Judge Samuel Alito's Opinions in Freedom os Speech Cases
CRS Report for Congress
Judge Samuel Alito’s Opinions in Freedom of
December 9, 2005
American Law Division
Congressional Research Service ˜ The Library of Congress
Judge Samuel Alito’s Opinions in Freedom of Speech
Judge Samuel Alito, who has been nominated by President Bush to take retiring
Justice Sandra Day O’Connor’s seat as associate justice of the U.S. Supreme Court,
has been a judge on the U.S. Court of Appeals for the Third Circuit since 1990. This
report examines his major judicial opinions, both for the majority and in dissent, in
freedom of speech cases. It also briefly discusses some cases in which he joined the
opinion for the court but did not write it. This report examines Judge Alito’s free
speech opinions by subject area.
In troduction ......................................................1
Prisoners’ Free Speech Rights................................1
Teachers’ Free Speech Rights................................3
Students’ Free Speech Rights................................4
Discrimination Against Religious Speech.......................6
Zoning of “Adult” Establishments.............................6
Public Employees’ Speech Rights............................12
Freedom of Association....................................13
Judge Samuel Alito’s Opinions in Freedom
of Speech Cases
Judge Samuel Alito, who has been nominated by President Bush to take retiring
Justice Sandra Day O’Connor’s seat as associate justice of the U.S. Supreme Court,
has been a judge on the U.S. Court of Appeals for the Third Circuit since 1990. This
report examines his major judicial opinions, both for the majority and in dissent, in1
freedom of speech cases. It also briefly discusses some cases 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 that provides, “Congress shall make no law ... abridging the freedom of
speech, or of the press.” The Supreme Court has interpreted this restriction to apply
not only to Congress, but to every level of government — 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 taken literally, 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 shouting fire in a theater. Freedom of speech cases thus involve
deciding just what exceptions apply to the mandate that there shall be “no law ...2
abridging the freedom of speech.” This report examines Judge Alito’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 in nature.”3 The Supreme Court has agreed to review the case.
The majority opinion relied on the Supreme Court’s decision in Turner v. Safley
1 Courts of appeals decisions are made by three-judge panels, except when they are decided
“en banc” by the entire court, which, in the Third Circuit, consists of 12 judges. Two of the
decisions discussed in this report were en banc: Banks v. Beard and C.H. ex rel. Z.H. v.
2 For additional information, see CRS Report 95-815, Freedom of Speech and Press:
Exceptions to the First Amendment, by Henry Cohen.
3 399 F.3d 134, 148 (3d Cir. 2005), cert. granted, No. 04-1739 (Nov. 14, 2005).
“that a prison regulation that impinges on inmates’ constitutional rights ‘is valid if
it is reasonably related to legitimate penological interests.’”4 The Third Circuit
The Supreme Court articulated an analytical framework within 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
legitimate governmental interest put forward to justify it.” Second, the court
must determine “whether there are alternative means of exercising the right that
remain open to prison inmates.” Third, the court must assess “the impact
accommodation of the asserted constitutional right will have on guards and other
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 the regulation is an “exaggerated5
response to prison concerns.”
The Third Circuit applied these four factors and found, as to the first factor, that
prison officials had offered no evidence that the speech restriction had a rational
connection to the legitimate 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 a reasonable amount of newspapers,
magazines, and photographs”6; and, as to the third and fourth factors, that alternative
policies that were less restrictive of First Amendment rights would have only a
minimal impact on prison resources. These alternative policies were to establish
specific reading periods in which guards deliver a single newspaper or magazine to
an inmate’s cell and retrieve it at the end of the period, or to escort prisoners “to the7
secure mini-law library to read a periodical of their choosing.”
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 First Amendment restriction would deter inmates
who were not in segregated confinement from engaging in misconduct that could
send them there, and would deter inmates who were in segregated confinement from
engaging in misconduct that could keep them there longer. Judge Alito also argued
that prison officials need not offer evidence that their rule achieves its rehabilitative
purpose because all that Turner v. Safley requires is a “logical connection between8
the regulation and the asserted goal.” As to the second factor, Judge Alito argued
that inmates could receive information about current events from books in the prison
library and could receive letters from family members and friends, even if not
photographs. As to the third and fourth factors, Judge Alito found that the alternative
policies that the majority suggested would impose significant burdens on prisons.
