Samuel Alito’s per curiam opinions

Monday, November 7, 2005

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

During his time on the 3rd U.S. Circuit Court of Appeals, Judge Alito has
participated in 17 First Amendment per curiam opinions. Two of these involved
the same litigants. Nine of the opinions involved inmate First Amendment claims.
All of the opinions are unpublished.

Hoffenberg v. Provost (2005). Panel rejected a former inmate’s constitutional claims, including a First Amendment retaliation claim. The former inmate claimed in part that prison officials retaliated against him after he had filed grievances against various prison officials.

Allen v.
(2005). Rejected an inmate’s First Amendment claim that prison
officials retaliated against him for participating in a prior lawsuit. Inmate
also claimed he was denied access to the courts because prison officials
deliberately withheld his necessary legal materials. The panel said the facts
“do not suggest a claim of retaliation.”

Romansky v.
(2005). Rejected an inmate’s First Amendment claim that prison
officials retaliated against him for filing a grievance.

Alexander v.
(2005). Rejected an inmate’s First Amendment claim based on
his allegation that prison officials either damaged or withheld his mail. The
panel wrote that “a single instance of damaged or withheld mail does not
constitute a First Amendment violation.”

Reyes v.
(2005). Police officers challenged a protective order entered
in a discrimination lawsuit that prevented attorneys in the case from talking to
the news media. Panel remanded the case to the district court for it to “clarify
the scope of the restrictions that it has placed on the disclosure of court
records and discovery information and on communications by counsel to the

Burnside v.
(2005). Rejected an inmate’s constitutional challenges, including
a First Amendment claim that prison officials refused to process various
grievances. The panel wrote that the failure to process grievances “does not
rise to the level of a constitutional right.”

Nelson v.
(2005). Vacated a lower court ruling dismissing an inmate’s claim
that he was retaliated against for refusing to participate in a drug program
that contained religious elements objectionable to the inmate. The panel wrote
that the inmate “should be afforded the opportunity to amend his complaint.”

Henry v. Dep't
of Corrections
(2005). Rejected an inmate’s constitutional challenge,
including his claim that his restriction to non-contact visitations violated his
First Amendment rights. Relying on the 2003 U.S. Supreme Court decision in Overton
v. Bazzetta,
the panel rejected this claim.

Gordon v.
(2005) Denied an inmate’s First Amendment access to the court
claim, based on an allegation that prison guards improperly confiscated the
inmate's legal materials.

C.M. v. Bd. of
(2005). Case primarily concerned a claim under the Individuals
with Disabilities in Education Act. However, the case also included a First
Amendment retaliation claim. A student and his parents contended that a school
psychologist punished the student for taking a brownie because of a prior
lawsuit filed by the student. The panel rejected this retaliation claim, finding
no causal connection between the “brownie incident” and the prior lawsuit.

Terminello v.
City of Passaic
(2004). Vacated a lower court ruling and remanded to the
district court the case involving the denial of a theater owner’s entertainment
license. The theater’s license was denied because its owners refused to employ
an off-duty police officer to control criminal activity on the premises. The
panel said such a regulation should be evaluated under the secondary-effects
doctrine, which requires the city to show that its regulation is narrowly
tailored to serve a substantial governmental interest.

Marwood v.
Elizabeth Forward Sch. Dist.
(Feb. 19, 2005); Marwood v. Elizabeth
Forward School Dist.
(Feb. 5, 2005). These two panel opinions arose out
of litigation filed by a teacher who alleged she was retaliated against for her
advocacy of Learnball, a teaching method. In the Feb. 5, 2005, ruling, the panel
unanimously rejected the teacher’s retaliation claims. The second ruling
featured a 2-1 panel vote over the clarification of an earlier order in the
case. There were no substantive First Amendment issues discussed in the per
curiam opinion.

Inc. v. Evanko
(2003). Case concerned a challenge filed by an adult
business claiming that a Pennsylvania Liquor Code ban on “lewd, immoral or
improper” entertainment violated the First Amendment. Panel ruled 2-1 (Alito was
in the majority per curiam opinion) to deny the club’s request for a preliminary
injunction even though the majority noted that the plaintiffs “have made a
strong case that the statute is overbroad.” The majority per curiam opinion
denied injunctive relief, saying that the plaintiffs failed to show evidence of
irreparable harm. The majority pointed out that the plaintiffs did not purse an
as-applied challenge on appeal. Judge Roth dissented from the denial of a
preliminary injunction.

Note: After the 3rd Circuit decision, the case went back down to the district
court for more proceedings. The district court later granted the plaintiffs
partial summary judgment, ruling that the terms “immoral” and “improper” are
unconstitutionally vague.

Carroll v.
(2005); Carroll v.
(2003). Panel issued two rulings in a political affiliation
First Amendment case (plaintiff alleged he was terminated because of his
political affiliation). Rulings did not reach the merits of the underlying First
Amendment claims.

Spruill v. Rosemeyer (2002). This two-paragraph opinion vacates a
district court’s dismissal of an inmate’s First Amendment retaliation claim.
Note: This inmate has filed several lawsuits and this opinion is different from
the ruling in Spruill v. Gillis (2004).

Ash-Bey v.
(2002). Rejected an inmate’s claims under the First Amendment
and the Religious Freedom Restoration Act regarding restrictions on “the wearing
of certain apparel.” Without much analysis or background, the panel concluded
that the district court correctly applied the Turner
v. Safley
(reasonably related to legitimate penological concerns) test.
With respect to the RFRA claim, the panel wrote that “the record does not show
that the regulations impose a ‘substantial burden.’”