Samuel Alito’s dissents and concurrences

Thursday, November 10, 2005

This compilation is part of an online symposium on the First Amendment Center Online concerning Judge Samuel
Alito’s First Amendment jurisprudence.

  • Dissenting opinion, Banks v. Beard,
    399 F.3d 134 (3rd Cir. 2005). The 3rd Circuit ruled 2-1 that a prison policy
    restricting inmates in a long-term segregation unit from most printed materials
    (newspapers, magazines and photographs that were not legal or religious in
    nature) violated the First Amendment. The majority reasoned that the ban “cannot
    be supported as a matter of law by the record in this case.” Judge Alito
    dissented, writing that the “regulations are reasonably related to the
    legitimate penological goal of curbing prison misconduct.” Alito did mention
    that an as-applied challenge — rather than the across-the-board facial challenge
    in this case — by an inmate with a “record of reformed behavior” would “present
    different considerations.”

  • Dissenting opinion, C.H. v. Oliva,
    226 F.3d 198 (3rd Cir. 2000). The en banc 3rd Circuit ruled 9-3 that a public
    school student failed to state a claim against school officials for the alleged
    censorship of a religious Thanksgiving poster when the child was in
    kindergarten. (The court divided 6-6 in the more high-profile aspect of the
    litigation which occurred when the student was in first grade —
    (see Charles Haynes column.)The
    majority remanded the case to the district court to allow the student and his
    parents to amend their complaint. Judge Alito dissented, criticizing the court
    for “duck[ing] the issue and bas[ing] its decision on a spurious procedural
    ground never raised by the defendants.” He spoke at length about the principle
    of viewpoint discrimination, particularly as it applies to student religious
    speech. “Taking down Zachary’s Thanksgiving poster and replacing it in a less
    conspicuous location because of its religious content was plainly viewpoint, not
    subject matter, discrimination,” he explained. “Rather, the poster was allegedly
    given discriminatory treatment because of the viewpoint that it expressed,
    because it expressed thanks for Jesus, rather than for some secular thing. This
    was quintessential viewpoint discrimination.”
  • Concurring and dissenting opinion, Phillips v. Borough of
    107 F.3d 164 (3rd Cir. 1997). The en banc 3rd Circuit ruled in
    a secondary-effects case that a cognizable First Amendment claim was raised by
    the prospective adult-business owner and that, on remand, the New Jersey borough
    “must be required to articulate the governmental interests on the basis of which
    it seeks to justify the ordinance.” The court reasoned that “our First Amendment
    jurisprudence requires that the Borough identify the justifying secondary
    effects with some particularity.” It concluded that “to insist on less is to
    reduce the First Amendment to a charade in this area.” Judge Alito wrote a
    separate “concurring and dissenting” opinion. Alito concurred on the First
    Amendment issue. He dissented on a separate due-process issue. Judge Max Rosenn
    wrote a dissenting opinion that was far more protective of First Amendment
    interests than the opinions of the majority or Judge Alito. Rosenn chastised the
    majority for allowing the borough the opportunity to “structure a post hoc
    record [of secondary effects] more than four years later.”

  • Concurring opinion, Rappa v. New Castle County, 18 F.3d 1043 (3rd Cir.
    1994). A three-judge panel of the 3rd Circuit struck down a portion of a Delaware
    law that exempted certain signs from a general statute banning all road signs
    within 25 feet of state highways. An individual whose political campaign signs
    were removed argued that the law violated the First Amendment by allowing some
    commercial signs and disallowing his noncommercial signs. All three judges on
    the panel — Edward Becker, Leonard Garth and Alito — wrote separate opinions
    with Becker writing the main opinion. In the litigation, the county attempted to
    invoke the secondary-effects doctrine to justify the sign law. Judge Becker
    questioned the applicability of the doctrine: “We have some doubts, however,
    that political speech is subject to secondary effects analysis; a majority of
    the Supreme Court has never explicitly applied the analysis to political
    speech.” Judge Alito wrote a short concurring opinion that did not specifically
    address the applicability of the secondary-effects doctrine.
  • Tags: ,