4 Id. at 139, quoting Turner v. Safley, 482 U.S. 78, 89 (1987).
5 Id. (citations omitted).
6 Id. at 145.
7 Id. at 147.
8 Id. at 149, quoting Turner v. Safley, 482 U.S. at 89 (emphasis added by Judge Alito).
The Supreme Court is likely to decide Banks v. Beard before the end of June
2006, but not before the Senate votes on whether to confirm Judge Alito’s
In Waterman v. Farmer, Judge Alito wrote a unanimous opinion upholding a
New Jersey statute that denied access to sexually oriented material to inmates who
were imprisoned as pedophiles, child molesters, or rapists.9 Applying Turner v.
Safley’s first prong, Judge Alito found “that New Jersey has a legitimate penological
interest in rehabilitating its most dangerous and compulsive sex offenders,” and
“could rationally have seen a connection between pornography and rehabilitative
values.”10 Applying the second prong, Judge Alito found that the statute was not so
broad as “to forbid prisoners from reading the Bible, legal publications, or other non-
pornographic books,” and therefore left the plaintiffs with alternative means to
exercise their constitutional rights.11 Applying the third and fourth prongs, Judge
Alito concluded that the less-restrictive alternative of the prison’s reviewing
incoming 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 prison resources.’”12
Teachers’ Free Speech Rights. In Edwards v. California University of
Pennsylvania, Judge Alito wrote a unanimous opinion for the Third Circuit holding
“that the First Amendment does not place restrictions on a public university’s ability13
to control its curriculum.” The case was brought against the university by a tenured
professor who alleged that the university had violated his First Amendment rights by
suspending him for teaching from a nonapproved syllabus in order to advance his
religious beliefs. Judge Alito quoted from a Supreme Court case holding that “when
the State is the speaker, it may make content-based choices. When the University
determines the content of the education it provides, it is the University speaking.”14
In Sanguigni v. Pittsburgh Board of Public Education, Judge Alito wrote a
unanimous opinion for the Third Circuit upholding a public high school’s power to
remove a teacher from her coaching positions for publishing certain statements in a15
faculty newsletter. The teacher’s statements had focused on employee morale,
asserting “that some faculty members were ‘being put under undue stress,’ had16
experienced ‘bad luck,’ and had left the building with ‘low esteem.’” Judge Alito
wrote: “While holding that public employees enjoy substantial free speech rights, the
9 183 F.3d 208 (3d Cir. 1999)
10 Id. at 215, 217.
11 Id. at 218-219.
12 Id. at 220.
13 156 F.3d 488, 491 (3d Cir. 1998).
14 Id., quoting Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819,
15 968 F.2d 393 (3d Cir. 1992).
16 Id. at 399.
Supreme Court has nevertheless recognized that ‘the State has interests as an
employer in regulating the speech of its employees,” and that, [w]ith respect to
personnel actions, ... First Amendment rights are implicated only when a public
employee’s speech relates to matters of public concern.”17 In Sanguigni, the
teacher’s statements 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. State College Area School
District, the Third Circuit, in an opinion by Judge Alito, found a public school
district’s “Anti-Harassment Policy” unconstitutionally overbroad because it
prohibited “a substantial amount of speech that would not constitute actionable
harassment under either federal or state law.”18 Even “[a]ssuming for present
purposes that the federal anti-discrimination laws are constitutional in all of their
applications to pure speech, we note that the [school district’s] Policy’s reach is
considerably broader. For one thing, the Policy prohibits harassment based on
personal characteristics that are not 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 the extreme, a catch-all
category of ‘other personal characteristics’ (which, the Policy states, includes things
like ‘clothing,’ ‘appearance,’ ‘hobbies and values,’ and ‘social skills’). ... By
prohibiting disparaging speech directed at a person’s ‘values,’ the Policy strikes at
the heart of moral and political discourse — the lifeblood of constitutional self
government (and democratic education) and the core concern of the First
Amendment. That speech about ‘values’ may offend is not cause for its prohibition,19
but rather the reason for its protection ... .”
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 the schools.” 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 any legitimate pedagogical concern.
Speech falling outside of these categories ... may be regulated only if it would20
substantially disrupt school operations or interfere with the rights of others.” Judge
Alito found that the Policy “appears to cover substantially more speech than could21
be prohibited under” this test. Among the speech it unconstitutionally covered was
speech that has the “purpose” of disruption, even when there was no reasonable basis
to believe that it would cause substantial disruption; and speech that offends but does
not interfere with the rights of others. Furthermore, “harassment” as defined by the
Policy did not necessarily rise to the level of substantial disruption.
