Free Speech Libertarian
Judge Alito has an expansive view of the First Amendment.

by EUGENE VOLOKH
Sunday, November 13, 2005 12:01 A.M. EST

What would Samuel Alito's confirmation mean for First Amendment law? It's impossible to be sure, but his appeals court opinions give us some clues. A Justice Alito would likely take a pretty broad view of free speech protections; support religious exemptions from some generally applicable laws; uphold evenhanded benefit programs that include both religious and secular institutions; and uphold the use of religious symbolism by the government.

• Free speech. Until the late 1980s, liberal Supreme Court justices generally supported broad free speech rights, and conservative justices usually took a narrower view. No longer. I've studied the votes in free speech cases from 1994 (when Justice Stephen Breyer was appointed) until last summer, when Chief Justice William Rehnquist died. The broadest views of free speech were held by conservative Anthony Kennedy, followed by conservative Clarence Thomas tied with liberal David Souter. The narrowest views were held by liberal Justice Breyer, followed by Chief Justice Rehnquist and Justice Sandra Day O'Connor (both conservatives). Justices John Paul Stevens and Ruth Bader Ginsburg (liberals) and Antonin Scalia (conservative) were in the middle.

Judge Alito's past decisions suggest that he would be closer to Justices Kennedy and Thomas than to Justice O'Connor. Naturally, those decisions are shaped by Supreme Court precedents; but precedents often give lower court judges some flexibility, and Judge Alito has generally used this flexibility to protect speech.

In Pitt News v. Pappert, Judge Alito's opinion upheld a campus newspaper's constitutional right to publish alcohol advertising. The ban, he noted, would have little practical effect on the amount of alcohol advertising seen by underage readers. As more than 75% of prospective newspaper readers--university faculty, staff and students--were above 21, the ban would substantially affect communication to lawful alcohol buyers. And since the law singled out a small slice of the media (campus newspapers), it violated a little-used branch of First Amendment law barring such selective regulations.

The Supreme Court's jurisprudence on commercial speech is notoriously unsettled and vague, but Judge Alito's carefully reasoned opinion suggests a tendency to read speech-protective precedents rather broadly. A Justice Alito would likely move the court toward broader free speech protection, since Justice O'Conner took a relatively narrow view. It's impossible to say how a Justice Alito would vote on other free speech controversies such as campaign finance reform. But he generally looks like something of a free speech libertarian.

• Religious exemptions. Does the free exercise clause entitle religious objectors to exemptions from certain generally applicable laws--for instance, from bans on peyote or government employer dress codes?

Justices O'Connor, Souter and Breyer have supported exemptions, while Rehnquist, Scalia, Thomas and Kennedy, plus Stevens and Ginsburg, have not, taking the view that the free exercise clause bans only discrimination against religion. In Employment Division v. Smith (1990), the court adopted this latter view, holding that the government cannot single out religion for special restriction, but allowing generally applicable laws that incidentally burden religion--for instance, general bans on drugs like peyote, which some people use for religious purposes.

Two of Judge Alito's decisions suggest that he would take the broader view of free exercise. In Fraternal Order of Police v. Newark and Blackhawk v. Commonwealth, he voted in favor of religious objectors. Though the government rules (a ban on the wearing of beards by police officers, and a fee requirement for keeping wildlife in captivity) didn't single out any religion, Judge Alito concluded that they were not really "generally applicable," since they included exemptions for some secular conduct--for instance, for police officers who had medical reasons for not shaving, or for circuses and zoos that didn't have to pay the fee for keeping wildlife.

Once the government creates exemptions for secular conduct, Judge Alito held, it must show a compelling reason to deny them for religious conduct. This is a plausible reading of Smith, but one that suggests that a Justice Alito will be open to religious exemption claims.

• Church-state relations. Unlike free speech and free exercise, Supreme Court decisions involving the establishment clause have recently split more predictably down conservative-liberal lines. Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas have reasoned that government funding of programs may evenhandedly include religious institutions alongside secular institutions, and that the government's own speech may include religious symbolism, at least when it's generically monotheistic rather than specifically Christian.

Justices Stevens, Souter and Ginsburg have taken the opposite views. Justices Breyer and, especially, O'Connor have been swing votes, leaving the law not fully settled. Last year's Ten Commandments cases, which upheld one display and struck down another, are the result.

It seems likely that a Justice Alito would give the conservatives a majority on issues involving funding and display. His lower court opinions fairly apply the rather vague Supreme Court precedents, reaching results that the court's conservatives would have reached, but that swing-voter Justice O'Connor would also likely have come to--for instance upholding a holiday display that included both religious and secular symbols.

He also seems to conclude that equal treatment of religious institutions is not establishment, for instance holding that religious groups may have the same access as secular groups to public school bulletin boards. And he seems to lean toward viewing religious speech by the government--part of a longstanding American tradition--as constitutionally permissible, too.

What do we see here in Judge Alito? Not an O'Connor, Scalia or Rehnquist; rather, a judge with his own mix of conservatism, libertarianism and egalitarianism, a cautious jurist who seems likely to move the court toward a slightly more claimant-friendly view of free speech and religious freedom--and a slightly more government-friendly view of the Establishment Clause.

Mr. Volokh is professor of law at UCLA School of Law and the founder of the Volokh Conspiracy blog.