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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.

 

Some SCOTUS funny drawings from the talented Art Lien.

In his opinion in Staub v. Proctor Hospital Justice Scalia said it was a “cat’s paw case”.

And Chief Justice Roberts, to explain why the Court unanimously found that AT&T does not posses personal privacy, even if it is a person, cited the distinct meanings of “corn” and “corny”, and “crank” and “cranky”

Sigh. Some comments from the Westboro Baptist attorney who was victorious today in Snyder v. Phelps.

We are trying to warn you to flee the wrath of God, flee the wrath of destruction. What would be more kind than that…. Shut up all that talk about infliction of emotional distress. When you’re standing there with your young child’s body bits and pieces in a coffin you’ve been dealt some emotional distress by the Lord your God….

And what did Phelps have to say about Justice Alito’s dissenting opinion?

“He simply didn’t follow his oath, he’ll have to take that up with God. I very much appreciate the fact that I get to be the mouth of God in this matter.”

The Church will apparently quadruple funeral protests going forward.

More from ABC News. H/T Religion Clause

Justice Alito’s concurring opinoin in Pepper v. United States was somewhat critical of the Justice Sotomayor’s opinion finding that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation, and such evidence may, in appropriatecases, support a downward variance from the now-advisory Guidelines range. Alito is concerned that providing more discretion to Judges may warrant a re-examination of Booker!

By the time of the enactment of the Sentencing Reform Act in 1984, this scheme had fallen into widespread disre-pute. See, e.g., Mistretta v. United States, 488 U. S. 361, 366 (1989) (noting “[f]undamental and widespread dissat-isfaction with the uncertainties and the disparities” of thisscheme); United States v. DiFrancesco, 449 U. S. 117, 142 (1980) (“It has been observed . . . that sentencing is one of the areas of the criminal justice system most in need of reform”); S. Rep. No. 98–223, p. 62 (1983) (“The shameful disparity in criminal sentences is a major flaw in the existing criminal justice system”). Under this system, each federal district judge was free to implement his or her individual sentencing philosophy, and therefore the sentence imposed in a particular case often depended heavily on the spin of the wheel that determined the judgeto whom the case was assigned. See Bullington v. Mis-souri, 451 U. S. 430, 444, n. 16 (1981) (“There has been no attempt to separate policymaking from individual sentenc-ing determinations” (internal quotation marks omitted));M. Frankel, Criminal Sentences: Law Without Order 5 (1973) (“[T]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences areterrifying and intolerable for a society that professes devotion to the rule of law”).

Some language in today’s opinion reads like a paean tothat old regime, and I fear that it may be interpreted assanctioning a move back toward the system that prevailed prior to 1984. If that occurs, I suspect that the day will come when the irrationality of that system is once again seen, and perhaps then the entire Booker line of cases will be reexamined.

In Bryant v. Michigan we saw a backlash against the Crawford confrontation line of cases. Are we heading towards a Booker backlash?

From the Chicago Tribune:

Illinois State Police defended their policy of keeping the names of firearm owner’s identification cardholders private afterAttorney General Lisa Madigan‘s public access counselor issued a letter Tuesday rejecting the state police’s arguments for keeping the information confidential.

State police reasoned that releasing the information would be an unwarranted invasion of privacy prohibited by the state’s open records law and that its disclosure would endanger the lives of gun owners, according to the letter issued by the public access counselor.

A few weeks ago I blogged about the New York Times listing gun owners in NYC. I commented about the publication of the names of those who exercise a constitutional right:

I wonder what happens if the TImes published a list of people who exercised other constitutional rights–say freedom of religion, reading treacherous books, or… not even going to say it.

Dan Filler has similar thoughts at the Faculty Lounge:

If we take seriously the right of individuals to carry guns – but we continue to imagine that states have a right to regulate them – to what degree should licensing information be allowed to be made public?   I suppose there are practical questions.  Disclosure of this information might make individuals safer.  After all, now you know who not to fool with.  On the other hand, it also might provide information useful to burglars seeking repositories of valuable goods.

But some people might not want this information public.  For example, in some social circles, possessing a gun is taboo.  And many protective parents might not want their kids on a play date in a home with weapons.  (At minimum, it might spur serious conversations with other parents about how guns are stored – conversations that might actually be quite productive.)  There might even be conservative gun supporters who don’t carry themselves – for personal reasons – but wouldn’t want to disclose that fact to other gun advocates. Does the right to possess a gun include the right to do so secretly?  Does public disclosure burden the right significantly?

I’ll keep an eye on this.