17 Id. at 396-397, quoting Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
18 240 F.3d 200, 204 (3d Cir. 2001).
19 Id. at 210.
20 Id. at 214.
21 Id. at 217.
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 speech in a given setting should be affected — let alone
dictated — by legislative enactments intended to proscribe 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 the students were asked to make posters depicting what they were thankful
for on Thanksgiving Day.23 The plaintiff produced a poster indicating that he was
thankful for Jesus, and his poster was displayed in the hallway of the school, along
with those of his classmates. Subsequently, however, Board of Education employees
removed the poster because of its religious theme, and later the child’s teacher
returned the poster to the hallway, but in a less prominent location at the end of the
hallway. A free speech 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 because it found that it was “not alleged that the removal occurred as a result of
any school policy against the exhibition of religious material,” or “that the restoration
to ‘a less prominent place’ was the result of a school policy or an authoritative
directive from [the principal or superintendent].”24 Judge Alito dissented, writing:
I would hold that discriminatory treatment of the poster because of its “religious
theme” would violate the First Amendment. Specifically, I would hold that
public school students have the right to express religious views in class
discussion or in assigned work, provided that their expression falls within the
scope of the discussion or the assignment and provided that the school’s25
restriction on expression does not satisfy strict scrutiny.
The final phrase in this quotation implies that the school’s restriction on free
expression would be constitutional if it satisfied strict scrutiny. What Judge Alito
meant by this was that, if the poster “would have ‘materially disrupt[ed] classwork
or involve[d] substantial disorder or invasion of the rights of other” students, then its
discriminatory treatment would be permitted as an exception to the First Amendment.
Otherwise, to treat the poster differently “because it expressed thanks for Jesus,
rather than for some secular thing ... was quintessential viewpoint discrimination, and26
it was proscribed by the First Amendment. ...” Judge Alito added that for the
school to display the poster would not have violated the Establishment Clause
because “[t]he Establishment Clause is not violated when the government treats
religious speech and other speech equally and a reasonable observer would not view27
the government practice as endorsing religion.” Judge Alito would have sent the
case back to the lower court to determine whether the poster had been treated in a
22 Id. at 218.
23 226 F.3d 198 (3d Cir. 2000) (en banc), cert. denied, 533 U.S. 915 (2001).
24 Id. at 202.
25 Id. at 210.
27 Id. at 212.
discriminatory fashion because of its religious content 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 Alito
wrote a unanimous opinion affirming a preliminary injunction issued against a public
school district to require it to allow a religious group “to hand out materials and staff
a table at Back-to-School nights.”28 Judge Alito noted 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 and the 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 to allow 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 was not school-sponsored, because
the school district’s purpose in allowing the distribution and posting of community
group materials was “not to convey its own message” but was “to ‘assist all
organizations’ in the community.”30 Because the plaintiff’s speech was private and
not school-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 a preliminary injunction pending trial.
Zoning of “Adult” Establishments. In Phillips v. Borough of Keyport, a
district court had dismissed a lawsuit before trial, but the Third Circuit ruled that it
should go forward and sent it back for trial.31 Judge Alito concurred, but dissented
with respect to allowing one of the claims to go forward. The lawsuit was over the
denial of an application to open an adult book and video store at a particular location.
The denial was based on an ordinance that prohibited such 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 obscenity or child pornography, neither of which was at issue in Phillips.
Speech that is protected by the First Amendment may not be regulated on the basis
of its content unless the regulation satisfies strict scrutiny. This means, as the court
in Phillips wrote, that content-based regulations “will be sustained only if they are
shown to serve a compelling state interest in a manner which involves the least
possible burden on expression.”32
28 386 F.3d 514, 522 (3d Cir. 2004).
29 Id. at 526.
30 Id. at 525.
31 107 F.3d 164 (3d Cir. 1997), cert. denied, 522 U.S. 932 (1997).
