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.