There have been two big First Amendment cases in the past 2 terms. Last term, the Court decided United States v. Stevens which considered the constitutionality of a statute that criminalized the distribution of so-called “crush videos” (basically videos of killing cute fuzzy animals). This term, in Snyder v. Phelps, the Court decided whether the protests of the Westboro Baptists at the funeral of slain Marine Matthew Snyder were constitutionally protected. In both cases, 8 Justices found that the laws were unconstitutional. In both cases Chief Justice Roberts wrote a very narrow opinion protecting free speech, but leaving many questions open. In both cases, Justice Alito was the lone dissenter.

While this is certainly a small sample size, I am sensing a trend. The Chief, who has shown hostility to certain forms of egregious speech and a penchant for paternalism during oral arguments in Stevens, Snyder, and Schwarzenneger v. EMA [to be decided], has united the Court, assigned the opinion to himself, and written very narrow opinions.  This may be the start of a new trend. it seems that Justice Alito is the justice most willing to permit the regulation of the freedom of speech to achieve certain moral interests.

Consider these passages from Alito in Stevens:

The animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country.

Finally, the harm caused by the underlying criminal acts greatly outweighs any trifling value that the depictions might be thought to possess. For these dogs, unlike the animals killed in crush videos, the suffering lasts for years rather than minutes. As with crush videos, moreover, the statutory ban on commerce in dogfighting videos is also supported by compelling governmental interests in effectively enforcing the Nation’s criminal laws and preventing criminals from profiting from their illegal activities.

Here is Alito in  Snyder:

Our profound national commitment to free and opendebate is not a license for the vicious verbal assault that occurred in this case.
Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such anincalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprivedhim of that elementary right. They first issued a pressrelease and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church,approached as closely as they could without trespassing,and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity theWestboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree inTucson—proclaiming that she was “better off dead”11— their announcement was national news,12 and the church was able to obtain free air time on the radio in exchange for canceling its protest.13

Our profound national commitment to free and opendebate is not a license for the vicious verbal assault that occurred in this case.
Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such anincalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprivedhim of that elementary right. They first issued a pressrelease and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church,approached as closely as they could without trespassing,and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

Whether evoking images of cute cuddly kitties getting stomped, or Albert Snyder’s tortuous time during his son’s funeral, Justice Alito wears his heart on his sleeves. And these emotional appeals tug heavily on his jurisprudence.

Let’s see what the Court does with EMA. If we see another 8-1 opinion, with the Chief writing for the majority, and Justice Alito writing a solo dissent, we may have a trend on our hands.