32 Id. at 172.
Now, it might appear that a regulation that limits the location of a bookstore
because it sells sexually explicit material discriminates against the bookstore on the
basis of the content of its material, and that such a regulation therefore should be
subject to strict scrutiny. The Supreme Court, however, has held that regulations that
“are justified without reference to the content of the regulated speech” are to be
regarded as content-neutral.33 The regulation at issue in Phillips was justified
allegedly not on the basis of animus toward sexually explicit material, but “to prevent
the deterioration of the community” 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
necessarily constitutional. 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 are narrowly tailored to serve a significant or
substantial governmental interest; and ... they leave open ample 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 with strict scrutiny in that a regulation may be narrowly
tailored without necessarily imposing the least possible burden on expression, and
may serve a significant or substantial governmental interest without necessarily
serving a compelling one.
In Phillips, the district court had concluded “that the Ordinance is an effort to
suppress the secondary effects of sexually explicit expression and not sexually
explicit expression itself,” and that it “was narrowly tailored to achieve that
objective.”36 The court of appeals, however, concluded “that the district court was
simply not in a position to make these findings,” and therefore sent the case back to
the district court to hear evidence on these matters.37 The court of appeals added that
“our First Amendment jurisprudence requires that the Borough identify the justifying
secondary effects with some particularity,” and that “[t]o insist on less is to reduce
the First Amendment to a charade in this area.”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 secondary effects] presented in court when that judgment is
challenged,” there is no “requirement that such a factual basis have been submitted
to the legislative body prior to the enactment of the legislative measure.”39 Judge
33 Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48 (1986) (emphasis in original).
34 107 F.3d at 170.
35 Id. at 172.
36 Id. at 173.
38 Id. at 175.
39 Id. at 178.
Rosenn, dissenting, observed that “not a single court of appeals has interpreted
Renton as requiring absolutely 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 court should also consider the plaintiffs’ claim that their right
to substantive due process was violated when their application was subjected to
“denial, delay and revocation” because of defendants’ “dislike of the proposed adult
entertainment expression.”41 Judge Alito dissented because he believed that, even
if the plaintiffs’ application had been rejected for improper reasons, he was not
convinced “that every ill-motivated governmental action that restricts the use of real
estate constitutes a violation of substantive due process.”42 He believed, therefore,
that the district court had properly dismissed the substantive due process claim. His
dissent thus did not turn on a point of First Amendment law.
In Terminello v. City of Passaic, Judge Alito joined an unreported decision in
a case that challenged a requirement that, in order to qualify for an entertainment
license, a theater must employ an 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
at regulating speech on the basis of its content. The district court had granted the
theater a preliminary injunction that allowed it to operate pending trial. The City
appealed, and the Third Circuit vacated the preliminary injunction because the lower
court had used the wrong standard in granting the injunction. It should have used the
intermediate scrutiny standard that is applicable to restrictions that 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[ ] open ample alternative channels for communication.”
The Third Circuit found that the district court could not have properly
determined whether the restriction was narrowly tailored “because there is no
evidence in the record establishing the cost of 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 this question and
then determine whether the requirement was narrowly tailored and whether it should
reissue 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
40 Id. at 189. Renton is a Supreme Court case that upheld zoning of adult theaters; it is cited
in n. 33, supra.
41 Id. at 181.
42 Id. at 186.
43 118 Fed. Appx. 577 (3d Cir. 2004) (per curiam).
“lewd, immoral, or improper entertainment” in a facility holding a liquor license. 44
They requested a preliminary injunction, pending a trial, against the enforcement of
the statute. The district court denied 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 the plaintiff is
reasonably likely to succeed on the merits and (2) that the plaintiff is likely to
experience irreparable harm without the injunction.”
Applying this standard, the court of appeals found that the plaintiffs “have made
a strong case that the statute is overbroad,” which means that it restricts speech that
is protected by the First Amendment. But the court did not find it necessary to decide
the question, because it held that “the plaintiffs 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 result in
irreparable harm.” This was because “the plaintiffs have never been cited for
violating the statute or regulations, and there is no imminent threat of such action.”
