New Supreme Court nominee sided with student newspaper

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WASHINGTON, D.C. — President George W. Bush’s new Supreme Court nominee Samuel Alito sided with student media in at least one First Amendment case during his tenure as a federal appeals judge.

In a July 2004 decision Alito ruled as part of a three-judge panel for the 3rd U.S. Circuit Court of Appeals that a Pennsylvania law banning paid alcohol advertisements in student media violated the First Amendment.

Alito wrote the opinion in The Pitt News v. Pappert, which said a law banning alcohol advertisements “unjustifiably imposes a financial burden on a particular segment of the media, i.e. media associated with universities and colleges,” according to the opinion. “Imposing a financial burden on the speaker based on the content of the speaker’s expression is a content-based restriction of expression and must be analyzed as such.”

The loss of income, approximately $17,000 in 1998, limited the newspaper’s capital expenditures and “harmed The Pitt News’ ability to compete for readers,” according to the opinion.

The student newspaper at the University of Pittsburgh filed a lawsuit in July 1999 after the state alcohol licensing board contacted one of The Pitt News’ advertisers and threatened it with sanctions if it continued to advertise in the paper. A lower court had upheld the law.

Alito has written opinions in at least two other cases that have dealt with students’ free expression rights. In Saxe v. State College Area School District, he wrote an opinion in which the 3rd Circuit ruled that a public school’s anti-harassment policy violated the First Amendment.

“There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause,” Alito wrote. “There is of course no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause. But there is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs.”

In C.H. v. Oliva, Alito wrote an en banc dissenting opinion saying, “Instead of confronting the First Amendment issue that is squarely presented by that incident, the court ducks the issue…”

The case involved alleged censorship of a kindergartner’s Thanksgiving poster because of its religious content.

“Accordingly, viewpoint discrimination is prohibited even in a nonpublic forum if strict scrutiny cannot be satisfied, and discrimination based on the religious content of speech is viewpoint discrimination,” according to the dissenting opinion. “It follows that public school authorities may not discriminate against student speech based on its religious content if the discrimination cannot pass strict scrutiny.”

Bush appointed Alito this morning to replace Justice Sandra Day O’Connor after White House counsel Harriet Miers withdrew her name from consideration last week.

—by Kyle McCarthy, SPLC staff writer

Read previous coverage on The Pitt News v. Pappert:

Read previous coverage on Saxe v. State College Area School District: