Monday, March 07, 2011

Could Empathy Explain Justice Alito's Lone Dissents in Free Speech Cases?

By Mike Dorf

Last week's decision in Snyder v. Phelps--invalidating a jury award against Fred Phelps and the Westboro Baptists for their offensive protest near the funeral of a fallen U.S. Marine--produced essentially the same lineup as last year's ruling in United States v. Stevens, invalidating as overbroad a federal statute forbidding depictions of animal cruelty.  In both cases, Chief Justice Roberts wrote the Court's opinion and only Justice Alito dissented.  Because Roberts and Alito were named to the Court almost simultaneously and are rightly  regarded as very close to one another ideologically, it is worth asking why Alito, and only Alito, dissented in these two free speech cases.  I'm not interested in saying who's right and who's wrong, but in getting at the nature of the disagreement.

One might think that Justice Alito is a throwback to an earlier era when conservatives were relatively unsympathetic to free speech claims.  As I argued in my address to the Boston Bar Association last fall (summarized here), although a cross-ideological consensus now favors free speech, conservatives came to embrace free speech later than liberals did.  Perhaps Justice Alito falls within the older conservative tradition exemplified to some extent by the late Chief Justice Rehnquist.  I think this is a possibility but not a very strong one because in some respects, Alito is more speech-protective than some other conservatives, including CJ Roberts.  For example, in Morse v. Frederick--the "Bong Hits 4 Jesus" case--Justice Alito joined the majority opinion of CJ Roberts rejecting the free speech claim, but wrote a separate concurrence (joined by Justice Kennedy, the most speech-protective of the conservative justices and arguably the most speech-protective justice on the Court as a whole) in which he made clear that he did not understand the majority opinion to license suppression of messages advocating drug legalization or other views on matters of public policy.  More broadly, I think it unlikely that Justice Alito is outside the current mainstream on free speech.

Instead, I want to suggest an alternative hypothesis: Justice Alito is more moved by empathy for victims of hurtful speech than are his conservative (and liberal) colleagues.  There were no obvious victims of the "Bong Hits" message in Morse, and so Justice Alito was worried about the potential breadth of the Chief Justice's opinion.  By contrast, there were clear victims in both Stevens and Snyder.  Even so,  Justice Alito was not unsympathetic to the speech claims as such.  His dissent in Snyder goes out of its way to cite all the opportunities that the First Amendment affords to Phelps and the Westboro Baptists to express their view that God punishes American tolerance of homosexuality by killing American troops in war.  He writes:
They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964).
There is no reason to think Justice Alito is insincere in committing to protect the content of the Westboro Baptists' message in these fora, so his vote is hard to explain as rooted in hostility to the message itself.  That's not to say that Justice Alito isn't offended by the Westboro Baptists' views.  He clearly is.  But so is nearly everybody else in America--including every member of the majority.

What distinguishes Justice Alito's position from that of the majority in both Stevens and Snyder is the clear depth of feeling he expresses for the victims of the speech--animals subject to cruelty and grieving family members, respectively.  He writes in Stevens  that "[t]he animals used in crush videos are living creatures that experience excruciating pain."  In Snyder he repeatedly talks about the harm inflicted on the Snyder family in terms that draw no distinction between words and a physical attack.  Although the majority in each case takes pains to distance itself from the respective free-speech claimant, a fair reading of the opinions makes clear that Justice Alito feels more for the victims, or at least permits his feelings to play a larger role in his legal analysis than the rest of the Court does.  In a word, his emerging free speech jurisprudence displays greater empathy than does the jurisprudence of the rest of the Court.