A dissenting judge found that “[t]he plaintiff dancers have already suffered
irreparable harm and will continue to suffer irreparable harm if their motion for a
preliminary injunction is not granted.” This was because the dancers’ “uncertainty
as to what the regulation prohibits and their fear of being found in violation” caused
them “to restrain their performances.” The dissent quoted the Supreme Court as
having said that “the loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury.”45
The district court later decided the case on the merits and found the statute
unconstitutional to the extent that it contained the words “immoral” and “improper”
because “[t]here can be no doubt that the terms ‘immoral or improper’ are vague,”
and therefore the statute “does not provide reasonably clear notice of what is and
what is not prohibited.”46 The court upheld the statute insofar as it applied to “lewd”
conduct, as it found that “lewd” was “sufficiently clear so as not to constitute
Defamation. Tucker v. Fischbein was a defamation case for which Judge47
Alito wrote the Third Circuit’s 2-to-1 opinion. The suit was brought by William
Tucker and his wife, C. Delores Tucker, a crusader against “gangsta rap” lyrics,
against the estate of rapper Tupac Shakur and several companies connected with the
production of an album of Shakur’s. The plaintiffs alleged that Shakur on the album
had attacked Mrs. Tucker “using ‘sexually explicit messages, offensively coarse
language and lewd and indecent words’ and that she had received death threats48
because of her activities.” The plaintiffs sued for defamation, alleging that the
44 83 Fed. Appx. 437, 2003 WL 22931320 (3d Cir. 2003) (per curiam).
45 Elrod v. Burns, 427 U.S. 347, 373 (1976).
46 Conchatta, Inc. v. Evanko, 2005 WL 426542 (E.D. Pa. 2005).
47 237 F.3d 275 (3d Cir. 2001), cert. denied, 534 U.S. 815 (2001).
48 Id. at 280.
husband had suffered a loss of consortium as a result of the lyrics. Loss of
consortium means loss by one spouse of the comfort and society of the other, and
may, but does not necessarily, include the loss of sexual relations.
Richard Fischbein, the lawyer representing Shakur’s estate, was quoted in the
press as expressing 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 defamed them 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 have destroyed Mrs.
Tucker’s sex life, and the Tuckers amended their complaint again, to add another
defamation claim against Fischbein, as well as one against Time, and Newsweek for
publishing his comment.
Fischbein, Time, and Newsweek moved for summary judgment, and the federal
district court granted their motions, which means that it dismissed the case without
allowing it to go to trial. It did so because the Tuckers were “public figures” under
defamation law, and could not prove by clear and convincing evidence that the
defendants acted with “actual malice,” as public figures must do to win a defamation
case. To act with “actual malice” means to make a defamatory statement “with
knowledge that it was false or with reckless disregard of whether it was false or
On appeal, in order to show that Fischbein had acted with actual malice, “the
Tuckers argue[d] that Fischbein, as a lawyer, should have known that a claim for loss
of consortium may not have anything to do with damage to sexual relations,” so he
“was at least reckless when he told the press that Mrs. Tucker was trying to recover
for injury to her sex life.”50 Judge Alito rejected this argument with respect to the
first time that Fischbein made a statement to the press, because, at that time, “there
is no evidence that Fischbein was informed that Mr. Tucker’s consortium claims did
not refer to damage to sexual relations.”51 After the Tuckers added him to their
complaint, however, it appears 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 that Fischbein’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 he found
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 read the Tuckers’ amended complaint as “insufficient to indicate a change
in their attitude toward alleging a loss of sexual relations” and therefore he found no
clear and convincing evidence that Fischbein had spoken with actual malice.52
49 New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964).
50 Tucker v. Fischbein, 237 F.3d at 284.
52 Id. at 292. On remand, Fischbein again won summary judgment, but on different grounds.
In another defamation case, Remick v. Manfredy, Judge Alito joined an opinion
by Judge Sloviter finding that, in context, the defendant’s statement that the plaintiff
was “attempting to extort money” was not defamatory because it constituted mere
“rhetorical hyperbole.”53 It was, in context, an opinion, and, under Pennsylvania law,
“an opinion cannot be defamatory unless it ‘may reasonably be understood to imply
the existence of undisclosed defamatory facts justifying the opinion.’”54
Commercial Speech. In Pitt News v. Pappert, Judge Alito wrote a55
unanimous decision striking down a restriction on commercial speech. Section 4-
498 of the Pennsylvania Statutes Annotated banned advertisers from paying for
alcoholic beverage advertising in communications media affiliated with a university,
college, or other educational institution, and a student newspaper sued. Judge Alito
first noted that it makes no difference that the statute, rather than 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 a content-based restriction and must be analyzed as such.”56
Judge Alito next applied the Central Hudson test to the speech restriction.
