Mark Goodman

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

In the world of constitutional jurisprudence, young people often find themselves treated like the late comedian Rodney Dangerfield: they get no respect. For the last couple of decades, when students have gone to court claiming infringement of their First Amendment rights, judges who more often than not rejected their claims, made their disdain painfully obvious.

That fact is what makes President Bush’s latest nominee to the U.S. Supreme Court all the more remarkable. In his 15 years on the federal bench, Judge Samuel A. Alito Jr. has demonstrated an extraordinary appreciation for the First Amendment rights of children and youth. Whether dealing with claims against advertising restrictions on college student journalists or restrictions on religious or “hate speech” at elementary and secondary schools, the opinions Judge Alito has authored, in both conclusion and word, indicate a belief that young Americans are entitled to meaningful First Amendment protections.

Respecting a college newspaper’s rights
The opinion authored by Judge Alito that perhaps reflects the most expected deference to the First Amendment rights of students is the one that deals with those who are primarily adults. In The Pitt News v. Pappert (2004), Alito wrote a unanimous opinion by a three-judge panel of the 3rd U.S. Circuit Court of Appeals rejecting a Pennsylvania law that banned alcoholic beverage advertising in publications affiliated with educational institutions. The student newspaper at the University of Pittsburgh, The Pitt News, sued to contest the law after losing $17,000 in advertising revenue from bars and clubs in one year.

In concluding that the advertising ban was unconstitutional, Alito indicated strong support for commercial speech — not an especially unexpected position for a jurist labeled “conservative.” But what is more remarkable is the fact that his opinion never once denigrates the interest of the student newspaper in providing accurate information about a legal product to its readers. Although the opinion noted that neither side in the case disputed that the paper was controlled by students, not university officials, and that 75% of the campus population was of legal drinking age, one could imagine another judge easily buying into the state’s argument that the restriction was necessary to prevent underage drinking and alcohol abuse. But as Alito’s opinion noted, the state provided no evidence that the restriction would have any effectiveness in combating those problems, let alone that it was a narrowly tailored means of doing so.

Ultimately, there is nothing in The Pitt News decision that suggests any special endorsement of student press freedom. But what it does convey is something the student press seldom experiences in court: a sense that a college student newspaper deserves to be treated like any other publication — with respect.

Giving teeth to Tinker
A more unexpected example of Judge Alito’s enthusiasm for student First Amendment rights comes from his opinion in Saxe v. State College Area School District (3rd Cir., 2001). Writing again for a unanimous three-judge panel, Alito rejected a public school district’s policy that allowed punishment of expression that the school referred to as “harassment” and its opponents referred to as protected speech. The policy prohibited speech that may be critical of homosexuality or other personal differences.

Alito’s opinion openly rejects a categorical “harassment exception” to the First Amendment, noting that the Constitution 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.” But the opinion also reflects a clear understanding of and commitment to one of the Supreme Court’s most important precedents on the First Amendment rights of students. In holding that the speech regulations in question had to meet the standard created in the Court’s 1969 decision in Tinker v. Des Moines Independent School District, Alito made clear that blind deference to school officials’ justifications for censorship was simply not appropriate.

The Tinker case held that school officials could not prohibit students from wearing black armbands protesting the Vietnam War unless they could demonstrate that the expression would materially and substantially disrupt the work of the school or invade the rights of others. More than 30 years later, the case still provides protection for many kinds of student expression.

Judge Alito noted the strength of that protection in rejecting the school’s policy. “Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance,” he wrote. Speech that may be offensive to some but that does not pose a realistic threat of substantial disruption is within a student’s First Amendment rights.

Judge Alito’s opinion in Saxe leaves no doubt that the Tinker standard has teeth and that the protection of public school students’ expression, even when unpleasant, is important.

Kindergarteners have rights, too
But the decision that represents the most remarkable reflection of the nominee’s attitudes toward the First Amendment rights of students is one that established no law because this time Judge Alito was in dissent. Rejecting the decision by a majority of the 3rd Circuit judges to avoid a student First Amendment claim and joined by only one other judge on the en banc 12-judge panel, Alito stood up for the right of a kindergartener to express his religious views in a class project.

The case, C.H. v. Oliva (2000), arose after a New Jersey elementary school teacher posted her kindergarten students’ drawings of the things they were thankful for that Thanksgiving holiday. One parent claimed that school officials took down and then moved the picture of Jesus her son had drawn because of its religious content. The court majority said the parent had not sufficiently indicated that school officials had removed the drawing and sent the case back to the trial court to start all over again if the parent chose to amend her complaint.

Judge Alito believed that the majority’s action was “wasteful procedure.” He chose to address the First Amendment claim directly. And in doing so, he weighed in on an issue that courts across the country continue to debate: whether school officials can engage in “viewpoint discrimination” when they censor student speech in class discussions or assignments.

Most courts have agreed that student speech is entitled to the least First Amendment protection when it arises in the classroom or in a “closed forum” created by the school. But even in those restrictive environments, students are entitled to some First Amendment protections. What some courts are still debating is whether “viewpoint discrimination” by school officials (in essence, singling out a viewpoint for censorship while allowing opposing views) should be one of the things prohibited in almost all contexts.

In this case, Alito found that singling out religious expression for censorship was a form of viewpoint discrimination. And he concluded that the First Amendment might permit viewpoint-based censorship in those rare cases when a school could show it was necessary to avoid the material and substantial disruption recognized by the Tinker decision. But he said that in most situations, viewpoint discrimination would not be permitted.

“[V]iewpoint discrimination strikes at the heart of the freedom of expression,” he wrote. “And in order to restrict core First Amendment speech, much more is needed than the possibility that the speech may cause resentment.”

That Alito found the alternative disturbing says something about his commitment to the principles of our democracy and their relevancy to young people.

“[S]chool officials could permit students to express views on only one side of … controversial issues if the banned expression would cause resentment by some in the school,” he added. “Such a regime is antithetical to the First Amendment and the form of self-government that it was intended to foster.”

Conclusion
Of course, a cynical reading of each of these three opinions might lead one to believe that Alito’s conclusions had more to do with his conservative values than a principled commitment to free expression for all. And in fact, it would be fascinating to read his analysis of a case that involved a school’s efforts to punish a student for expressing, for example, anti-Catholic views.

Reading his rulings on student rights, one would have a difficult time concluding that Judge Alito doesn’t offer some real staying power to the First Amendment. Moreover, beyond his conclusions supporting free-expression protections, his words reflect a commanding respect for students — it is the kind of respect our legal system needs and our young people deserve.

Mark Goodman is the executive director of the Student Press Law Center in Arlington, Va.