Alito stands alone on Supreme Court's First Amendment cases

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The case of the Westboro Baptist Church

The Supreme Court takes up the battle over how the Westboro Baptist Church spreads their message that the nation's tolerance of homosexuality has drawn God's condemnation.

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And it highlights a significant difference in approach between Alito and Roberts, who often end a term agreeing in cases more than any other pair of justices.

"Between this case and [Stevens], free speech is the area in which the split in their views is most stark," said Thomas C. Goldstein, a Supreme Court practitioner who runs SCOTUSblog.com. "But I would expect to see more examples like this in the future."

He said he thinks Alito is on a "trajectory similar" to that of Justice Clarence Thomas.

"As he is on the court longer, he is developing independent views on a lot of issues," Goldstein said. "And he does not hesitate to stand alone on principle."

Some liberals have complained that Alito's view in the Snyder case is at odds with his vote in Citizens United v. Federal Election Commission that said corporations have a free speech right to play a larger role in election spending.

Goldstein and others disagree.

"I think the criticisms of Alito as being inconsistent in light of the campaign finance cases are wrong," he said. "In his view, the First Amendment has a core value relating to political speech. In his view, extending it to protect videos of animal cruelty and exploitation of a military funeral goes too far. The rest of the court obviously disagrees, but his position seems completely coherent."

Paul D. Clement, who was solicitor general in the Bush administration, said Alito's views on the First Amendment "strike me as defying easy categorization."

He added: "You can look at this decision and Stevens and say is he is the court's leading voice against First Amendment absolutism."

But in other cases involving the First Amendment, "he seems to have gone out of his way to express a view more protective of speech than the court's opinion."

In two of those cases, involving the privacy rights of those who sign petitions and the speech rights of a high school student, Roberts wrote the majority decision.

The court has another First Amendment decision pending, on whether California may ban the sale of violent video games to minors.

During oral argument in that case, Alito seemed to show his hand.

"Your argument is that there is nothing that a state can do to limit minors' access to the most violent, sadistic, graphic video game that can be developed," Alito said to an attorney for the video game industry.

"That's your argument?"