Advertising is a form of commercial speech, and commercial speech, though
protected by the First Amendment, is subject to greater governmental regulation than
other speech. The Supreme Court has prescribed the four-prong Central Hudson test
to determine whether a governmental regulation of commercial speech is constitu-
tional. This test asks initially (1) whether the commercial speech at issue is protected
by the First Amendment (that is, whether it concerns a lawful activity and is not mis-
leading) and (2) whether the asserted governmental interest in restricting it is
substantial. “If both inquiries 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 that interest.”57
Judge Alito noted that the first prong of the test is satisfied, as “the law applied
to ads that concern lawful activity (the lawful sale of alcoholic beverages) and that
are not misleading.”58 He also found the second prong satisfied, as “[t]here can also
be no dispute that the asserted government interest — preventing underage drinking
and alcohol abuse — are, at minimum, ‘substantial.’”59 He found, however, that the
statute founders on the third and fourth prongs. As for the third prong, “the
The Tuckers again appealed, and the appeal is pending.
53 238 F.3d 248, 262 (3d Cir. 2001).
54 Id. at 261 (emphasis added by the Third Circuit).
55 379 F.3d 96 (3d Cir. 2004).
56 Id. at 106.
57 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447
U.S. 557, 566 (1980).
58 379 F.3d at 106.
59 Id. at 106.
Commonwealth has not shown that Section 4-498 combats underage or abusive
drinking ‘to a material degree.’ ... Section 4-498 applies only to advertising in a very
narrow sector of the media ... and the Commonwealth has not 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 be interpreted to require the legislature to use the “least restrictive means”
available to accomplish its purpose. Instead, the Court held, legislation regulating
commercial speech satisfies the fourth prong if there is a “reasonable ‘fit’ between
the legislature’s ends and the means chosen to accomplish those ends.”61 “Here,”
Judge Alito wrote, “Section 4-498 is both severely over- and under-inclusive.”62 It
was overinclusive because it included students who were over the legal drinking age,
and they were a substantial majority of the students. It was underinclusive
presumably because it applied only to a narrow sector of the media.
Judge Alito added that Pennsylvania “can seek to combat underage and abusive
drinking by other 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 “that Section 4-498 fails the Central Hudson
test,” and then added that it “violates the First Amendment for an additional,
independent reason: it unjustifiably imposes a financial burden on a particular
segment of the media, i.e., media associated with universities and colleges.”64 For
such a financial burden 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 compelling importance.’”65 But “the
Commonwealth has not shown that Section 4-498 is ‘necessary’ to discourage
underage drinking or abusive drinking.”66
Public Employees’ Speech Rights. In Swartzwelder v. McNeilly, Judge
Alito wrote a unanimous decision upholding a preliminary injunction that prevented
the Pittsburgh Police Bureau from enforcing its order requiring its employees “to
obtain clearance before testifying in court under certain circumstances.”67 In this
case, the Bureau attempted to enforce its order against a police officer who was an
expert in the proper use of force by police officers and who was subpoenaed to testify
as a defense expert in the prosecution of a police officer for first-degree murder in
connection with a shooting in the line of duty. The subpoenaed police officer sued,
60 Id. at 107.
61 Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480 (1989).
62 379 F.3d at 108.
64 Id. at 109.
65 Id. at 111, quoting Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue,
67 297 F.3d 228, 231 (3d Cir. 2002).
contending that the order deprived him of his First Amendment right of 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 the plaintiff was likely to prevail in the lawsuit, that irreparable harm
would result if the preliminary injunction were not granted, that granting the
preliminary injunction would not cause greater harm to the defendant than denying
it would cause to the plaintiff, and that the preliminary injunction would be in the
Judge Alito noted the general principle that, “[w]hile public employees do not
give up all ‘the First Amendment rights they would otherwise enjoy as citizens to
comment on matters of public interest,’ ‘the State has interests as an employer in
regulating the speech of its employees ... .”68 He found that a speech restriction
would be permissible in this case if the government could “show that the interests of
both potential audiences and a vast group of present and future employees in a broad
range of present and future expression are outweighed by that expression’s ‘necessary
impact on the actual operation’ of the Government.”69 As for the free speech
interests in Swartzwelder v. McNeilly, “the regulation of opinion testimony alone
imposes a significant burden on First Amendment interests” of both Bureau
employees and potential audiences. As for the government’s interests, Judge Alito
found that several interests that the government cited, such as “keeping track of the
location of employees who are testifying,” could be 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 served by an
order that applied only to testimony related to an employee’s official duties.71 Judge
Alito therefore concluded that the district court had not abused its discretion in
finding that the plaintiff was likely to prevail in the lawsuit. As for the other
elements that must be shown to be granted a preliminary injunction, Judge Alito
noted that “[t]he loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury”; that the balance of hardships
weighs in the plaintiff’s favor because a preliminary injunction “leaves the City free
to attempt to draft new regulations”; and that “the public interest is best served by
eliminating the unconstitutional restrictions imposed by” the order.72
Freedom of Association. In In re Asbestos School Litigation, 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 of
action claims.”73 The plaintiffs had alleged that Pfizer had “marketed an asbestos-
containing product for an eight-year period without warnings though it had specific
