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More Evidence Of Alito’s Libertarian Streak

by @ 8:48 am on November 12, 2005. Filed under Samuel Alito, Supreme Court

Today’s New York Times brings further evidence in support of the argument that Judge Samuel Alito harbors a libertarian streak:

Judge Alito’s broad reading of the freedom of speech and press clauses of the First Amendment stands in contrast with his narrower interpretation of other constitutional rights, including the Fourth Amendment’s prohibition of unreasonable searches and the Sixth Amendment’s guarantees of fair trial rights for criminal defendants.

Judge Alito, President Bush’s choice for the Supreme Court, has found First Amendment violations in a school board’s antiharassment policy, in a ban on liquor advertisements in a college newspaper and in the removal of a boy’s drawing of Jesus from a schoolhouse wall.

Sounds good to me in all respects. The article goes on to examine a few cases that appear to demonstrate that Alito has a more pro-liberty interpretation of the First Amendment than some might suspect:

In Judge Alito’s 15 years on the United States Court of Appeals for the Third Circuit, his most expansive meditation on the contours of the First Amendment’s speech protections came in a 2001 case challenging a code of conduct.

David Saxe, a member of the Pennsylvania State Board of Education and the legal guardian of two students in the State College school district, challenged the district’s antiharassment policy, which forbade jokes and demeaning comments about various personal characteristics, including race, sexual orientation, clothing, social skills and values.

Mr. Saxe said the code interfered with his family’s right to speak out in opposition to homosexuality. Judge Alito, writing for a unanimous three-judge panel, ruled in his favor.

There is, Judge Alito wrote, “no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs.”

Telling students not to be catty about clothes and social skills, he went on, “may be brave, futile or merely silly.” But banning speech about values, he said, “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.”

Striking down a campus speech code is always good in my book. And then there’s this:

In another case involving students, Judge Alito, again writing for a unanimous panel, struck down a Pennsylvania law that banned alcohol advertisements in college newspapers. The law was intended to combat under-age drinking.


The law also violated the newspapers’ rights, Judge Alito ruled, by singling them out for a financial penalty. “If government were free to suppress disfavored speech by preventing potential speakers from being paid,” he wrote, “there would not be much left of the First Amendment.”

A possible end to the inane idea that so-called “commercial speech” is less deserving of First Amendment protection ? Hopefully, yes.

And then there’s this, which should also make religious conservatives happy:

Judge Alito sided with the mother of a kindergarten pupil whose son’s depiction of Jesus was removed from a schoolhouse wall after all students were asked to draw what they were thankful for. The appellate panel of 14 judges did not decide the case on First Amendment grounds, a move strongly criticized by the judge, and sent it back to a lower court.

“Instead of confronting the First Amendment issue that is squarely presented by that incident,” Judge Alito wrote, “the court ducks the issue and bases its decision on a spurious procedural ground.”

He added: “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’s restriction on expression does not satisfy strict scrutiny.”

While I would harldly call Alito a true libertarian, these cases are very intriguing.

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