Justice Alito's double standard for the First Amendment.

The law, lawyers, and the court.
April 30 2010 10:01 AM

Crush Democracy but Save the Kittens

Justice Alito's double standard for the First Amendment.

Samuel Alito. Click image to expand.
Justice Samuel Alito 

Since joining the Supreme Court in 2006, Justice Samuel Alito has been the main judicial roadblock to sensible campaign-finance laws. By equating money spent on elections with free speech and expression, in the name of the First Amendment, Justice Alito cast the deciding vote in a series of cases culminating with the Citizens United case opening the spigot for corporate money in elections. He authored a 5-4 decision emphatically rejecting the idea that campaign-finance limits could be justified as a means of preventing the wealthy from using their great resources to skew election outcomes and legislation. Indeed, he's twice gone out of his way to write separate opinions inviting future litigants to bring challenges to key Supreme Court precedents upholding campaign finance laws. At Wednesday's oral argument in Doe v. Reed, he alone sounded strident in opposing the disclosure of the names of people signing ballot measure petitions, on grounds that anonymity is part of the right of political expression. He sure sounds like a free-speech zealot.

Except when it comes to the kittens. 

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In last week's decision in United States v. Stevens, Justice Alito was alone in arguing for the constitutionality of a federal law barring the commercial creation, sale, or possession of certain depictions of animal cruelty. Congress apparently enacted the law to stop the distribution of "crush videos," in which a woman slowly crushes a small animal to death with her feet; these videos apparently appeal to a small group of people with a bizarre sexual fetish.

But the Supreme Court held the law violated the rights to free speech and expression because it covered all sorts of protected content, like some hunting videos. Chief Justice John Roberts, writing for a majority of eight, strongly rejected the idea that the law was constitutional because prosecutors would in fact prosecute only the really irredeemable videos involving "extreme cruelty" without social, scientific, or artistic merit: "The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."

Justice Alito, writing for himself alone, dissented. He said the court should read the law narrowly to apply only to those videos showing extreme cruelty. He trusted the government to prosecute responsibly. After quoting a particularly graphic description of a crush video involving the awful killing of a kitten, he analogized the law to one protecting against depictions of child pornography: "Preventing the abuse of children is certainly much more important than preventing the torture of the animals used in crush videos. … But while protecting children is unquestionably more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos."

Justice Alito could well be right; Stanley Fish thinks so, arguing that the courts have gone too far in protecting dangerous speech with no redeeming social value. (Michael Dorf is more ambivalent about Justice Alito's dissent.) I also don't begrudge Justice Alito for opposing the torture of kittens and siding with those who think the court has become absolutist about the First Amendment. But the Stevens case reveals Alito's indefensible double standard when it comes to free speech and expression.

In Stevens, Justice Alito thought these values must yield because he saw a sufficiently important government interest—preventing the torturing of animals. But the justice is blind to the strong governmental interests at play in the campaign-finance cases: imposing reasonable limits on money in elections to prevent corruption, stopping corporate wealth from overwhelming the political system, and telling voters who is supporting which candidates with their dollars and otherwise. Unlike the justice he replaced, Sandra Day O'Connor (whose vote in 2003 saved the McCain-Feingold law), so far Justice Alito has voted to strike down or limit nearly every campaign-finance law he's considered.

In the campaign-finance cases, Justice Alito does not trust the government to do the right thing. He does not think prosecutors will use their discretion wisely; at oral argument in Citizens United, he questioned whether the government would use its authority under campaign-finance laws to ban the sale of books. He seems to think that problems of corruption are not all that pressing. Or at least not as important as protecting kittens.

Congress is now considering undoing some of the damage of Citizens United in the new Disclose Act, just introduced by Sen. Charles Schumer, D-N.Y., and Rep. Chris van Hollen, D-Md. Besides strengthening campaign-finance disclosure laws, the law would bar corporations that are foreign-owned or are the recipients of government contracts from spending their general treasury funds on political campaigns.

Justice Alito will no doubt see the Disclose Act as one more threat to the part of the First Amendment he likes. In his view, the kittens must be kept safe. Democracy, not so much.

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Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and is writing a book on campaign finance and political equality. Follow him on Twitter.

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