68 Id. at 235.
69 Id. at 236, quoting United States v. National Treasury Employees Union, 513 U.S. 454,
70 Id. at 238.
71 Id. at 239-240.
72 Id. at 241-242 (citing Elrod v. Burns, supra note 45, regarding irreparable injury).
73 46 F.3d 1284, 1286 (3d Cir. 1994).
knowledge of the product’s hazard. This conduct was in keeping with the method
of marketing asbestos products by its co-conspirators, as Pfizer well knew, without
any or adequate warnings.”74 Pfizer’s alleged co-conspirators were members of a
trade organization called the Safe Building Alliance (SBA).
Pfizer argued that to hold it liable on the conspiracy claim would penalize its
“exercise of its First 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 decision in 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 white
merchants in Claiborne County, Mississippi, from 1966 to 1972. A group of the
merchants sued the N.A.A.C.P. and the Mississippi Supreme Court upheld a
judgment in the merchants’ favor “based on civil conspiracy and the common law
tort of malicious interference with the plaintiffs’ businesses.”77 The boycott had
included some acts of violence, but the U.S. Supreme Court reversed, concluding
“that the 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 an individual belonged to a
group, some members of which committed acts of violence. For liability to be
imposed by reason of association alone, it is necessary to establish that the group
itself possessed unlawful goals and that the individual held a specific intent to79
further those illegal aims.
“In the present case,” Judge Alito wrote, “it is abundantly clear that the strict
standard set out in 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 the constitutionally protected conduct in
Claiborne Hardware was of much greater societal importance[,] ... nothing in the
Supreme Court’s opinion ... lends support to the suggestion that the standard it
enunciated was not meant to have general applicability.”81
Dissenting Judge Stapleton argued that “[j]oining together with others does not
render legal conduct that would be illegal if engaged in on one’s own,” and
Claiborne Hardware “expressly recognizes that one may be held liable if one
74 Id. at 1287.
75 Id. at 1288.
76 Id. at 1289, citing N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982).
79 Id., quoting 458 U.S. at 920 (emphasis added by Third Circuit).
80 46 F.3d at 1290.
81 Id. at 1291.
supports a group that one knows to have ‘illegal aims.’”82 In this case, he added,
“Pfizer has failed to convince me that its position is in any way different from a
defendant in any antitrust conspiracy case. ...”83
We conclude this report with a note of caution. For various reasons, one should
draw only limited conclusions from the fact that, in each of the cases discussed
above, Judge Alito voted for the party to the litigation who claimed a free speech
right, or for the other party (which was a governmental 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 a lower-court judge may feel obliged to follow whether he agrees
with them or not, but which he might be inclined to overturn were he on the Supreme
Another reason is that the fact that a judge favored or disfavored the free speech
side in a particular case may reveal little of his view of the First Amendment, because
the basis of his opinion may not have been his view of the First Amendment. In
Phillips v. Borough of Keyport, for example, Judge Alito joined an opinion to send
the case back to the lower court to hear additional evidence. This ruling favored the
government because the lower court had previously ruled against the 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 the district court had applied the wrong legal standard in granting an
injunction, not necessarily because the 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 judge on the basis of particular rulings is that even a ruling for the
government may expand the right of free speech, and a ruling against the government
may narrow it (not that there are necessarily any instances of either of these
occurrences among the cases discussed in this report). A famous example of the
former occurrence is Schenck v. United States, in which Justice Oliver Wendell
Holmes wrote an opinion that affirmed a criminal conviction, yet expanded the First
Amendment so that the government could punish political advocacy only when such
advocacy creates a “clear and present danger.”84
82 Id. at 1296.
84 249 U.S. 47, 52 (1919).