Readers will recall that in 2009, President Obama said he was looking for a Supreme Court justice to replace Justice Souter who, among other things, would display empathy.  At the time, Obama was criticized by many on the right for seeming to suggest that his ideal Supreme Court justice would followed her feelings rather than the law.  The criticism was misguided in at least two respects.  First, Obama was not saying that a justice should follow empathy instead of following the law; he was saying that where the law is unclear, empathy for the powerless should be a factor in a justice's rulings.  Second, conservatives no less than liberals permit empathy to influence their interpretation of the law.  The graphic description of a "partial-birth abortion" in Justice Kennedy's majority opinion in Gonzales v. Carhart is a leading example.  One can readily find many other examples in criminal cases in which the Court recites the grisly facts of the case even when they are not directly relevant to the legal claim at issue.  Doing so--and then voting against the claims of the criminal defendant--is a way of expressing empathy for crime victims.

So every justice feels and sometimes expresses empathy in his or her opinions.  The question remains why Justice Alito seems to feel and be moved more strongly by empathy for free speech victims than do the other justices.  I don't really have an answer to that question, which probably lies more in the realm of psychology than law anyway.  One incomplete hypothesis would point to his pre-judicial experience.  CJ Roberts and Justice Alito both worked in the Justice Department, but Roberts was in the Solicitor General's office, where the issues are necessarily more abstract and distant from the facts on the ground.  By contrast, Alito was a prosecutor with responsibility for concrete cases at trial.  Perhaps the different experiences made Alito more attuned to concrete impacts.

This is at best a partial explanation, however, because it doesn't differentiate speech cases from other categories of cases.  In addition, Justice Sotomayor was a prosecutor as well, but we find her in the majority in both Stevens and Snyder.  In the end, I'm left with a question about the precise source of Justice Alito's distinctive jurisprudence with respect to speech-harms.  I welcome further hypotheses and speculation.


Howard Wasserman said...

A friend of mine--a former Alito clerk and former prosecutor--had made a similar point about Alito's experience as a prosecutor and the gut instinct of "this is wrong, someone is being hurt, and the wrongdoer should be prosecuted."

egarber said...

In his confirmation hearing, he essentially said that the background story matters (partly because of his personal experience), when it comes to cases involving say, discrimination. In fact, it was really a pretty eloquent elaboration of what Obama meant by "empathy."

So maybe he applies a flavor of realism that makes him slightly different than the other conservatives. Perhaps he sees a certain need for balancing, where others don't. I may be way off, but it sort of reminds me of how O'Connor approached the Establishment Clause.

Unknown said...

What are the chances Alito will go 0 for 3 with the California video games case? Recall the exchange on Madison between him and Scalia.

Joe said...

See also, his Ricci v. Stefano concurrence.

Does seem to have shades of empathy. Nothing wrong with empathy if properly applied. But, since Alito is the ideal judge of those who criticized Obama on that point, I'm seeing (shocker) inconsistency.

Anyway, a public place a few buildings away is also "public fora" as is the Internet. Arbitrary distinctions is not the proper way to apply empathy.

michael a. livingston said...

I think this case is a classic example of the difference between legal and ordinary human thought. If you told the facts to eighty laypeople, probably about eighty of them would hold against the protesters. But the precedents (looking forward and back) made it hard to hold this way.

J Pahnke said...

Prof Dorf: Though perhaps in some respects empathy does play a role in ANY judicial decision, (the question being for which side's position), and I agree that justice Alito is not "out of the mainstream" when it comes to free speech jurisprudence-- I'm sure in that regard this member of arguably the most influential law-interpreting body in the world would appreciate your approval! ;)-- I am not so sure that empathy is the touchstone of Alito's decision- making process in these cases as you would have it.

For one thing, at least judging from Alito's actual and expressed legal reasoning in the Snyder case, (which has been addressed fairly extensively on the ACLP's blog), your speculation on empathy ignores that Alito disagrees with the majority's application of Hustler v. Falwell and other precedents to the Westboro Baptist church case. Indeed, the extent to which he distinguishes precedent from the majority's opinion suggests a more principled stance on the law than you afford him.

Secondly, Justice Alito goes to some pains in his dissent to emphasize that under Maryland law the stringent state requirements for meeting the elements of Intentional Infliction of Emotional Distress torts had clearly been met in this case.

