By Jeffrey Rosen
Sunday, March 6, 2011; 12:00 AM
By an 8 to 1 vote this past week, the Supreme Court upheld the First Amendment right of Kansas's Westboro Baptist Church to engage in hateful protests at military funerals. The lone dissenter was Alito, who insisted that the grieving relatives of Matthew A. Snyder, a Marine who died in Iraq, should be able to sue the church for a "vicious verbal assault" that violated their privacy and dignity.
The Westboro case is just the latest lopsided victory for free speech at the Supreme Court, including an 8 to 1 decision last year striking down a federal law making it a crime to distribute videos depicting animal cruelty. Once again, the only dissenter in that case was Alito, who insisted that Congress had the power to ban "a form of depraved entertainment that has no social value."
More than any other justice, Alito is emerging as a stalwart defender of privacy, particularly in cases with strong free speech interests on the other side. He cares more about the government's ability to protect a range of privacy values - including dignity, anonymity and community standards of decency - than anyone else on the court.
As a privacy defender, I find that Alito sometimes goes too far in favoring privacy over free speech, even for my taste (like the man on the Titanic who said, "I asked for ice, but this is ridiculous"). Yet his emergence as a guru on these issues should come as no surprise. As a Princeton student in 1971, Alito chaired a student conference on surveillance, data-gathering and privacy, which produced a sweeping report declaring that "we sense a great threat to privacy in modern America" and that "privacy is too often sacrificed to other values."
Before Alito's confirmation hearings in 2006, Marc Rotenberg, head of the Electronic Privacy Information Center (EPIC), called Alito's report "amazing" and "a dramatic statement in support of the right of privacy." EPIC, on whose advisory board I serve, has cited the Princeton manifesto in several Supreme Court briefs in cases where Alito has taken a strong pro-privacy position.
One of those cases was Doe v. Reed, in which the court held last June that the First Amendment doesn't categorically prohibit a state from disclosing the names and addresses of people who sign referendum petitions. Alito wrote a concurrence offering a loophole. Noting that "individuals have a right to privacy of belief and association," he suggested that citizens who signed anti-gay-rights petitions might challenge the disclosure requirement in future cases if they could show that revealing their names might lead to harassment.
In another recent case, decided in January, Alito held for a unanimous Supreme Court that NASA's background checks didn't violate the constitutional right of informational privacy. Unlike Justice Antonin Scalia, who wrote a separate concurrence declaring that "a federal constitutional right to 'informational privacy' does not exist," Alito assumed for the sake of argument that such a right does exist - a victory for privacy. He went on to say that NASA's questions about job applicants' past drug use were reasonable because the Privacy Act prohibits the government from disclosing the answers more broadly.
The Supreme Court will decide two more cases this year in which Alito appears ready to favor privacy and community standards of decency over free speech. In November, the court heard oral arguments in a challenge to a California law banning sales of violent video games to minors. Lower courts have held that similar laws violate the First Amendment, and many of the justices seemed to agree. Upholding the ban, after all, would require extending the category of what's indecent for minors, currently limited to sex.
Alito, however, appeared sympathetic to the California law. When Scalia said that the framers of the First Amendment never anticipated that the government could ban depictions of violence, Alito shot back in sarcasm: "What Justice Scalia wants to know is what James Madison thought about video games."
This year the court will also decide whether to uphold a Vermont consumer privacy law against a First Amendment challenge brought by pharmaceutical companies that want to mine the data in prescription records for commercial purposes. EPIC has filed a brief arguing that Vermont has a substantial interest in protecting patient privacy. "We believe that Justice Alito will vote to uphold the Vermont privacy law because of his strong interest in protecting the privacy of consumer data," Rotenberg told me. "If you put all these opinions together where Alito has favored privacy over free speech, it could be quite a remarkable term."
Alito doesn't always side with privacy over free speech, of course. He joined a unanimous opinion on Tuesday holding that corporations don't have "personal privacy" rights that can defeat a Freedom of Information Act request for corporate data. And he joined a 5 to 4 decision in 2009 holding that when the police rely on erroneous information about a suspect in a government database to make an arrest, any evidence found afterward need not be excluded from the trial.
All this suggests that Alito's defense of privacy is part of his broader tendency to be deferential to Congress, state legislatures and local communities. Between 2006 and 2009, according to the Supreme Court database, the Roberts Court struck down six acts of Congress as unconstitutional. Alito voted with the majority in only two of these cases, fewer than any of the other conservative justices. During the same period, the court struck down nine state or municipal regulations on constitutional grounds. Alito voted with the majority in only three of these cases, fewer than any of the conservatives except Clarence Thomas.
Alito is sometimes willing to strike down federal laws in the name of free speech: He joined the majority in the 5 to 4 Citizens United decision in 2010, rolling back campaign finance reform, and famously mouthed "not true" when President Obama denounced the ruling in his State of the Union address.
Nevertheless, far from becoming the Scalia clone some predicted, Alito recognizes the fundamental value of privacy and has distinguished himself from the court's other conservatives. Civil libertarians may worry that he goes too far defending privacy over free speech, but his emergence as a privacy champion is especially welcome on a court where there are few consistent advocates for the communal values that privacy protects.
Jeffrey Rosen, a George Washington University law professor, is the legal affairs editor of the New Republic and a nonresident fellow at the Brookings Institution.