulate student’s speech than government has to regulate adult speech in general. But the authority of school officials to regulate the political speech by students — in Tinker it was the wearing of an arm band to protest the war in Vietnam — is not unlimited and there has to be a threat of disturbance on the school grounds or a violation of the constitutional rights of another student.

And so, any policy that regulated student expression, political expression in a school, would have to satisfy Justice Brennan’s Tinker standard.

Congress vs. Supreme Court on First Amendment
SEN. PATRICK LEAHY (D-Vt.): One of the advantages or disadvantages of being here for a long time — I’ve actually been here for the hearings on every member of the Supreme Court, including that of former Chief Justice Rehnquist. And Senator Specter and I have served here together a long time. And I went back to one of his questions. He asked then-Justice Rehnquist whether Congress can strip the Supreme Court of jurisdiction over First Amendment cases involving freedom of speech, press or religion. … [H]e kept pushing then-Justice Rehnquist until he finally got an answer. In the end, then-Justice Rehnquist gave his view. He said that Congress could not remove the Court’s jurisdiction over First Amendment cases.

So let me ask the same question that Senator Specter asked in 1986: Does Congress have the authority to say the Supreme Court does not have jurisdiction over First Amendment issues of freedom of speech, press and religion?

ALITO: Well, I would give the same answer to that that I gave to the more general question you asked a few minutes ago about taking away the Supreme Court’s appellate jurisdiction over a topic of cases. It’s not a question that I have — obviously have had to deal with in my capacity as a judge or something that I’ve written about or studied in any sort of a focused way.

My understanding of the writing on the question is that there’s a division of thought among leading constitutional scholars on the issue. And there are some who argue that Congress has plenary authority to define the appellate jurisdiction over the Supreme Court and there (are) others who argue that if Congress takes away the authority of the Supreme Court to hear a particular type of case, that there could be a violation of another constitutional provision. And, in that instance, it would be the First Amendment.

And as a matter of constitutional law, I don’t feel I can go further than that.

LEAHY: But, judge, this is somewhat similar to the initial answers given by then-Justice Rehnquist. But he ultimately came down and said in that hearing that Congress could not remove the Court’s jurisdiction over First Amendment cases.

Are you telling me that — and I just want to make sure I fully understand your answer — you’re not willing to go to the extent then-Justice Rehnquist did at his hearing?

ALITO: I gave a speech a while ago addressing this question from a practical standpoint or touching on it from a practical standpoint. And I said I thought that doing something like this would be an awkward and undesirable way of proceeding because it would lead to a lack of uniformity in decisions.

If jurisdiction is taken away from the Supreme Court, but jurisdiction remains in the courts of appeals on it, then conflicts in the circuits would develop and you’d have conflicting decisions potentially governing in different parts of the country and no way to resolve the issue.

And if the jurisdiction was taken away from the federal courts in general, then you would potentially have conflicting state court decisions. So the First Amendment, or whatever constitutional provision was at issue, would mean something different potentially in Vermont than it did in New Hampshire or in some other state.

So there are undesirable practical consequences of proceeding in that way.

SPECTER: I’m going to use just a little of my reserved time to comment on what Senator Leahy raised about the issue with Chief Justice Rehnquist on his statement that you could not take away the jurisdiction of the Supreme Court of the United States on First Amendment issues.

That was as interesting a dialogue as I’ve had in my tenure here, and I’ve had a few. And it arose in a curious context. I’d asked the chief justice about the question, and he refused to answer.

And over night, the staff had found an article written by a young Arizona lawyer named William H. Rehnquist in 1958 which was published in the Harvard Law Record, not the Harvard Law Review but the Harvard Law Record. And, in that article, lawyer Rehnquist said that the Senate Judiciary Committee was derelict in its duty in questioning Justice Whittaker at his confirmation hearings in not asking pointed questions about due process or equal protection.

And when my turn came, I came back to then-Justice Rehnquist and said, “How about it? Are you that William H. Rehnquist?”

SPECTER: And he admitted he was; didn’t have much choice.

And I said, “Well, how about his article?” And he emphatically said, “I was wrong.”


SPECTER: That provided an opening, and I proceeded to continue the line of questioning. And finally he allowed as to how Congress couldn’t take away the Court’s power over the First Amendment.

Seems to me patently clear that the Congress cannot take away the jurisdiction of the Supreme Court on constitutional issues — cannot do it. That’s the principal function of the Supreme Court of the United States, is to interpret the Constitution. And if the Congress can take away that authority, the Court's authority would be vacuous.

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