Indeed, from this perspective, though I haven't fully researched the trial court decisions in the other cases you cite, couldn't it rather be that Justice Alito merely prefers, in controversial or "close" cases, to trust the judgment of those "closer to the ground" in such decisions? (i.e., the political branches and the decision of juries who have had a chance to more closely examine the supporting evidence and judge credibility at trial?)

This, to me, seems at least equally plausible as the theory you proffer.

Joe said...

"eighty laypeople"

I don't think eighty "ordinary" people would decide differently.

For instance, I know a conservative leaning non-legal sort who was upset when a child molester was not given basic protections in court. Stereotypical thinking would suggest she would not care.

Many ordinary people actually have basic firm ideas about things and are if anything more doctrinaire about them than judges.

Joe said...

["different" doesn't mean 80 ordinary sorts would vote 70-10; it does mean I think many would agree with the Supreme Court. Push comes to shove, I wouldn't be surprised if a majority did. A look at comments in a NYT discussion blog about it, filled with "non-legal" types, suggests as much.]

darrowret said...

I find it odd--and regrettable---the the Court obliterated (or simply ignored) the disticnction between public and private figures that had been recognized in Gertz v. Welch. Differing views of the Gertz case were central to the to the differing results reached by the District Court and the Court of Appeals, but neither the majority nor the dissent even mentioned that case.

Speech about public matters that is directed at a private individual may merit constitutional protection, but should there not be a requirement of some rational and significant connebon with the individual in order to enjoy that protection? In this case the Snyder family members were simply used as props by the Westboro Church. Such use, I suggest, should provoke not only empathy but legal consequences

J Pahnke said...

darrowret: Perhaps not Gertz v. Welch, but what about Alito's reference to Hustler v Falwell which touched upon the same issues (albeit tangentially)? On your comments re: the use of the Snyders as Props, (which Alito definitely addresses aptly in his dissent), I quite agree with you. Indeed, it is, I think, one of the key reasons that finding in favor of the Snyders would not necessarily have done the violence to Free Speech the majority felt it would. Ahh, well. At least we can take solace in knowing that today's dissents can often lay the groundwork for better (and more thoughtful) decisions in the future. jp

michael a. livingston said...

I think what is sad is the sense of, well, decadence that arises from this decision even though I recognize that it's likely correct. The argument for lower taxes becomes "any tax is bad;" the argument for free speech degenerates into a search for the vilest, most obnoxious speech that can possibly be defended. I see less and less real debate and more and more verbal pollution: legally defensible, perhaps, but morally?

J Pahnke said...

Michael A Livingston: Having been on the receiving end of some pretty despicable "verbal pollution" myself I tend to agree with you that personal smear and attack is not "debate;" And while I reject the blamestream media's caricature of the right as the cause for everything from the Tucson shootings to acne, I think one of the unfortunate casualties of the Snyder decision will be a further coursening, on both right and left, of public debate on critical issues at a time our nation can ill afford it. But your comments raise an interesting third hypothesis of relavance to the discussion. Could morality, as opposed to emphathy, be the basis for Alito's decision in Stevens and Snyder? More succinctly, can morality EVER be an appropriate basis for rulings from the bench? Or is law ALWAYS the imposition of someone's "morality," (i.e., sense of right v. wrong). Just as one man's "verbal pollution" might be deemed another's "free speech," is the very act of legislating necessarily an act of imposing "morality" on society? (and just a question of whose morality?) Interesting questions indeed. jp

michael a. livingston said...

Yes an old question of law and morality, supposedly one of the advances of Western Civilization was separating these two, but maybe we've taken the separation a little bit too far?

J Pahnke said...

What?!? Do you mean to suggest that morality can actually play a legitimate role in legislating? You must be an intolerant right-wing Tea Bagger! ;) (btw, "Tea Bagger" is not a derogatory term, but as a certain other estwhile editorialist on here surely must agree, is rather a term of endearment ;)

Michael, as reasonable a person as you seem to be I think you might appreciate some of the posts on the ACLP blog. Check it out if you're so inclined! jp

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